ParPolity: Political Vision for a Good Society

(This draft benefited from conversations with many people, but especially Michael Albert and  Cynthia Peters, and from feedback at a panel discussion in Porto Alegre on political vision and from very helpful comments from students at the Z Media Institute. I particularly profited from an essay posted in ZNet’s ParEcon Forum by Gar Lipow, that grappled with the question of political vision, sometimes coming to the same conclusions as me, sometimes not. None of these people are responsible for any of the views expressed here.)

The relevance of political vision

 

1.1 Why should we be interested in thinking about what the political system of a good society might look like? There are two main reasons.

 

1.2 First, because you needs to know where you want to end up if you want to know which path to take. Every political activist chooses strategy and tactics based on whether or not they bring us closer to our goal. Therefore, if we are to choose the appropriate strategy and tactics, we will need to have some rough idea of the goal to which we aspire.

 

1.3 Second, we need to show people that an alternative is possible. One of the most powerful arguments in favor of the status quo is that “there is no alternative.” Unless we can demonstrate that society can be organized to realize our values, it will be impossible to convince people to make the commitment and sacrifices necessary to challenge that status quo.

 

1.4 Several arguments have been advanced against thinking about political vision (or any vision, for that matter).

 

1.5 One such argument is that it is arrogant and elitist for a few individuals to put forward a vision for the rest of us.

 

1.6 Certainly it would be elitist and downright dictatorial for a few to impose a vision on. But no one is imposing anything on anyone. An attempt at formulating a plausible, but attractive vision is being made. It is offered up for discussion. If it is not discarded and replaced with something else better, then it will surely be modified, many times and in substantial ways. But if no one offers up anything for discussion, then the discussion never takes place. I give specifics, just to show that the goals we want are possible, but this doesn’t mean that the specifics are the final word. They are meant to begin the conversation on vision, not end it.

 

1.7 A second argument is that ideas come from practice, from struggle, from real activities, not from theorizing from the top of a mountain.

 

1.8 Of course they do, and that’s where my ideas come from, from my own experiences and my reading of the experiences of others. And of course any proposed visions have to be measured against what we learn from new struggles and from new social experiments – and revised or rejected accordingly. But the fact that a vision was not issued as a communiqué from a revolutionary struggle somewhere does not invalidate it: it needs to be invalidated – or validated – on its merits. Moreover, since the political vision described here presupposes a compatible economic vision and a long-term context, there are not likely to be many relevant real-world experiences. The much-studied experience of participatory budgeting in Porto Alegre, Brazil, for example, as valuable as it is, exists within an environment of extreme economic inequality; naturally, what is needed and what will work in an environment of great inequality is far different from what is needed and can work in an environment with basic equality. Other examples are often short-lived experiences that, however inspiring, cannot tell us much about what is possible on a long-term basis. So, as important as real-world experiences are, they are not sufficient alone without some theorizing as well.

 

1.9 Similar to the previous objection, it might be asked how can we in 2005 be proposing vision for a new society that is decades away?

 

1.10 It’s quite true that we can’t expect a vision put forward today to be appropriate and compelling many years hence. But consider an analogy. Scientists put forward theories about the cosmos, about subatomic particles, about the human genome based on very little data. As more data became available, those theories were revised or sometimes discarded entirely. But no one would have thought to say to the scientists “don’t theorize today because your theories will be revised when there is more data in the future.” As political activists our situation requires at least as much theorizing as is done by natural scientists. If astronomers held off their theorizing about the nature of the universe until vastly larger amounts of data were in, not much would be affected. But if we don’t theorize about our goals, our ability to gain adherents to our cause or to choose appropriate strategy and tactics will be compromised. To be sure, our strategy and tactics will probably not be optimal (because the vision we are now measuring it by will probably be substantially modified), but our best judgment of our vision today will give us the best chance of pursuing appropriate strategy and tactics.

 

1.11 A final objection asks “OK, but how do you get there?”

 

1.12 Clearly this is an important question. But one essay cannot deal with everything. It doesn’t seem illogical to figure out where you would like to go and then see how to get there. Obviously, if it is later shown that there is no way to get there, then the destination has to be rejected. This is true even when considering far more modest changes. Say we are unhappy with the current health care system. The first thing we would do is inquire if some form of national health care is desirable and feasible. If our answer to these questions is yes, then we would inquire as to whether we can get there from here. That’s an important question, but it is logically subsequent to our being able to describe a desirable and feasible alternative.

