Monday, July 04, 2016

Democracy Part 36: Representative Democracy in an Age Beyond the State--The United States in a Global Political Society

(Pix © Larry Catá Backer 2016)

For American Independence Day I have gotten into the habit of considering questions touching on the essence of American political ideology (e.g., Ruminations 56: On Symbols in American Political Ideology--From Russian Imperial Anthems to Confederate Battle Flags, Marriage, Legislature, and Statute; Ruminations 52: Surmizing Liberty and Equality in American Political Ideology; Democracy Part 28/Ruminations 51: On the Contradiction of Voting, Democracy and Revolution in the U.S. and Egypt).

Yet Americans don't think much in ideological terms; Americans think even less in historical terms, except perhaps to the extent necessary to reach back to a term useful in new ways for current debates. Americans invoke ideology instrumentally, especially in defense of their customs and traditions, or sometimes against them, in either case with sometimes profound effects. And sometimes Americans use their ideology strategically to manage or rework historical perception--but only when it is practical, that is when it furthers some political, social, economic or cultural objective with respect to which sufficient political mobilization can be cultivated.

So I have wondered how I might answer the following question were it ever posed by an individual who is not a U.S. national: If the traditional structures of the unending debates about the nature of representation in representative democracies obsolete in the shadow of globalization, who or what should be the object of representation.

The patterns and rituals of performance of debates around the concept representative democracy, and its application have by now been fairly well set in the West . The rituals of debate have also become somewhat fixed in those jurisdictions whose own systems are grounded in the rejection of Western notions of Western style representative democracy. These are nicely considered in The Future of Representative Democracy (Sonia Alonso, John Keane, Wolfgang Merkel, eds., (with the collaboration of Maria Fotou) Cambridge University Press, 2011). A reminder of the fixed terms in the latter case might be extracted from Chinese responses to the U.K. referendum to leave the European Union (Brexit) described here. These rituals and patterns are grounded in and constrained by the fundamental principle of democratic representation--that it must occur within, and is a marker of the legitimacy of the governmental apparatus of, states.  And indeed, it would come as something of an eccentricity--and certainly beyond the constraints of conventional debate, to think about principles of democratic representation beyond theories of states. Or perhaps better put, the eccentricity would lie in consideration of democratic representation beyond the fundamental ordering principle that has become commonplace by the middle of the 20th century--that states are legitimated only through some self constitution by act attributed to mass democratic will.   

As such. one worries about the performance of democracy and the management of theories of representation legitimated by its connection to democratic participation of some sort or other within conventional states. They apply to multinational democracies as well.  Sonia Alonso has considered this from the perspective of Spain (Sonia Alonso, "Representative Democracy and the Multinational demos,"  in The Future of Representative Democracy (supra). The principal theater of performance are elections. But increasingly, participation in governmental processes has also become an important element--from the processes and effectiveness of accountability of elected officials, to effective engagement in the workings of the administrative state (e.g., here).  These are matters of concern whether the system of democratic representation is grounded in Western principles of liberal democracy (see HERE and HERE) or of Marxist Leninist state organization (see HERE). Welshman Ncube perhaps articulates the principle very well ("Constitutionalism and Human Rights: Challenges of Democracy," in The Institutionalization of Human Rights in Southern Africa, 1 (Pearson Nherere and Marina d'Engelbronner-Kolff eds., 1993) "Representative government is at the very heart of democracy and constitutionalism. Without it is idle to speak of the constitutional protection of human rights." Id., at 14." But see HERE.

All of this makes a certain amount of sense in a world in which the state is positioned at the center of politics and governance. That is, where the state is conflated with the power to make law, and where the power to make law is at the heart of the core power of a democratic mass, and where that core power is expressed through a government constituted by an act of democratic will to establish both an apparatus for its expression and a set of rules memorializing the ideological constraints on the operation of the representative apparatus and its staffing, then it makes a certain amount of sense to focus the inquiry of representation, of democracy and of law within the state.  And it makes sense to conflate the product of representative democracy (law and governance) with representative democracy itself--however it is manifested in Western and Marxist Leninist states (e.g., here). Within this context it follows that the problem of democratic representation then takes on two distinct characteristics that consume its students. The first touches on the ideologies of representative democracy.  The second touches on the sometimes large gap between the ideal of representative democracy within a system and the realities of its implementation or practice in a jurisdiction (e.g., here and here).    

