Not That Kind of Voting

What New Zealand’s Electoral Commission’s attempt to boost turnout gets wrong about voting, and what we can learn from it

There will be a general election in New Zealand this Saturday. As is customary in such circumstances, there is some hand-wringing going on about what turnout is going to be like ― it was almost 78% in 2014, which in Canada, never mind the United States, would be considered sky-high, but regarded as worryingly low in New Zealand. And the Electoral Commission is doing its part in trying to encourage people to vote, among other things by publishing this sleek video that recently showed up in my Facebook feed (and by using other ads based on the same theme):

The trouble, as I see it ― though I will not claim to speak for Kiwi abstainers ― is that, if you think about it for a second, this video’s true message about voting is precisely the opposite of the one it is intended to convey.

We “vote every day”, we are told: for snoozing or getting up; for dirty or clean underwear (that one, I suppose, is of particular relevance to politics); for whether to be a nice person or a not-so-nice one; and for a whole lot of other things. And it follows, apparently, that we should also vote in the election (or those entitled to do so should, anyway ― I am not, since I’m not yet a permanent resident). In other words, according to Elections New Zealand, voting for a party and a candidate to represent you in Parliament is just like making one of those everyday decisions that you are used to making, well, every day. Except, of course, that it isn’t, and in a number of ways.

Perhaps most obviously, if done with a modicum of seriousness, voting in a election is a good deal harder than deciding whether to hit the snooze button or to get up already. (I’ll call that sort of decision-making “voting”, as opposed to voting.) Voting requires one to acquire substantial amounts of information about the candidates and their platforms, about the world and the ways in which the candidates’ proposals fit or do not fit with what we know about it, and ideally also about how the electoral process itself works. (Another video from the Electoral Commission cheerfully showcases the voters’ utter ignorance about the latter point, as if equanimity were the appropriate response to it.) Relatively few people are well informed voters, and even some, perhaps quite a few, of those who are not at least realize that they have work to do in order to become at least somewhat knowledgeable ― though many will never do that work, for reasons to which I’ll presently return. And quite apart from informational difficulties, voting requires one to ponder incommensurable values (do vote, say, for the candidate with the better tax policy or the one more likely to respect the constitution?). By contrast, one doesn’t need to work very hard to “vote”. “Voters” typically have all the information they need from personal experience, and the values at stake are also less abstract and easier to sort out.

The second crucial difference between voting and “voting” is that the “voters” are the ones who live with the consequences of their decisions, whereas voters are not. If you keep on dirty underwear, you are the one who stinks. If you haven’t had occasion to learn that in the past, there’s a reasonable chance that you will learn now. By contrast, if you vote to keep a lousy politician in office, most (and perhaps  all) of the cost of that vote (however small a fraction of the total cost is attributable to an individual vote) is absorbed by others. You may even profit from your bad decision, either because the politician rewards his or her supporters at the expense of  the community as a whole, or simply because voting in that way gave you a satisfaction that is greater than the costs that vote imposes on you ―  though again the costs to the community as a whole are substantial. Moreover, it is often difficult to trace bad outcomes to bad votes, or good outcomes to good ones. The difficulty is sometimes subjective ― a voter who doesn’t understand a modicum of economics will not be able to tell that relative impoverishment resulted from the protectionist policies he or she supported. But it is often objective. Policy is complex, and it is difficult even for knowledgeable people to link causes with effects with much certainty. As a result, voters do not learn from the consequences of their decisions in the way “voters” do.

In short, voting and “voting” are rather different activities, and just because we do a lot of the latter, and do it reasonably well, it doesn’t follow that we should do the former, or that we can do it with any competence. We “vote” well enough because each “vote” is (usually) a relatively straightforward decision and, even when it is not, we have strong incentives to learn enough, and to be objective enough, to decide well, because we are the one living with the consequences of the decision. These reasons don’t apply to voting, which involves complex decisions and trade-offs, which are difficult enough to manage even for unbiased and well-informed decision-makers ― but we lack the incentives to be either of these two things because we do not in a meaningful way bear the consequences of our votes.

Of course, I have no idea whether the Electoral Commission will be successful at persuading people to go to the polls despite the faulty premises underlying its ad campaign. But if it does, this will, I am afraid, be an additional reason to distrust voters, who let themselves be fooled by what is really an well put-together effort at misdirection. Rather, the message we should take from the ad is the one that Ilya Somin delivers in his book Democracy and Political Ignorance: Why Smaller Government Is Smarter: the more decisions we can make by “voting” rather than voting, the better off we will be. Whoever wins this week’s election should really think about that, rather than fret about turnout rates. Don’t worry though: I won’t be holding my breath.

Don’t Know What You’re up to

Thoughts on Ilya Somin’s take on the consequences of political ignorance for judicial review

I have recently finished reading Ilya Somin’s Democracy and Political Ignorance: Why Smaller Government Is Smarter (2nd ed). Although I was familiar with the gist of Prof. Somin’s argument from his numerous blog posts on the subject of political ignorance as well talks, such as this one, one of which I had the good fortune of attending at NYU, I found it a rewarding read. Even if you know where the argument is going, it is still well worth your while. That said, since prof. Somin has so frequently summarized his case himself, there is no need for me to do so here. Rather, I will volunteer some observations on an issue which he addresses in the book, but not, for the most part, in his blog posts: the impact of his findings on political ignorance on the issue of judicial review of legislation.

