If An Election Matters Too Much, Then The Constitutional Ideal Has Failed

Some people say that elections have consequences, but should any one election have large consequences?

I don't want people to get emotional about this essay, so I'm going to try to keep it at an abstract level. Let's assume I'm talking your average, generic Western democracy, save where I offer a few examples of what I mean.

In recent years, more and more often, commentators on an upcoming election have made the argument "This will be the most important election of your lifetime." This was said in Poland in 2015, when the moderate left and the moderate right were worried that the public would vote for the far-right Law And Justice party, and thus transform Poland into an authoritarian state like Hungary. And then the Law and Justice party won the election, and they did take Poland several steps in the direction of Hungary, until the war in Ukraine forced the Law And Justice party to become more sensitive to the demands of Poland’s international allies.

"This is the most important election ever" -- we've heard that recently in the USA, in Italy, in France, in Sweden.

Over the last year, one of the main themes that I have developed on this Substack is that the short-term majority is almost always stupid and irrational and yet the long-term majority is often wise and can achieve great things. We’ve examined historical examples and I've also summarized the idea in "The myth of Katechon."

Most of us have experienced something similar in our own lives, the conflict between our short-term desires and our long-term desires.

In the long-term we want to get good grades in school, in the short-term we want to watch Netflix.

In the long-term we'd like to be able to run a 10k, in the short-term we want to play Assassin's Creed.

In the long-term we'd like to eat healthy, in the short-term we want this platter of fully loaded nachos.

It's the same with societies: the things we are angry about today are often petty and irrational when viewed from the perspective of the passage of the centuries.

Staggered elections can help protect the wisdom of the long-term

Over the last year, I've suggested various techniques that might work to strengthen the long-term majority in its fight against the short-term majority. For instance, staggered elections to the legislature -- we've collectively looked at the bad and the good (DylanSargesson wrote a comment in which they said "Staggered terms can be highly problematic" and I replied to that in Are staggered elections for a legislature highly problematic?).

As a thought experiment, imagine a society that elects 9 legislators a year, for terms of 11 years. Thus the legislature has 99 people in it. The majority turns over every 6 years, a bit longer that the USA Senate, which turns over its majority every 4 years. (I should say "potentially turns over its majority" since rates of re-election are high.) The slower rate of turnover, and the large number of elections (11 elections in 11 years) means that no one election matters that much. It would take multiple elections to achieve a large scale shift in power. “Elections matter” — it is absolutely true that multiple elections should matter, but we should not want a single election to upend the constitutional order, as happened in Hungary in 2010.

We've also looked at the issue of How do we get great leadership? We've noted that for both the best right-wing leaders, and the best left-wing leaders, they all come from safe seats, and the safety of the seats is a big part of what allowed them to be great: they never had to worry about re-election, so they could focus on the real tasks of leadership. For instance, in Britain, after several failed attempts to get elected, Margaret Thatcher asked the Tory party to give her a safe Tory seat, as she very much wanted to focus on real leadership, and she did not want to be bothered with re-elections. She was given Finchley, which she then represented from 1959 to 1992, 33 years in total. As another example, this one on the left, Bernie Sanders has represented Vermont in Congress since 1991, a total of 31 years so far. It's a safe seat for him, so he gets to focus on real leadership, rather than worrying about re-election.

Likewise, we looked at the research that suggests that longer terms in office leads to better government. Long terms are another mechanism that allow the long-term majority to win out over the short-term majority.

The independence of the courts protects the wisdom of the long-term

At least since the 1700s there has been some understanding that a modern constitutional democracy should strengthen the long-term majority agains the short-term majority. The clearest example of this has been the independence of the judiciary, a concept that was informally understood for centuries, and then was finally codified as a constitutional principle, in Britain and the colonies, with the Act Of Settlement of 1706.

This idea, that the courts must be independent, was advanced further, in the USA with the Constitution of 1788, which gave life-time appointments to judges on the Supreme Court, and then more precisely in 1803, in the Marbury v. Madison decision, in which the Supreme Court consolidated its role as the arbiter of the Constitution.

Other democracies have slowly followed the USA down this road. In Britain, for a long time it was thought that the House Of Lords was the ultimate arbiter of the constitution, but in recent decades the British high court has evolved in the direction of a constitutional court. And in the EU, individual nations reject the idea of a national constitutional court, but the The Court of Justice of the European Union has been set up in deliberate imitation of the USA Supreme Court, as a court that can rule on constitutional matters.