These problems--of ideology and application of representative democracy--have been at the center of the highly unusual trajectory of the presidential campaigns of both Hilary Clinton and Donald Trump.  Both of these candidates have benefited to been challenged by both the ideology and application of the way on which distinct classes of the American electorate approach representative democracy in the United States.  For Hilary Clinton, those principles and their application to the rules and processes of Democratic Party electoral politics have caused pain, especially in the use of the superdelegate system to help secure her nomination in 2016 (e.g., here ("Hundreds of unelected party elites known as superdelegates or unpledged delegates have enormous sway in the primary election. Superdelegates comprise approximately 15 percent of total delegates, and 30 percent of delegates needed to win the party’s nomination. This unelected party nobility, which overwhelmingly backs Hillary Clinton, entrenches establishment politics and can undermine the candidate democratically chosen by the party’s mass base. Debbie Wasserman Schultz, the chair of the Democratic National Committee and a close ally of Clinton, has herself openly admitted that the superdelegate system exists to undermine grassroots democracy within the party.").  For Donald Trump, those principles have permitted the running of a political campaign made successful in part precisely because of voter dissatisfaction with the old relationship with a Republican elite far too used to assuming that its electorate would do as it is told (e.g., here ("The ties between Republican elites — elected officials, donors and Washington insiders — and voters have actually been fraying for years.")). All of this is then layered on a more complex problem of representative democracy within a complex administrative state in which the relationship between accountability and election is tenuous and where the ability of ordinary citizens to effectively participate in the operation of the administrative state, especially in its legislative and administrative functions--has effectively been reduced to a nullity (e.g., here, here, here, here, here here, and here for example).

Buried in this conventional approach to the problem of representative democracy is the larger issue--one that tends to be the core of the separation between Western secular, religious and Marxist Leninist systems.  That problem is connected to the question--who does the representative represent? Within conventional state analysis the answer is simple to narrow but impossible to answer: the representative either represents her electorate or represents her conscience. This is a highly unresolved issue within the ideology of American governance.  On the one hand, it is clear that the representative represents the interests of her electorate.  But that interest itself might be understood as their short term interests expressed through mass mobilization, or their long term interests, the latter one that the electorate may not yet understand.  At the same time, the representative may believe that she must interpret her mandate through the ideological positions of the faction to which she belongs or that she must weigh the interests of the electorate who voted for her more than that of those who opposed her election. And sometimes, it has been argued, and quite famously by John F. Kennedy in his popular work, Profiles in Courage (1956) that sometimes the representative has the supreme duty to vote her conscience, whatever the political cost (see especially the recounting of Edmund Ross, a Kansas Republican, cast the deciding vote that ended the impeachment proceedings against President Andrew Johnson). This last suggests a natural law element to the issue of representation in the American version of representative democracy--one in which higher ideals--sometimes supra constitutional ideals. may well supersede any other obligation to represent either constituency, political party, or lower law. This issue remains quite contentious in the United States--and unresolved.  Here one confronts the fundamental orientation of representative democracy in its most powerful form; the question of the object of representation touches on the fundamental relationship between voter, representative, political party, state, and higher law that substantially shapes the form and trajectories of both the quality of representation and the character of democracy.