A political system that is appropriate for ParEcon

 

2.1 The political system of a good society is only one aspect of that society. Every society needs to deal as well with economics, family life, international relations, and so on. By focusing on politics here there is no implication that these other matters are unimportant. They are in fact critical. However, one essay cannot cover everything.

 

2.2 In any vision of a good society, the various components – economics, politics, family, etc. – would have to be compatible. I am going to take as a given that the economy will be run according to the principles of Participatory Economics, or ParEcon for short. (See Michael Albert, Parecon: Life After Capitalism, London: Verso, 2003, for the latest elaboration of this model.) I choose this because, one, I personally find it to be the most compelling vision currently put forward, and, two, because it seems to be compatible in terms of basic values and structures with the political vision I describe.

 

2.3 The basic features of a participatory economy are (1) goods and services are produced according to a plan developed by an iterative procedure of democratic, participatory planning by consumers and producers councils; (2) people are remunerated not for capital or skills or output, but for effort; and (3) everyone has a balanced job complex – a mix of empowering and disempowering jobs – so as to share the burdens and benefits of each.

 

2.4 So what political system – what kind of polity -- would be appropriate for such a society? For convenience, though certainly not elegance, I will call this political system ParPolity.

Why do we need a political system at all?

 

3.1 The first question to be addressed, however, is why there is a need for a political system at all. Many of the conflicts in capitalist societies today can be traced to the economic system. This has led some critics of capitalism to argue that once the capitalists are expropriated, there will be no more divergent class interests, and hence no need for parties, and indeed no need for politics.

 

3.2 Many of those working against racism, sexism, and heterosexism would argue that class is not the only source of clashing interests. In principle, we can imagine a society that has eliminated capitalism, but yet has conflicts over racial, ethnic, gender, or sexuality issues. It might be replied that the struggle to overcome capitalism will necessarily be anti-racist, anti-sexist, and so on (or else it won't succeed), and thus inequalities based on race or gender will disappear at the same time as those based on class – not automatically, but as a natural result of a struggle that combines all these concerns.

 

3.3 One would hope this were true, but even if so, there will still be many issues that will divide people in a good society. These issues may not be as fundamental as those that were integral to capitalism, or even to capitalism overlain with patriarchy, institutional racism, and the like, but they are issues that have evoked passionate controversies on the left, that is among those who are agreed on the need to end patriarchal, racist, capitalism. Here are just a few issues that will continue to vex us in "life after capitalism":

 

·         animal rights (should meat-eating be outlawed as immoral?)

·         pornography (is it inherently oppressive to women or an expression of individual autonomy?)

·         prostitution (in a society without economic exploitation is it possible for someone to "choose" to be a sex worker?)

·         deep ecology (to what extent should we treat the environment not just as something to be protected so that it can continue to sustain us in the future, but as something of value independent of all human benefit?)

·         drug legalization

·         multilingualism

·         children's rights

·         allocation of expensive or scarce medical resources, like heart transplants

·         cloning

·         surrogate motherhood

·         euthanasia

·         single-sex schools

·         religious freedom when the religions violate other important societal values, like gender equity.

 

3.4 On top of this, there are issues that are generally supported by the Left, but not universally so, and about which we can imagine continuing debates in a good society: for example, the extent to which we should recognize abortion rights or preferential policies for members of previously oppressed groups.

 

3.5 And then there are issues that would arise from the fact that the whole world may not become "a good society" all at once – what might be called the "socialism in one country" problem. How will we deal with questions of foreign policy, trade, or immigration?

 

3.6 In short, even in a society that had solved the problem of economic exploitation and eliminated hierarchies of race, class, and gender, many controversies – many deep controversies – would still remain. Hence, any good society will have to address issues of politics and will need some sort of political system, a polity.

What values do we want for our political system?

 

4.1 The values that we want from a good political system are similar to those of ParEcon.

 

4.2 Liberty. We want the policies that affect us to correspond as much as possible to our own desires, but without intruding on any one else's ability to have policies that correspond to their desires.