In a nutshell, prof. Somin’s general argument is that, as extensive survey evidence shows, most people are profoundly ignorant about both the organization and the activities of government. They are also unaware of crucial facts relevant to assessing these activities. Meanwhile, most of those who are not as ignorant as the rest are still incapable of correctly assessing the government’s performance because they are “fans” who are more interested in the success of their political “team” than in the search for truth. The reason this problem persists is that the costs of acquiring information and processing it in good faith are too high  compared to the benefits one might get from doing so, given that it does not matter whether one’s vote is well-informed or not: it still counts for virtually nothing. In a word, ignorance is rational. By contrast, people are remarkably able and willing to acquire information when they are considering a decision that would assuredly have an impact on them, such as where to live or what to buy. The most effective solution to the misgovernment caused by the pervasive and persistent ignorance of voters is, therefore, to devolve decision-making powers from large, centralized governments to more local ones among which people are more easily able to choose by “voting with their feet” and from all governments to the market.

This argument, which, to be clear, I find very compelling (though I should perhaps note that ― like prof. Somin, I take it ― I would support the prescriptions of smaller and more decentralized government even quite apart from the existence of political ignorance) has a couple of important consequences for debates about judicial review of legislation. For one thing, it strengthens the case for judicial review.  Enforcing limits on the power of government, as judicial review does, and perhaps especially enforcing limits set up by federal constitutions, insofar as they circumscribe the powers of centralized governments, helps preserve foot-voting and market-choice opportunities. It can also help limit the number of issues to which the government attends and thus the amount of information that voters need to acquire and process in order to keep tabs on it. For another, persistent and pervasive political ignorance undermines the case against judicial review. This case rests on the courts’ lack of democratic legitimacy vis-à-vis the legislatures whose work they check. But if voters are largely ignorant about what it is that the legislatures are up to anyway ― and prof. Somin observers that “[f]or most legislation, the vast majority of voters will not have heard of its existence, much less have an informed opinion on its merits” (184) ― then legislation’s claim to democratic legitimacy is weak if not non-existent, except in unusual circumstances.

This too is largely compelling. Even the Waldronian argument about the legitimacy of legislatures arising out of the (roughly) equal say that elections (if run fairly) give to voters in public affairs loses much of its bite if we think, as prof. Somin shows we ought to, that the voters largely do not know enough to choose their representatives reasonably well. The equality argument remains, of course, but it is a hollow one. Still, I think that prof. Somin’s arguments raise a number of questions that his book does not answer ― which is not to say that they are unanswerable.

One such question is what can be done to ensure that judicial review actually works to counteract, rather than worsen, the problem of political ignorance. Judicial review can, after all, serve to expand rather than limit the powers that the government is called upon to exercise, or to obscure the exercise of existing powers instead of making it more transparent. It will do so if courts are merrily enforcing “social and economic rights”, requiring governments to create or expand social programmes instead of leaving issues to be dealt with in the markets. It will also do so if courts blur the lines between federal and state or provincial authority, making it more difficult for citizens to know what government is responsible for what law or social programme, or give private unaccountable actors, such as civil servants’ unions, power to influence public affairs.

The Supreme Court of Canada has already done some of these things, and its parasiti ― who are, in reality, just one species of the rent-seeking genus that afflicts all specialized expert agencies, as prof. Somin notes in his discussion of delegation of power to experts ― are urging it do more. Should these suggestions be taken up, the problems of ignorance resulting from the vast scope of and difficulty of monitoring government will likely become that much worse. (This does not conclusively prove, of course, that none of these things ought to be done; perhaps there are reasons why increased ignorance is a price worth paying. The point is simply that the ignorance-related costs must be taken into account.) The answer, presumably, is some combination of “write a constitutional text that does not lend itself to ignorance-promoting interpretations” and “appoint judges who will not engage in such interpretations when not required to do so by the text”, but I wonder whether prof. Somin might suggest something more specific.

More specific solutions would be particularly important because relying on judicial appointments is really not much of a solution at all. Prof. Somin notes, elsewhere in the book, that the American public pays little attention to presidents’ performance in choosing judges, even though this is one area where (unlike in many others, such as economic policy, on which presidents are often judged) a president wields decisive influence. The problem is, if anything, much worse in Canada. Appointments to the Supreme Court attract attention only insofar as they conform to or depart from conventions about representation, whether established (i.e. regional/provincial representation) or emerging (demographic representation) and expectations about bilingualism. Other judicial appointments pass entirely unnoticed. The voters are not going to put any sort of pressure on Canadian governments to appoint judges who could enforce constitutional limits on the power of government, or otherwise contribute to counteracting the ill effects of political ignorance.

This makes me wonder whether much of anything can be done about this problem. Prof. Somin addresses some of the proposals that have been made to increase the voters’ levels of political knowledge generally, and concludes that none are likely to succeed to any substantial degree. He does not, however, consider the feasability of improving voter knowledge about specific issues, rather than as a general matter. Can something be done to make the electorate more aware of the importance of the judiciary and of the elected officials’ role in shaping it? The Federalist Society might have been somewhat successful at this in the United States, though I am not sure if even its determined efforts over the last several decades have changed popular opinion, as opposed to that of a certain section of relatively well-informed (and intensely partisan!) elites.