That issue of the object of representation is compounded in globalization.  Indeed, the problem of representative democracy--and its ideological structures for the legitimization of governance--has become more complicated in the context of globalization and the resulting fracture, fluidity, permeability, and polycentricity in the constitution and function of the state (e.g. here).
The problem of representation has become a central element for the development of human rights norms, not just within international organizations, but within states as well. The problem has been made acute by two significant changes in the organization of power that became visible after the 1950s. On one hand, the idea of the individual became more abstract. Mass democracy became symptomatic of a general trend toward the dissolution of the individual within a mass population, which was incarnated as the aggregation of its group characteristics, its statistics, and data. On the other hand, states were becoming less solid; the constitution of states, and of state power, formerly quite distinct in their forms and secure within their territories, gave way to a polycentric order in which national territory no longer defined and contained a compulsory and singular legal order sitting atop a hierarchy of governance. These two trends have had a noticeable impact, not just on law and governance generally, but more importantly, on the way that representation is understood and practiced. Today, the representation of individuals has become more problematic at the national level as it gives way to other bases of sovereign power derived from international norms. At the international level the individual loses representative capacity. (Backer, Larry Catá, Fractured Territories and Abstracted Terrains: Human Rights Governance Regimes Within and Beyond the State, Indiana Journal of Global Legal Studies).
Whose interests does an elected official serve?  And whose interests do administrators serve when they exercise power delegated by a legislature that itself represents the transposition of agreements with other states, international organizations or private international entities pursuant to contracts of investment and the like? Developing states have come to understand the difficulties of these questions.  They have come face to face with the disjunctions between mass democratic power--that focuses on the governments of states and their constitutional orders--and the obligations of governments whose duties and obligations may run to entities and organizations beyond the state. Though these governments may retain the power to repudiate and reset such obligations remains unconstrained under principles of public law, the economic, societal and political consequences may make such repudiation effectively impossible.  The rise of global interest communities--from international organizations, to civil society groups aligned along functionally differentiated interests, to global religious institutions as law makers and transnational governments--have altered the terrains within which the issue of representation, and of interest, are formed, aligned and expressed within national politics. This trend has also produced substantial national resistance (see, e.g., here, here, and here), which is unlikely to change its consequences even as it reshapes its engagement within states. Representation, then, expresses a new alignment of interests and a new configuration of politics, in which the state and its apparatus (including its democratic apparatus and constitutional principles) are now reconfigured as instruments of politics on a broader plane.

And this us back to the United States. It is in this context that one must ask--to what extent ought a representative, an elected official in the United States, be deemed to have a paramount obligation to represent, and protect, fundamental international norms in her capacity as an elected official?  To what extent must a national elected official represent the integrity and principles on which the international order is based when she serves in the legislature or as the paramount executive of a state? Twenty years ago the answer would have been easy--there would be no obligation to represent the international order, none at all, and indeed such a suggestion would have been met with skepticism. That is the question that one might consider as one reflects on this commemoration of the anniversary of the assertion of American independence. The question is not as odd as it might sound to ears more attuned to the more conventional approach to the issue of representative democracy within traditional notions of a state system.

This Republic tends to argue the issue of representation indirectly--whose interests are represented by a political figure is a consequential rather than a principal object of interrogation either in election or in accountability thereafter. It professional intellectuals tend to speak of special interests, of elites--religious, cultural and intellectual. Americans speak in terms of influence and of the management of those without any (e.g., here). We have presumed that the democratic masses have no influence on the officials they elect--except sometimes when they "act out"--and that they can be told what to do how to think and how to behave for their own good.  As a consequence, factions form to develop programs of influence and as structures to manage the expression of mass democracy organized through faction into groups that can be socialized as used as instruments through the exercise of the forms of democratic participation in government--voting and "engagement".

The has been a supposition since our founding that, indeed, the issue of representation is both ambiguous and fluid. That is certainly one way to approach Madison's essay on factions in Federalist No. 10. Americans never worry about faction--too much anyway--precisely because it was understood that representation was partial and fluid and that the obligation to represent was contingent on a factional universe in which factional allegiance was necessary to election. The Republic was thought to work because representation, in the aggregate, would reflect, at least roughly, the will of the people as a whole--most of the time and for most thing, mostly.  Over time this was as good as one could get--unless, of course, factions coalesced and became ideologically incapable of working together to produce aggregate governmental operation reflecting the blending of this factional interest. But in the face of the rise of globalized interests, and globalized factions, the equations and presumptions of Madison's Federalist No. 10, is threatened--and may no longer work.  Consider the way the issue arises now:

1. Your country is experiencing difficult times.  A large international trade association has approached your president and told him that if they want to move some of their operations  to your country.  But to ensure the success of this move they inform you of a number of measures that they would like to see repealed.  The president has signed an agreement indicated that she would use her best efforts to repeal this legislation, including labor and public health measures that are very popular with the electorate. This investment is essential to the short term stability of your country, but it effectively transfers some regulatory authority to the local representatives of foreign enterprises with respect to measures that your voters really love and that had been enacted with your support.  Should you vote for the measure?