 

4.3 Justice. we want a fair society, one that treats each human being equally.

 

4.4 Participation. We want a political system that doesn't just produce results that benefit us, but one in which we participate in the decisions that affect our lives. Why? Because self-management makes us more fully human. Politics is not just a means of attaining our ends but is also a means of defining who we are and hence what our ends are. Moreover, no political system is likely to produce results that benefit us unless there is some means of knowing what it is that benefits us, and this is not given, but emerges only after public deliberation. Our participation helps to define and create our preferences, which is what the polity is seeking to address.

 

4.4.1 Now this can be overdone. Political activists should not assume that everyone has the same enthusiasm for politics – for meetings, for debates, for reading about politics – as they do. Just as people vary in their preferences and capacities for music or crafts or mathematics, so too will they vary in their attitude toward and talent for politics. So we don't want a polity that requires everyone to value political participation as much as full-time political activists do today, or that penalizes those without a flair or an interest in politics by somehow denying their interests equal consideration. But some degree of participation – less than that of political fanatics, but more than that of most citizens of capitalist democracies – is essential.

 

4.4.2 Moreover. participation takes time, and time spent participating takes away from time that can be spent on other things. So while participation is important for us all, we want to make sure that it doesn't impose excessive time demands upon us.

 

4.3 Solidarity. We want a political system that allows and encourages us to take account of our common interests with others, that promotes cooperation, and that helps us see how our lives and interests are intertwined with those of others.

 

4.4 Tolerance. Because people have different views of the good life, a good political system should promote diversity, allowing as many different visions of the good life as possible, so long as they don't deny that same tolerance to others.

 

5.0 Any political system has to accomplish some basic functions: it has to have some means of making group decisions; it has to have a way to carry out those decisions; and it has to have means of resolving disputes. These functions are typically called legislative, executive, and judicial functions, respectively.

Legislative Functions

5.1 I propose that legislative functions be carried out by a system of nested councils. Here is one way that such a system might function.

 

5.2 There would be primary-level councils that would include every adult in the society. The number of members in these primary-level councils would be somewhere between 25-50. Each primary-level council would choose a delegate to a second-level council. (Each second-level council would be composed of 20-50 delegates, probably the same size as the primary councils, but not necessarily so.) Likewise, each second-level council would  choose delegates to third-level councils, and so on, until there was one single top-level council for the entire society.

 

5.3 The number of members on each council would be determined on the basis of a society-wide decision, and perhaps revised on the basis of experience, so as to meet the following criteria: small enough to guarantee that people can be involved in deliberative bodies, where all can participate in face-to-face discussions; but yet big enough so that (1) there is adequate diversity of opinion included; and (2) the number of layers of councils needed to accommodate the entire society is minimized. For example, if all councils have 25 members, then, assuming half the population consists of adults, then 5 layers could accommodate a society of 19 million people; with councils of 40 members, 5 layers could accommodate 200 million people; and 50-person councils could accommodate 625 million people by the fifth level. With a sixth level, even 25-person councils could accommodate a society of about half a billion people.

 

5.4 These delegates would be charged with trying to reflect the actual views of the council they came from. But they would not be "mandated": that is, they would not be told "this is how you must vote," for if they were then the higher council they were attending would not be a deliberative body. In fact, the delegates could then be easily replaced by a computer message relaying the sentiments of the lower council.

 

5.5 If someone on a second-level council is chosen as a delegate to a third-level council, the primary council of which that delegate was a member sends a replacement delegate to the secondary level council. This replacement delegate attends both the primary level and the second-level council, is recallable by the primary level council and seeks to reflect the actual views of that primary council. The delegate chosen to the third level-council continues to attend the second-level council and the third-level council, is recallable by the second-level council, and seeks to reflect the actual views of that second-level council. In this way, the primary council remains organically connected to the second level council, and the second to the third.

 

5.6 Councils at every level would be deliberative bodies.

 

5.6.1 A deliberative political process is a natural concomitant of ParEcon where the economic plan is developed by a constant back and forth, continually seeking to accommodate people's consumption and production requests.

 

5.6.2 The size of the councils would be conducive to face-to-face deliberation, their procedures and culture would emphasize discussion and accommodation rather than scoring debater's points and vanquishing one's opponents, participants would be expected to give reasons for their views framed in terms of the public good, rather than self-interest.