Last but not least, as prof. Somin also notes in his discussion of experts, ignorance is not only a problem for hoi polloi. “Expert regulators face serious knowledge problems themselves”, (215) he points out. Prof. Somin has in mind the experts’ lack of knowledge of people’s preferences and local circumstances, but another type of knowledge problem from which many experts, and perhaps especially the courts, suffer is the narrow scope of their expertise. Judges are (one hopes) experts in legal analysis, but they are as ignorant as the next person when it comes to all manner of facts and scientific theories that are relevant to policy-making ― including that which occurs in the course of policy-making. When adjudicating a trade union’s claim that its alleged right to extract above-market wages for its members is an instance of the freedom of association, it would help judges to have a basic understanding of labour economics. But they do not. When adjudicating claims about the police’s power of search incident to arrest, it might help judges not to think that crime rates are going up when they are in fact going to do. But they do. In many ways, judges are every bit as ignorant as the rest of us. So are lawyers, who thus cannot enlighten the judges before whom they litigate. Here again, I wonder if prof. Somin has any suggestions about relieving ignorance.

Prof. Somin’s discussion of expert decision-makers concludes that, while delegating decision-making powers to them may help counter some of the effects of the voters’ ignorance, it is no panacea. Although this discussion only mentions courts in passing, the conclusion, I am afraid, is applicable to them. Prof. Somin has put his finger on a very significant problem and it might be, if anything, even more intractable than his (already rather gloomy) account suggests. Still, if we are to do anything about, we must start by understanding what the problem is, and for helping us do so, we owe prof. Somin greatly.

Where Is the Grass Greener?

In a recent article in Constitutional Forum, Peter Russell argues that Canada needs to imitate New Zealand by creating a Cabinet Manual that would, notably, contain an authoritative although not legally binding statement of the principal constitutional conventions, especially those that regulate the formation of governments. While this would, in prof. Russell’s view, have a number of benefits ― “[a] Cabinet Manual”, he writes, “can be a quietly evolving instrument for reforming the ‘unwritten’ part of our constitution” and increase political accountability ―  “the biggest benefit a Cabinet Manual would yield for our society is to increase the knowledge of citizens about how
they are governed” (98).

Meanwhile, in New Zealand itself, a former Prime Minister and inveterate constitutional reformer, Sir Geoffrey Palmer, is campaigning, together with one of the country’s leading lawyers, Andrew Butler, for the enactment of a codified constitution that would eliminate conventions altogether. A major reason they cite for their effort is New Zealanders’ ignorance of their constitution ― which the Cabinet Manual lauded by prof. Russell has apparently done nothing at all to dispel. (Note, however, that their proposed constitution would require the publication of updated versions of the ― presumably slimmed down ― Cabinet Manual every six years (s 25).) A codified constitution, by contrast, will do wonders to rectify this sorry state of affairs

Prof. Russell does not really explain how the existence of a Cabinet Manual will bring about the “increase [in] the knowledge of citizens about how they are governed” that he anticipates. He provides no evidence of its having done so in New Zealand, although he does confidently assert that “[m]aking the Cabinet Manual available on the internet was a giant step in increasing the constitutional literacy of New Zealanders” ― mostly, it seems, thanks to the wonders of hypertext. If Sir Geoffrey and Dr. Butler (as well as many of my colleagues here in New Zealand) are to be believed, prof. Russell is simply wrong.

For their part, Sir Geoffrey and Dr. Butler do not really explain how the codification of constitutional rules will change anything to the citizens’ ignorance of and lack of interest in these rules. They hope that a codified constitution that dispenses with conventions “will educate people and public decision-makers on their rights and responsibilities … and provide a better framework for learning about civics” (25). But they provide neither evidence that this can happen, nor examples that it has. Canada and Australia, with their partly codified and partly conventional constitutions, would seem to offer perfect natural experiments that can test their assertions: if Canadians and Australians are more knowledgeable or better educated about federalism, which is codified in their respective constitutions, than they are about responsible government, which is not, then Sir Geoffrey and Dr. Butler are right. Otherwise ― and although I have no empirical evidence, it seems to me that it is indeed otherwise in Canada ― they too are simply wrong.

In fact, the idea that an authoritative text ― whether legally binding or merely informative ― telling people “how they are governed” is going to achieve much of anything to educate citizens on this admittedly crucial issue is naïve. Consider the situation in the United States, with its revered Constitution (and, let us note, a very short constitution in contrast to the 40-page one that Sir Geoffrey and Dr. Butler are proposing, never mind the length of a Cabinet Manual). As Ilya Somin reminds us, “[p]ublic ignorance” there

also extends to the basic structure of government. A 2006 poll found that only 42 percent can even name the three branches of the federal government: the executive, the legislative, and the judicial. There is also much ignorance and confusion about the crucial question of which government officials are responsible for which programs and issues. (164-65)

Neither prof. Russell nor Sir Geoffrey and Dr. Butler explain how their proposals will ensure that their respective countries will avoid the fate of the United States. Prof. Somin, by contrast, does have an explanation for the phenomenon that he observes, which is that

[f]or most people, political ignorance is actually rational behavior. If your only incentive to follow politics is to be a better voter, that turns out not to be much of an incentive at all, because there is so little chance that your vote will actually make a difference to the outcome of an election. … For most people, it is rational to devote little time to learning about politics, and instead to focus on other activities that are more interesting or more useful. (166)

No Cabinet Manual, and codified constitution, can change that. But unless they recognize this fact, well-meaning reformers are bound to think, with no particular justification, that whatever system they have must be responsible for the public’s ignorance of the constitutional basics, and that whatever system some other country has must be the solution to the problems they see in theirs. So Canadians will propose imitating New Zealand, while New Zealanders will want to imitate, and indeed go further than, Canada. Yet while the grass may always be greener on the other side of the Pacific Ocean, the putrid flowers of political ignorance bloom on both.