2. You are an elected official of a small state that is a member of a large and powerful Union that shares a currency under a number of strict conditions.  Over the last several years  the Union has imposed increasingly draconian measures to stabilize the currency.  These came to a head when the government declared itself unable to service its debts and requiring loans fro the Union Central banking authorities. Your constituents have made it clear that they neither like nor trust the officials of the Union.  The political leadership of the state recently held a referendum asking whether they should adopt further austerity measures to acquire aid. The population overwhelming voted no--inclusion a majority of the people who you represent.  Union banking officials have just presented their final conditions for providing the needed loan, one that requires passage of legislation precisely of a kind your electorate has made clear that it will not support.  The accession agreement of your country to the Union makes clear the obligation of the state to comply with its obligation under the treaties that established the Union, including the one on monetary union. You believe in the Union and its ideals. Your political party has made it a central element of their political line to oppose all austerity measures. What should you do?

3. Your state has been a driving force in the creation of a large and complex network of international agreements that effectively create the current world economic order.  That economic order is central to the fundamental policy of the state.  Your have risen fast in a political party that is unalterably committed to the protection of the policy of extending this economic order.  A majority of the workers in your district are unalterably opposed to further extension of this global trading architecture because they believe it is bad policy and they derive little real benefit.  Your political party is substantially committed to more development.  Ratification of a treaty substantially extending this economic order is coming up for ratification.  What should you do? 

4.  The electorate of your country has just voted to seek to leave a longstanding Union of States. All of the nation's elite, your political party, and academics have condemned the referendum and the result.  You were part of that opposition.  A substantial majority of your constituents were in favor of leaving the Union.  They have made their views well known to you.  You know this is not in the long term best interests of the state.  A bill has been introduced to authorize the implementation of the result of this referendum.  How should you vote?

5.  The international community has just negotiated a comprehensive treaty on business and human rights. Among its provisions are a number that will substantially change the basic approach to corporate law in all 50 states.  Both the business community and labor unions are opposed. There may be some constitutional difficulties as well, though it will depend on the glass adopted by the courts.  The treaty is popular outside the United States.  And the United States has indicated a strong commitment to the principles of the treaty. Should you vote to ratify the treaty?

At first blush, these appear to be the sort of ordinary case that elected officials tend to work through as a matter of course.  But notice the shift in emphasis in three respects.  First the policy at issue touches on international activity that in most of these problems would have the effect of substantially narrowing the power of the state to legislate.  The second is meant to suggest a conflict between the short term interests of your electorate and your own sense of what is right. And the third is meant to suggest the conflict between national and global interests. Under traditional analysis, the international dimension should raise no issue, and indeed should be subordinated to the national interest.  But within globalization, the national interest itself may need to be subordinated to that of the international order in which it is embedded.  That may be a consequence of necessity (nos.  1 and 2) or national policy that has now locked the state into a particular course (no. 3). No. 4 is Brexit and poses the problem directly of the authority of the international order in the face of local electoral opposition. The last suggests the problem of internationalization at its most basic--it posits a treaty that will change the well established national law in the face of international agreement.

Under conventional analysis, the representative would have an easy time.  The international has no effect on the consideration of what he is representing--either the state or the electorate.  But these problems suggest the emerging pull of yet another representational object--the international order itself--whether public or private. It is bound up in the emerging notions of jus cogens and of the emerging consensus that states have a duty to conform to international law. It is bound up in the notions that state behavior, including in the exercise of its democratic power, is constrained by international norms--including the norm of democracy. The recent controversies over the impeachment of the presidents of Brazil (e.g., here) and of Honduras (e.g., here) suggests the possible scope of that representational pull. In each of those cases, legislators would have been constrained to represent the interests and effects of international norms, irrespective of the desires of their electorate or of their parties. These questions remain in a very preliminary state of exploration--and development.  But they will begin to assert stronger pull as the web of international agreement--and norms--becomes more powerful.  Representative democracy will then take on a new character.  A legislator may have direct accountability to the people who elect her.  But she also bears, increasingly, the obligation to represent the state and international order despite the express will of the people who elect her.  That change will have strong consequences for the meaning and operation of democracy int he coming decades--even in the United States. The Profiles in Courage of the 21st Century will be written about the individuals who put the normative principles of international norms--and the web f values embraced by the state--above the expressed short term interests of voters and the political desires of his political party. That extension of representation will further contribute to the reshaping of the state as it is embedded in the global system to which it will become increasingly embedded.  At that point, both the notions of representation and democracy will likely to subject to substantial revision.

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