 

5.7 The councils would operate by consensus where possible, majority rule where not.

 

5.7.1 Whenever possible, consensus would be sought. However, to insist on consensus in every case is to give every individual the power to block the overwhelming majority. Such an approach is ill-advised. It is sometimes said that even a large group should be forced to respect and acknowledge the sentiments of a single dissenter who feels strongly on an issue. Respect and acknowledgment are fine; but the question is whether the strong feelings of the one dissenter should invariably be able to block the equally strong feelings of everyone else. Say there is general agreement to provide abortion procedures at a local health clinic. One individual deeply and strongly considers such an action to be murder. The others, however, hold equally deep and strong views that to prohibit abortion is to violate women's most fundamental rights. They talk, they debate, they respect the moral seriousness of each other, they find some areas of common agreement (say on the need to provide resources for those women who choose to carry their pregnancies to term), but at the end of the day they cannot reach a consensus. In that case, a vote, decided by majority rule, is the only just option. To allow the lone dissenter to block action is to deny the overwhelming majority ultimate authority to decide their own fates. There is nothing magical about 50 percent plus one, but it does deserve more moral weight than 50 percent minus one.

 

5.7.2 Another problem with insisting on consensus is that it overly privileges the status quo. The status quo is already inevitably privileged by any policy-making procedure because if nothing is done the status quo prevails. No additional privileging of the status quo is warranted: it should not be so much more difficult to erect a traffic light at such and such an intersection than not to do so.

 

5.7.3 Moreover, sometimes a decision has to be made within a fixed time frame. A hurricane is expected and two proposals are put forward to prepare for the storm. Opinions are strong and divided. One proposal has the support of two thirds of the group, the other has the support of one third. When the first proposal is put forward, it is rejected for failing to achieve a consensus. But the second is rejected on the same grounds. Unless one of the proposals is approved, there will be disaster. Now, of course, it will be argued that under the consensus decision-making rule, reasonable people who held the one-third view would defer to the two-thirds. This is true. Often the result of the consensus rule is exactly the same as the majority rule, in which case either rule is equally good. But what if the one-third group called on the two-thirds group to defer? How does it get decided which group ought to defer? If you think it seems obvious that the one-third group ought to do so, then you are essentially endorsing majority rule. If you say, no, the group that has the wrong position ought to defer -- how do we decide which group that is? The culture of consensus decision-making that says that everyone's opinion ought to be respected, that ways of accommodating everyone ought to be sought, that decisions shouldn't be railroaded through -- all these are important and ought to be part of council decision-making. But when, after all these things are done, no consensus is achievable, then some other decision-making rule is needed, and majority rule makes the most sense.

 

5.7.4 Why not use some sort of super-majority rule instead, such as requiring 90% of the votes for something to pass (or three quarters or two thirds)? This way, the single ornery person can't block a socially necessary decision. But the same objection as applies to unanimity applies to super-majorities. Why should, say, 12 percent of a group be able to override the deeply held views of 88 percent?

 

5.7.5 Sometimes, of course, it is silly to go forward with a new initiative unless substantially more than half the people concur. (For example, should some community project be built that only makes sense if it will be used by most everyone?) So here one hopes that a reasonable majority will not insist on pushing its view forward when there is a lot of dissension. Consensus ought to be the norm.

 

5.7.6 Note that majority rule runs into problems if the majority acts foolishly; consensus runs into problems if the minority acts foolishly. One would hope to avoid both, though presumably the majority will act foolishly less often than a minority.

 

5.7.7 Full consensus decision making may work when the participants have a broad area of basic agreement (and where those who don't agree tend to withdraw). But in a full-scale society, where issues of the sort listed above (3.3) are likely to come up, total agreement on fundamentals cannot be assumed. Indeed, imagine that there is a single person who rejects ParEcon (but, out of orneriness or some other reason chooses not to emigrate). Should this person be allowed to block every action that everyone else wants to take?

 

5.7.8 This said, in fact the dynamics of small groups strongly incline towards consensus. People who find themselves in the minority on some issue are likely to be willing to go along with the majority because they know they'll be in the majority on some other issue. In large, anonymous groups this sense of reciprocity is unlikely to be as strong, but where there is face-to-face contact, social pressure will tend to encourage people to avoid votes and to go along with the sense of the meeting. But on some occasions this will not be the case, and then it makes sense – after appropriate deliberation – to have a vote. The vote is of benefit not just to the majority, which gets its policy preference, but to the minority as well, which can officially register its dissenting view.