Yes Or No?

Post-Brexit thoughts on referenda, especially in the context of electoral reform

In the aftermath of the Brexit referendum, there is renewed debate about the lessons, if any, that it might hold for other democratic polities on the use of the referendum generally, and in particular for Canada about an eventual referendum on electoral reform. Many of those opposed to such a referendum have seized on the political ignorance and the acrimony on display in the United Kingdom to bolster their arguments. The problems they point to are real, but the case against a referendum on electoral reform is still not compelling.

First of all, it is important to note that the question of whether a referendum is the right way to settle a political controversy does not arise in a vacuum. If the issue has impressed itself with sufficient urgency on the public debate ― and in the Brexit case, this may be an open question ― it has to be resolved somehow. If not by referendum, then by a parliamentary vote. (Sometimes, adjudication or a reference to a court are also available, but not that often, so let’s discount that possibility here.) To say that a referendum is not the way to resolve the issue, it is not enough to point to that procedure’s flaws. It is also necessary to show that they are worse than those of the alternative. Moreover, it is not enough to point to one referendum that turned out badly (whatever “badly means), or to one successful parliamentary debate, to settle the question. Examples are useful, but to be persuasive, they have to be related to some underlying features that the procedures in question will usually, if not always, have.

Now, that political ignorance affected the Brexit vote, and would affect any other referendum, is not exactly a surprise. Ilya Somin discussed the data on political ignorance’s effects on the Brexit referendum in a detailed post at the Volokh Conspiracy, but those looking for a tl;dr can refer to this tweet from Google Trends showing that, after it was announced that the UK voted to leave the European Union, its residents started looking for answers to questions such as “what is the EU?” and what leaving it entails. Presumably, more than a few of these suddenly-curious people had cast their ballots without having any idea of what they were doing. There was also anecdotal evidence of “leave” voters having second thoughts after their preferred option turned out to have won. And given how little informed voters generally are, there is no reason to think that this particular referendum was an outlier.

There was also plenty of evidence of bitter divisions in the British polity in the aftermath of the vote. That too may be a feature of many referendums, though it’s not clear to me that it has to be a feature of all. I may be missing relevant information, but I do not know that New Zealand’s series of referenda on electoral reform was particularly divisive, and it is not at all obvious to me that a referendum on this topic in Canada would cause “deep divisions within Canadian … societ[y], divisions which [would not be] easily healed,” as Democratic Institutions Minister Maryam Monsef has implied. Referenda about issues seen as well-nigh existential, such as Québec’s future within or outside Canada, are divisive because the issues themselves are. Those about relatively pedestrian matters, such as the electoral system, are unlikely to be.

A referendum is thus highly likely to be affected by voter ignorance, and may, depending on the issue, prove dangerously acrimonious. But what about the alternative? As prof. Somin points out in a post asking whether “the Brexit vote prove[s] democracies should not use referenda,”

Elected officials may, on average, know more about policy issues than voters. But they need to cater to an often ignorant electorate in order to get elected in the first place. For that reason, policymaking by elected officials is often influenced by public ignorance no less than referenda are.

He adds that

In [an] election, there are many different issues on the agenda, which makes it hard for rationally ignorant voters to follow more than a small fraction of them. By contrast, a referendum can focus the voters’ attention on a single discrete question, thereby reducing the information burden.

And for divisiveness, it seems to me that a close election between two (or perhaps more) stark alternatives can be as divisive as any referendum, if we control for the importance of the issue. (Few elections are seen as being as vitally important as some ― though not all ― referenda.) The 2000 election in the United States left bitterness and division enough to last for two presidential terms and even beyond; and even the 2011 election in Canada left in its wake plenty of people who were convinced that the end times of Canadian democracy were at hand. Nor do I see a reason to see that ― again allowing for the significance of an issue to the public opinion ― having it debated in Parliament will turn out to be less divisive. As Andrew Coyne notes in a National Post column,

[r]eferendums are not themselves inherently divisive; rather, they are usually called precisely when the public is most sharply divided — so divided that the issue cannot risk being decided by ordinary means. If you think Quebec was divided during the two referendums on separation, try to imagine the mayhem that would erupt were the Parti Québécois to try to rip the province out of the country by a simple vote of the legislature.

In an op-ed in the Globe and Mail, Mel Cappe and Janice Gross Stein cite “the debate on the right to assisted death in Canada [as] an example” of enlightened parliamentarism, concerned at once “with interests of the majority” and “the rights of minorities.” But they conveniently forget to mention the fact that this debate only happened because of, and took place within the bounds defined by, a decision of the Supreme Court. Moreover, assisted death is an issue on which there seems to be, a fairly broad, if vague, consensus (though there is probably less agreement on the details than on general principles). If the debate in question was a relatively dignified one, that likely had a good deal to do with this consensus, and not only with the form it took.