Since membership in the high court is produced by majorities, over the course of decades, the high constitutional courts are the ultimate way that modern democracies strengthen the long-term majority in its fight against the short-term majority. However, there is some valid criticism of how this is done, in particular in the USA: the idea of appointing judges to life-time appointments can introduce the kind of arbitrary changes that the rule of law is supposed to protect us from. Having to wait on someone’s death to achieve generational reform is an idea straight out of the feudal era. Or likewise, as we saw with the death of Supreme Court Justice Ruth Bader Ginsburg, a case of malignant cancer brought arbitrary change for a 165 million women. One person’s health problems should not carry implications for so many other people.

In Britain the judges to the high court are appointed for 18 years, which might be the ideal balance: long enough that the judges are protected from short-term pressures, but short enough that the overall court will keep up with generational change.

In 1748, Montesquieu published his book The Spirit Of Law. In this book he invents the phrase "checks and balances" to suggest that an ideal government must have multiple systems of accountability, otherwise it is likely to lapse into tyranny. In the modern era, where democracy is threatened by populist revolts, we should hope to see more systems of "checks and balances." These might take many forms, but since we are talking about the courts, let's focus on this British idea of appointing judges to the high court for 18 years.

The problem with lifetime appointments is that deaths might not happen for many years, and then suddenly several people might die all at once. Turnover then becomes merely a matter of coincidence, and coincidence is the enemy of any system of checks and balances, which need to be reliable and consistent if they are to work at all. In the USA, mere coincidence allowed President Trump to appoint 3 Supreme Court Justices.

As a thought experiment, imagine if the USA appointed one Supreme Court Justice each year, for a term of 18 years (and so the court has 18 judges). In early 2022, the court would have had

5 justices appointed by President Bush

8 justices appointed by President Obama

4 justices appointed by President Trump

1 justice appointed by President Biden

That's 9 justices appointed by Republicans, and 9 justices appointed by Democrats. At some point during 2022, one of Bush's justices would have stepped down, and Biden would appoint his second justice, giving the court a 10/8 split in favor of the Democrats.

But this oversimplifies. For most of the last 18 years the Senate has been controlled by the party opposing the President, so the President would have had to offer moderate nominees who could gain some support from the opposing party. So the court would be far more moderate than the current real-life court.

(Under this scenario, to keep an opposing party from blocking all appointments, some kind of system of veto overrides would be needed.)

My point is, if we value the rule of law, then we should want to see its long-term wisdom protected against short-term pressures, and this basic idea has been understood for centuries, at least in the Western countries.

But it is also true that we do not go far enough. Most democracies still defer to loud, rule-breaking, short-term pressures. Most reward an angry populist style.

"Elections Matter" — this has become a popular slogan that both the left and the right use to motivate their people to go out and vote. Okay, sure, elections matter —they must matter for something or else we would have no reason to vote. But should any one election matter too much? Should a single vote, with a slim majority, allow the complete overturning of decades of precedent, or an entire system of alliances? How much should any one election matter?

The rule of law protects us from arbitrary change

What is the value of the rule of law? In theory it protects each of us from arbitrary decrees, it establishes reliable rules under which we can organize our lives, and so it allows us to plan the next few decades of our lives, with some assurance that we know what the rules will be in the future, or at least we will have a chance to register our displeasure with certain proposed changes.

A society can be ruled by a dictator, or it can be ruled by law. History teaches us that people are typically unhappy under dictators, over the long-term if not the short-term. From this alone we can deduce that the rule of law must have value: in the long-term it leads to greater happiness than dictatorship.

Why is dictatorship bad? Because it forces people to live without rules, to live in chaos, to live in perpetual uncertainty, where the whims of some madman can upend your life in an instant. But we need to notice this: a democracy where elections matter too much is a democracy that begins to have some of the same problems as a dictatorship. A democracy where all the rules you believed in and trusted can be upended with a single vote is a democracy where the citizens will suffer the same chaos and perpetual uncertainty as people would suffer under a dictatorship.

We saw this happen in Hungary (which we have previously analyzed).

We saw Poland also take several steps down this road. And almost all of the other Western democracies are at some risk of going down this road, where an excess of populism overwhelms all constitutional restraints.

In short, if elections matter too much, then the constitutional order has failed.

And so, this year, when we hear some commentator, on the left or the right, say "Elections Matter" we should respond: “Yes, but should they matter this much?”