 

5.8 When any voting does take place, it should be open, not by secret ballot. The secret ballot has come to be seen as a basic requirement of democratic politics, and it may indeed be necessary in societies where vote buying is rife. (I'm not likely to pay you to vote for me if there's no way I can be sure that you'll actually carry out your part of the bargain.) But as John Stuart Mill noted, the secret ballot has the unfortunate affect of telling voters that the reasons for their voting one way or another should not be public reasons, reasons that could be justified in public, but reasons of self-interest. Citizens should be publicly answerable for their votes, not in the sense that there will be punishments for inappropriate votes, but that they can be asked by others why they voted the way they did. This will encourage people to vote in a discursively defensible manner. Vote buying would, of course, be illegal, but this danger is not likely to be very serious in a society without significant income inequalities.

 

5.9 One problem with face-to-face meetings is that sometimes consensus reflects not the meeting of minds and the balancing of interests, but bullying by a few domineering individuals. There are various practices that can minimize this problem (rotating chairs, giving each participant a fixed number of chips that have to spent each time the person speaks, etc. [Mansbridge, Beyond Adversarial Democracy, p. 241]). And because councils are small, but not tiny, it would be rather unlikely that there will be no one willing to speak up to a bully. The ultimate check on bullying behavior, however, is that members of primary-level councils could ask to leave a council that they find uncomfortable, in order to join another one they find more compatible. But we don't want members leaving councils simply because there are disagreements. The idea is NOT to make every primary council politically homogeneous, for if so then not much deliberation would take place within them. Deliberation requires the respectful and reasoned engagement of contrary views. So anyone wishing to leave his or her primary council would need to ask the permission of the second-level council (the level above the primary council), which would try to determine whether the personality clashes were counter-productive or a healthy difference of opinion. (See paragraphs 6.12-6.15 below for more on secession.)

 

5.10 All meetings of councils above the primary level should be open, broadcast, videotaped, and archived for review by members of lower-level councils.

 

5.11 At councils above the primary level, there could be three kinds of decisions: (1) consensus decisions (most often), (2) majority vote decisions, and (3) decisions returned to the primary level for votes by everyone.

 

5.11.1 A petition signed by a given number of people can always assure that a vote is returned to the primary level councils. Additionally, a higher level council can always decide to send an issue to the primary level for decision. This will make sense whenever the issue is contentious and at all close.

 

5.11.2 The reason not to have all decisions made at higher councils is that doing so may not accurately reflect popular sentiment. Say in 20 primary councils the vote was 18-12 in favor and in 10 primary councils the vote was 30-0 against. Then the delegates in the local council might vote 20-10 in favor, but in fact the actual sentiment is 540-360 against. Nor will weighting delegates' votes work (you get 30 votes if your sending council voted 30-0, 18 votes if they voted 18-12, etc.), because the higher-level councils are deliberative too, and they might refine the original proposals. So going back to the primary level councils is necessary, to be sure that people approve the new version of the proposal, as it has emerged from further deliberation.

 

5.11.3 The reason not to have all issues sent back to the primary level for decision is that it's a waste of time. Most people are happy to let minor, non-controversial issues be decided by their representatives – as long as they have the ability to have their say when they want to.

 

5.11.4 Often the issues taken up by councils above the primary level will be those that come up from lower-level councils. Sometimes, however, consideration of an issue may begin above the primary level. But if the issue is close or contentious (as determined by either the higher-level council delegates or a petition from below) it still must go back to the primary level for approval.

 

5.12 Delegates to the second-level councils and above should be volunteers (that is, they should be people who enjoy such activity). Their participation will be part of their balanced job complex.

 

5.12.1 Rotation is mandatory (but only among those council members who have interest in such activity, and who have the confidence of the sending council that they will be able to reflect its views).

 

5.12.2 Members of higher-level councils should frequently return to their sending councils. In standard representative democracies, when a representative returns to her home district, it means visiting several hundred thousand constituents, which is obviously impossible. But in ParPolity it means returning to the group of 20-50 people who made up the delegate's sending council and of which the delegate was a part. Thus, the connection between council and delegate is much closer and organic than between constituents and representatives. It's more truly a two-way relationship, with delegates reporting to their sending councils the deliberative discussion from the higher council and the sending councils giving their new input to their delegate, taking into account the higher council's deliberation.