There is another characteristic of parliamentary decision-making worth mentioning here. Not always, but more often than not, parliamentary votes are whipped party-line votes. If the leaders of the parliamentary majority decide that they want their caucus to vote a certain way, they will almost invariably get their way. In such cases, meaningful deliberation before a vote is a parliamentary ideal, but not a parliamentary reality. Thus, on an issue decided by party-line votes, parliamentary decision-making amounts to treating the last election ― in which that issue may well have featured only peripherally if at all ― as a sort of referendum-by-proxy on that issue.

So I don’t think that, as a general matter, referenda can be ruled out as a democratic decision-making procedure, as profs. Cappe and Stein suggest. At the same time, there issues that lend themselves to resolution by referendum much better than others. I am skeptical of arguments to the effect there that “constitutional,” or “very important,” issues, or those decisions on which are irreversible, should never be decided by referendum, not least because these categories are  vague and therefore liable to be twisted an abused in public debate. I have argued here that even the contention that issues of rights should not be put to a vote in a referendum is a dubious one. However, Prof. Somin has identified a couple of other factors that are more useful to draw the line.

First, prof. Somin writes that

referenda are often likely to be particularly poor mechanisms for making decisions on issues that involve complex tradeoffs with other priorities. … Legislators are more likely to have the time and expertise needed to study the tradeoffs in at least some detail.

Put another way, a referendum is only appropriate when it should be reasonably clear to at least a modestly diligent voter what each option involves. In a post on his (excellent) Public Law for Everyone blog, Mark Elliott points out that in the Brexit case,

[a] slim majority of those who voted may have expressed a desire to “leave”, but what that means is such an open question as to render the referendum outcome largely meaningless. … [T]hose who voted ‘leave’ … could not have been expressing, and did not express, any clear view about what the UK’s future relationship with the EU should look like precisely because no vision of that relationship was on the table.

The same was arguably true in the 1995 referendum on Québec’s separation. When one ― or more ― of the options on offer in a referendum is too vague, whether because it involves complex tradeoffs or because no one has bothered clarifying it, a referendum is not going to be a good idea. (It is worth noting, by the way, that this problem can affect elections if they are treated as referenda by proxy. As Emmett Macfarlane has been pointing out on Twitter, those who insist that Canadians want electoral reform because a clear majority of them voted for parties that supported it fail to mention that these parties were not very clear on what version of reform they favoured, and did not agree among themselves.) But if all the options are reasonably clear ― as they could be in a referendum on electoral reform, provided that the alternative(s) to the current system were actually specified in advance ― that objection is irrelevant.

Second, prof. Somin points out that

[r]eferenda might also be useful when it comes to issues where there is a serious conflict between the interests of elected officials and those of the general public. Most obviously, the former often can’t be trusted to deal objectively with issues that directly affect their own grip on power: electoral districting, campaign finance, and so forth. In such cases, the superior knowledge of politicians often actually does more harm than good, since they can use it to advance their own interests and the expense of the people.

This warning is relevant to the issue of electoral reform in Canada. Indeed, this should be blindingly obvious, given that every single party in the House of Commons (with the possible exception of the Bloc québécois) is supporting that electoral system which it believes will maximize its political power. Even profs. Gross and Stein concede that parliamentarians will “not always” have the best interests of the majority in mind. When we can tell that they do not, the case for a referendum becomes much stronger.

In my post on whether minority rights can be put to a referendum vote, I wrote that I was happy to live in a representative, not a direct, democracy. Many public decisions do involve such tradeoffs and uncertainty that resolving them by referendum is likely to be a bad idea. But that is not always true. In particular, it is not true of electoral reform. And sometimes, we can tell that our elected representatives are trying to help themselves at our expense. Again, that is true of electoral reform. When both of these factors are present at the same time, a referendum sounds like a very good idea. Let’s vote.

Ideas of the Marketplace II

What we can learn from thinking about the marketplace of ideas as a market

In a very interesting post over at EconLog, Bryan Caplan considers what he describes as the “dogmatic libertarian” claim that all markets work well, as it is applies ― or, rather, doesn’t apply ― to the marketplace of ideas. The marketplace seems to reject this claim, which suggests that it cannot be true. Prof. Caplan agrees that it is not, and makes two further observations. In reverse order, they are that “[t]ruth doesn’t largely win out in a well-functioning market for ideas, because consumers primarily seek not truth, but comfort and entertainment” (emphasis prof. Caplan’s), and that while “[m]ost markets work well … the market for ideas doesn’t … [b]ecause ideas have massive externalities. … The market for ideas … works poorly because strangers bear almost all the cost of your irrationality.” I think that’s largely right, but want to add a couple of additional points regarding prof. Caplan’s second observation.

First, while it is often true that we do not internalize the costs of our irrationality, this is less true in some contexts than in others. Most obviously ― this a point that Ilya Somin makes in his discussions of political ignorance ― we do internalize a much greater share of the costs of our bad decisions, and also of the rewards of the good ones, when deciding for ourselves, in our private lives, than when we vote or, more generally, act in the political sphere. Even in our private lives, we pass on some of the costs of our irrationality to family, friends, and sometimes the broader society as well, but we do absorb a much more substantial fraction of these costs. This is perhaps a trite point, and prof. Caplan might only have been referring to the marketplace for political ideas (political in a very broad sense), but I think it’s worth spelling it out.

More interestingly, I think, it is also the case that, even in politics, there is a way in which people can be a made to internalize at least a small fraction of the costs of their bad decisions in the marketplace of ideas: democracy. This, I think, is what H.L. Mencken’s famous quip that “[d]emocracy is the theory that the common people know what they want, and deserve to get it good and hard” means. The theory is only partly true, because as prof. Caplan says, in the political sphere “strangers bear almost all the cost of your irrationality,” but self-government ensures that you bear at least a little fraction of the cost of your opinions and decisions. When you vote for a lousy politician, or convince others to do so, you increase ― albeit usually by very little ― your odds having to reap the consequences of the lousy policies that that politician will implement. By contrast, in a dictatorship, the few who decide typically bear even less of the cost of their views than the voters in a democracy, because they are even better able to pass these costs on to others, while those who do not (which is to say, almost everyone) are even freer to know nothing and believe everything, since their ignorance, credulity, and irrationality have no impact whatever on anything. If you think that voters and politicians are bad in democratic countries, just compare them to the people and the rulers in authoritarian ones. Once again, Churchill was quite right to say that while democracy is a bad system of government, others are even worse.

The second point I wanted to make might be too obvious for an economist like prof. Caplan to discuss, but bears repetition by a lawyer writing for non-economists. That the marketplace of ideas may be malfunctioning as a result of massive externalities does not justify intervention by the state in order to make people internalize these externalities or prevent them from occurring. Market failure may be real, but so is government failure ― and there are situations in which government failure is more severe than the market failure government intervention purports to correct. Indeed, this point is, I think, more widely accepted (albeit not necessarily in these terms) with respect to the marketplace of ideas than for just about any other market. Distrust of, and opposition to, censorship, in the face of widespread evidence of malfunctions in the marketplace of ideas reflects, at least in part, an understanding that giving the state the power to rectify these malfunctions would be disastrous, both because the state is a bad judge of ideas and because this power would be abused in various self-interested ways be the people entrusted with wielding it. Unfortunately, people often fail to transpose this understanding to their analysis of other markets. Yet there is no reason why they should. The marketplace of ideas is just not that special.

Thinking of the marketplace of ideas in economic terms ― assuming, in other words, that it is a marketplace more or less like any other ― is, I think a useful exercise. (I attempted it here already.) It both allows both to sharpen our understanding of the marketplace of ideas itself (and of the related markets, such as the one for votes), and can serve as a reminder of some broader truths about markets and regulations that we intuitively sense when thinking about the marketplace of ideas, but forget in other contexts.

The Mainville Hearing: Beyond Interpretation

The “soft” issues in the Mainville Reference: being a Québec jurist, and public confidence in the courts.

In my last post, I wrote about two of the issues that arise in the reference regarding the constitutionality of Justice Robert Mainville’s appointment to the Québec Court of Appeal: the interpretation of the Constitution Act, 1867 and specifically of its section 98, which provides that “[t]he Judges of the Courts of Quebec shall be selected from the Bar of that Province,” and the import of the Supreme Court’s decision in l’Affaire Nadon, Reference re Supreme Court Act ss 5 and 6, 2014 SCC 21, [2014] 1 S.C.R. 433. In this post I will consider two additional issues, which go beyond the interpretation of purely legal sources. One of them featured prominently in last Wednesday’s oral argument, while the other not at all. Yet both, I think, are important.

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The first of these issues, the one that was raised quite explicitly by the parties and the Court on Wednesday was that of identity. Indeed, for me this was the biggest surprise of the hearing ― the extent to which, as the day progressed, the argument became not only about the meaning of legal texts old and new, but about what what it means to be a Québecker and a Québec lawyer. Of course, this question cast a shadow over l’Affaire Nadon, where the majority opinion, in my view, “reflect[ed] ― and reinforce[d] ― a sadly narrow view of what it means to be a Quebecker and a Québec jurist.” And it was, I suppose, inevitable that, after appearing in that opinion, even if it was mostly between the lines, it would feature in this case. Still, it was remarkable how prominent it was, and how strong the emotions it aroused were.

The parties claiming that Justice Mainville’s appointment was unconstitutional argued that a lawyer could only remain steeped in Québec’s “social values” and be an effective representative of Québec’s legal tradition if he or she remained a member of the Québec bar or its bench. Québec’s lawyer, Francis Demers, emphasized the importance of the judges’ representative functions, warning of judges who have, in the past, been tempted to introduce common law concepts into Québec’s civil law. Questioned during his reply, he would not even grant that one of the Supreme Court’s Québec judges could be appointed to the Québec Court of Appeal if he or she so chose. Rocco Galati compared the potential appointment of a federal court judge to a Québec court to “a drop of cyanide” that would poison Québec’s legal tradition, and warned that if one such judge could be appointed, more could follow, since “there is no shortage of them.” Paul Slansky, for the Centre for Constitutional Rights, insisted that Québeckers cannot have confidence in a judge who served on one of the federal courts, in the same way as, in the first half of the 19th century, they could not have confidence in British judges appointed to serve in the courts of a province about which they knew nothing. Even though the judges of the federal courts also apply Québec’s law, he said, they do so in the name of Canada, not Québec, and people, “separatists” especially, could take it badly should one of them be appointed to the Court of Appeal.