 

5.13 All councils at the second level and above should have a staff assigned. The staff is made up of people with balanced job complexes who research issues of public policy. The staff prepare research reports in response to requests from a council. All these reports are posted on the internet. In addition, "social impact statements" will have to be prepared for each piece of legislation coming to a formal vote. In hiring people to work on these council staffs, a premium should be placed on political diversity (as will be true for the economic facilitation boards as well). Staff reports should strive for objectivity – that is, be factual presentations acceptable to all sides in a debate, leaving underlying political differences for the political bodies to resolve.

 

5.14 Even though all important and contentious issues are voted on by the whole population, this is not referendum democracy.

 

5.14.1 First, the hallmark of referendum democracy is that people unreflectively vote up or down on a polarizing proposal. Turnout tends to be low. But in ParPolity, at each level the councils strive for consensus. And when consensus is unattainable and a vote is needed, it is far from unreflective. Instead, people discuss and debate the issues in their primary-level councils. (If one's primary council is unanimous on some significant and contentious issue (not that they reached a consensus, but that there was never any difference of opinion), then a request is put out on the internet for a nearby council with a divergent view; a joint meeting then allows the participants to face a contrary view and if necessary refine their own views.)

 

5.14.2 Second, unlike in typical referenda in capitalist democracies, the vote is not likely to be won by a minority of eligible voters. (Everyone's workday factors in adequate time for primary-level council meetings.)

 

5.14.3 And third, with public voting, the likelihood of voting on the basis of prejudice is reduced (given that the prevailing norms in the society will be supportive of difference and diversity).

 

Checks on the majority.

 

6.0 Referendum democracy or not, rule by the majority always raises the danger of “the tyranny of the majority.” How can this danger be averted? Again, it might seem that requiring consensus would prevent the tyranny of the majority; it would, but at the expense of permitting the tyranny of the minority, an even more serious problem

 

6.1 I propose that there be a High Council Court, consisting of 41 citizens chosen by lot for staggered, 2-year terms, established to act as a check on unjust laws. (The number 41 is of course arbitrary. It ought to be large enough so that by the laws of probability it will be broadly representative of the population, but small enough so that real deliberation can take place.) Lesser Council Courts would be established corresponding to each of the council levels above the primary level.

 

6.2 Constitutions often set limits on the majority (such as "Congress shall pass no law interfering with the people's right of free speech…."), but this is no sure protection: first, because constitutions can be amended by a large enough majority and second because someone still has to decide whether in fact the constitution's strictures have been violated. In some capitalist democracies – but not all – there is the institution of judicial review whereby the courts, in particular a Supreme Court, are authorized to declare laws of the legislature or executive actions unconstitutional. This poses a dilemma for democratic theory. On the one hand, if judges on these courts are elected by the people, then the judges are likely to be as subject to the majority passions that are threatening minority rights as is the legislature. So no great protection of minority rights is likely to emerge. On the other hand, if judges are in some way insulated from popular control – such as appointments for life, as in the United States – then we have given up on democracy, depending on a group of unaccountable judges to restrain the people.

 

6.3 Is an unelected Court necessary for democracy? We might note

 

6.3.1 First, that among capitalist democracies, those without such Courts or with no provision for judicial review are not noticeably more abusive of their minorities than are those with them.

 

6.3.2 Second, even in the United States, the view that an unelected Court should have ultimate power has not always been undisputed. While a strong anti-democratic sentiment has existed since the founding of the country, it is also true that for some two hundred years there was a strong presumption that, in James Madison's words, "the people themselves" were the best defenders of the people's liberties, not unelected judges. (See Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review, Oxford, 2004.)

 

6.3.3 Third, in the United States, the Supreme Court's role as the champion of the rights of unpopular minorities is often exaggerated.

 

6.3.3.1 The Court has rarely protected minorities from national laws, but from state and local laws. The Supreme Court, for example, did not have to act in 1954 in Brown v. Board of Education to overrule the tyranny of a national majority, but to make up for a federal government structured in such as a way as to thwart majority sentiment on the national level (with the unequal representation in the Senate, the seniority system, the filibuster).