The parties arguing that Justice Mainville’s appointment is constitutional, by contrast, advocated a much broader vision. The pool of potential judges must be enlarged, not restricted. Federal institutions apply Québec’s law and are themselves part of Québec’s legal system. Provided that one has been a member of the Québec Bar at some point, one does not cease being a Québecker by working there. Are the judges appointed to represent Québec on the federal courts, as Justice Mainville was, or indeed on the Supreme Court, no longer members of Québec’s legal community? If the Court were to so conclude, both the federal government and Sébastien Grammond, on behalf of the Canadian Association of Provincial Court Judges, warned, attempts to weed out those deemed insufficiently good Québeckers would not end with the exclusion of federal court judges.

For its part, the Court was very skeptical of the idea that a Québecker ceased being enough of a Québec lawyer after a passage, however brief, at the Federal Court. One of the first questions to Mr. Demers was whether Justice Mainville’s 33 years of practice at the bar were “wiped out” (lessivé). Mr. Slansky’s comparison of Justice Mainville’s appointment to that of British judges was “a bit apocalyptic,” one of the judges suggested; indeed, it was difficult to think that Québeckers would be offended by it. The Court seemed to accept the federal government’s contention that s. 98 was intended to prevent the appointment of lawyers from other provinces, but did not exclude those Québec lawyers who had subsequently worked outside of the province. The experience of a Québec lawyer, once acquired, could not be erased, it suggested.

As for myself, I am of course on the side of those defending the constitutionality of Justice Mainville’s appointment. The implication of l’Affaire Nadon that the judges of the federal courts are somehow out of touch with Québec, when they live across the river from it and constantly hear cases there is unfortunate, and it should not be extended beyond any more than it must. Prof. Grammond was right to speak of a crispation identitaire on the part of those claiming that jurists exposed to the purportedly nefarious influence of federal law without the allegedly magical shield provided by continued membership in the Québec Bar will lose touch with Québec. Such a crispation is only par for the course, I suppose, for a government committed, whatever political party controls it, to using nationalist ideology to maximize its own powers. But I must say there was something unseemly about a pair of Toronto lawyers making the same sort of arguments ― in English! ― and effectively telling Québeckers how best to protect their culture and legal tradition. They are, I am sure, well-intentioned gentlemen, but despite their good intentions, the effect of their position is to confine Québeckers to their own province, and prevent them from making Canada as a whole their country ― in exact accordance with the wishes of the separatists for whose feelings Mr. Slansky expressed such concern.

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This brings me to the final theme I want to discuss ― this notion of public “confidence” in the courts, which is supposedly at risk of being undermined by the appointment of judges said to be out of tune with Québec’s “social values.” Regrettably, nobody challenged it at the hearing. Let me do so here.

The claim that public confidence in Québec’s judiciary depends on none of its members having served on the federal courts prior to his or her appointment is simply bogus. The public is abysmally ignorant even of basic facts about society and electoral politics ― everywhere, not just in Québec. The level of public ignorance about the legal system is no less appalling. Don’t take my word for it ― take the Court of Appeal’s. In a judgment delivered the same day the Mainville reference was heard, R. c. Turcotte, 2014 QCCA 2190, the Court had the following to say about a a collection of press articles concerning the case, one of the most heavily mediatized in Québec in recent years, which according to the Crown “expressed the opinion of an informed public” [67]:

We find there a variety of opinions, more or less nuanced, more or less objective, more or less measured, more or less superficial. Many provide inexact facts, or do not supply crucial ones. Most are silent about the legal principles that are essential to making a decision [in such a case]. Some opinions inflame anger and distort the debate. Few faithfully relate the facts and correctly set out the applicable principles. Overall, one must conclude that they do not meet the criterion of the reasonable person set out in the case law. [68]

Or, if you don’t believe the Court’s assessment of the ignorance of the supposedly “informed public” about the the legal system, just ask yourself a couple of questions. How many members of the public could name any judges on the Québec Court of Appeal? How many lawyers, even, know the biographies of more than a few? (Heck, I probably don’t… ) All this to say, that the public won’t even be aware of Justice Mainville’s existence and appointment to the Court of Appeal, never mind the fact that, prior to that appointment, he served on the Federal Court of Appeal. It stands to reason that their confidence, such as it is, in the Court or in the judicial system more broadly cannot be affected by something they don’t know.

Admittedly this is a guess. I am not knowledgeable about the empirical research on this topic in Canada, if there is any, and the American surveys I have seen only address the public’s confidence in the U.S. Supreme Court ― not the Courts of Appeals. (Though that might itself be an indication ― the Supreme Court at least registers on the public’s radar screen; lower courts, not so much.) But it is perhaps useful to have a quick look at a different area ― that of election law. Courts, both in the U.S. and in Canada, have uncritically accepted the claim that the imposition of voter identification requirements contributes to public confidence in the integrity of the electoral process by helping to counter perceptions about the existence of voter fraud. This seems like a plausible enough inference ― but an analysis of the survey evidence on voter perceptions of the prevalence of fraud has shown that they are not correlated with the strictness of the identification requirements in place!

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Difficult to assess, “soft” considerations such as what it means to be a Québec jurist or public confidence in the courts should not be decisive in any legal case. They certainly need not be decisive in the Mainville reference. To the extent that the Court of Appeal does consider them, however, ― and it will inevitably have at least the former on its collective mind, as it was much discussed at oral argument ― they are not obstacles to its holding that Justice Mainville’s appointment is constitutional. On the contrary, they support this conclusion ― which is also the one that is correct as a matter of constitutional law. At the hearing, the Court of Appeal seemed inclined towards that conclusion. There is no reason why it should change its mind.

Ignoramus et Ignorabimus

I have mentioned the problem of political ignorance a number of times on this blog, notably in connection with legislative inaction on access to justice. The idea ― which I have shamelessly borrowed wholesale from Ilya Somin (who explains it, for example, here) ― is that most people are ignorant about political matters writ (very) large ― about the way their country’s political system works, about the people running it and their policies, and also about the data that should figure in even the most basic political decisions. This is the case despite the fact that the relevant information is very easily available thanks to the internet, and much of it was already available through the traditional media. But, as prof. Somin argues, it is rational for a voter not to bother investing even a small amount of time and effort to acquire this information, since the odds of his or her knowledge making any sort of difference to the outcome of an election are infinitesimal.

This all sounds extremely shocking and cynical. It is certainly unpleasant. It would be nice if the wisdom of crowds were a thing. In Canada, I suspect that there’s an additional danger in thinking that this is all stuff for (and about) our ignorant American neighbours, and that we’re better than that. So the results of a multi-country study released by IPSOS-Mori are all the more sobering. We might indeed be (a little bit) less ignorant than the Americans; but the levels of Canadians’ ignorance about some basic facts are still depressing.

For example, the survey asked people how many people out of every 100 in their country were Muslim (none of the countries surveyed had a Muslim majority or even a significant minority). In Canada, the average answer was 20 ― but the true answer is 2. On this question, Canadians are actually among the most ignorant of the people surveyed, both in the absolute terms favoured by the survey’s authors (i.e. we overestimate the Muslim population by 18%) and in relative terms (i.e. we overestimate it by 10 times!) which seem a more relevant measure of ignorance to me ― though I’m no statistician and would welcome an explanation to the effect that this relative measure is actually silly. (In case that makes anyone feel better, in relative terms, Americans overestimate their Muslim population by 15 times, while in some Eastern European countries it is by 50 times!)

Similarly we are among the worst, at least in absolute terms, at stating the proportion of people in our country who are over 65 years old. The average Canadian answer was 39%. The true answer is 14%. (In relative terms the overestimation was actually quite similar across all the countries surveyed ― people just about everywhere seem to think the number of over-65s is two to three times what it is in reality; but the overestimation in Canada is still close to the upper end of that spectrum.)

Canadians do somewhat better, compared to others anyway, on the question concerning unemployment (“out of every 100 people of working age, how many do you think are unemployed and looking for work?”), but even here the results are nothing to be proud of. The correct answer here is 7 ― the average Canadian answer is 23. We overestimate unemployment by “only” three times ― way better than the Americans, who exaggerate it more than five-fold, or the South Koreans, who think it is eight times more than it really is in their country. But consider, for a moment, the average Canadian answer on its own terms. How do people even think that one person in four is employed? And that’s the average answer, by the way, probably meaning that quite a few said it was much higher. 23% is close to the number at which unemployment peaked during the Great Depression. Do people seriously think things are that bad ― or even worse? I am, honestly, flabbergasted ― and puzzled.

The answers to the unemployment question are not the only puzzling ones, I should say. Those for the over-65 one are too, for instance. How do people come to think that 2 out of 5 of their fellow citizens are seniors? Surely that’s not what they see around them, unless they live in nursing homes? Prof. Somin often cites, as an example of political ignorance, the extent to which people overestimate public spending on things like welfare and foreign aid (which is, unsurprisingly, very bad). But at least budget numbers are not something we deal with in our day-to-day experience. Shouldn’t we be able to guess, at least roughly, the number of over-65s just from what we see in the street? I guess even that’s too much to expect.

Prof. Somin’s normative takeaway from his study of political ignorance is that “smaller government is smarter” ― that we should want the government (and thus ignorant voters) to make fewer decisions for us, and let us get on with our lives, in which we are actually willing to expend a good deal of time and effort on acquiring information relevant to our decisions, because we know that these decisions will in fact matter. I, for one, find this a persuasive argument. You might not. But in any case, our political theories really must make an effort to account for the pervasive ignorance of even some basic and easily ascertainable facts under which most citizens exercise their right to vote. Ignorance isn’t going away. Universal education has not eradicated it; nor has the availability of free information on the internet. Considering that people hold beliefs in defiance of things they see every day with their own eyes, this is unsurprising. This is just very depressing.

UPDATE: Bobby Duffy, the managing director of the Social Research Institute at Ipsos MORI, ventures some explanations of the survey’s findings in a Guardian op-ed. Ilya Somin also comments on the IPSOS study over at the Volokh Conspiracy.