 

6.3.3.2 For most years of its existence, the Court has been more intent on protecting power and privilege rather than the powerless and the underprivileged.

 

6.3.3.3 While there have been some cases of the Court striking down federal legislation violating basic rights – on flag burning, for example – there have also been cases where the Court has prevented the legislature from protecting minority rights (as when it struck down the Religious Freedom Restoration Act of 1996).

 

6.3.3.4 The federal courts have less representation of the current minority party (leaving aside the question of how different the parties are) than would an elected body. For example, as of 2002 on the 4th Circuit Court of Appeals Republicans held 2/3 of the filled seats, yet in the previous Congress they held only 54% of the Congressional seats in the states covered by the Court's jurisdiction and received only 51.5% of the popular vote for President. (And the Republicans are planning to fill the three vacancies, giving them 73% of the seats.) On the 7th Circuit Court, Republicans held an 8-3 edge (73%), even though they held only 56% of the corresponding House seats and received only 49% of the popular vote for president. And on the 5th Circuit, which includes George W. Bush's home state of Texas, they held a 10-4 advantage in seats (71%, potentially going up to 76% when 3 vacancies are filled), despite holding 49% of the House seats and having received 59% of the popular vote for President. (Court data from NYT, Dec. 1, 2002, p. IV:3, and corrections 12/8 and 12/15/02.) Obviously, the party of the appointer is no guarantee of a judge's views (Earl Warren being the most dramatic example), but probabilistically speaking there seems no good reason for putting our faith in a U.S.-style judiciary to protect minority rights.

 

6.4 Is this High Council Court just another body through which the majority can carry out its tyranny? James S. Fishkin has shown that a random cross section of the population, if brought together for deliberation, come to more thoughtful policy positions than were indicated by public opinion polls, which gather people's off-the-cuff views (The Voice of the People, Yale UP, 1995). This is no guarantee that the majority still won't abuse its power, but, as political scientist Robert Dahl has written, "To the extent that a people is deprived if the opportunity to act autonomously and is governed by guardians, it is less likely to develop a sense of responsibility for its collective actions." (Democracy and Its Critics, p. 192) By having the check on the majority be another democratic body, the people are still in ultimate control.

 

6.5 What happens if the randomly-selected High Council Court has a disproportionate number of anti-social individuals? Mathematically unlikely, but not impossible, this wouldn't be catastrophic because Court members have only two year terms, far shorter than on any current country's Supreme Court, let alone than the U.S.'s life terms.

 

6.6 Each Court will have an assigned staff, and advocates for different points of view will present their positions before the Court. But the decisions that the Courts will have to make are basic political/moral decisions, where no special expertise is needed, beyond careful deliberation.

 

6.7 One further check on the tyranny of the majority is the right of secession, a right which would be recognized constitutionally.

 

6.8 Secession is not a desirable outcome, for it means that people have given up trying to cooperatively resolve their differences. But like divorce, which is unfortunate but often the best among bad options, secession is a basic human right.

 

6.9 There are some exceptions to the right of secession (just as there are exceptions to all rights when they come into conflict with other fundamental rights.)

 

6.9.1 First, a secession should not be permitted when it involves taking a disproportionate share of the common resources. In a marriage in some jurisdictions, the property of the two individuals becomes common, or community, property, which then must be divided evenly upon divorce. Likewise, if a region has vast oil resources and the rest of the country does not, that region cannot take all the oil when it secedes; the resource must be equitably shared.

 

6.9.2 Second, a seceding region must assure that it is not going to use secession as a means of oppressing some minority within its borders (as the American South did during the U.S. Civil War). Any region that wished to secede would be permitted to do so, so long as resources were fairly divided and there were an assurance of it establishing a polity that recognized basic democratic rights. It would not have to retain ParEcon or ParPolity – people should be allowed to change or reject a social system if they so choose – but basic rights would have to be protected.

 

6.10 Cass Sunstein (Designing Democracy: What Constitutions Do, Oxford, 2001) argues that a right of secession is contrary to the basic concept of deliberation and should be rejected. Allowing such a right, he argues, would allow powerful subunits – those with more economic resources, for example – to blackmail others: give us our way on such and such, or we leave. But such threats wouldn't be very effective unless in fact the subunit could take a