there is a vast range of policy making that still cannot fall under the description of self-government. It is not self-government when countries undertake foreign policy, or adopt policies affecting children, or future generations, or animals, or the rest of nature. In an interdependent world, moreover, externalities loom large: our decisions affect outsiders even when the outsiders do not enter our thinking. A domestic energy or industrial policy, or lack of such a policy, may exacerbate global climate change, causing catastrophic floods and droughts elsewhere in the world, or the loss of agricultural lands and densely populated areas, even entire countries, to rising seawaters. Domestic deliberations on such matters cannot be termed an exercise in self-government. And this is not even to mention the effects on children, future generations, animals, and the rest of nature.
When we realize that popular government is not self-government, we ought to be nervous about its legitimacy. What gives the people the right to govern if their decisions reach far beyond themselves? The answer is that popular government offers necessary protection against the unjust and unwise use of power. Once we have enunciated this thought, however, we are reminded that the people can abuse power, too: a majority can mistreat a minority, and a community can mistreat outsiders. Additional protections are needed to forestall these dangers. We might say that the “auxiliary precautions” are the security the people must offer in exchange for their necessary but also dangerous exercise of political power.
This is a nonvoluntarist conception of democracy. The point of popular government is not to realize the people’s will (whether taken as given or refined through deliberation) but instead to foster just and wise policy. Democracy is a system designed to ensure the responsible exercise of power by means of checks and balances, with popular participation through majority voting serving as the most important check, but not the only one. Justice and the common good, not self-interest or group interest, should determine the political choices of citizens and officials alike. Of course, citizens should be on guard against policies that would cost them unjustly; our talent for identifying such policies is one of the principal reasons for democracy. However, we should always strive to distinguish between those personal costs that justice forbids and those that it permits or even requires. We may advocate our interests as far as justice and the common good permit, but no farther. Virtuous citizens in a democracy strive to honor the distinction and help one another do the same.
A venerable tradition in democratic theory has sought to reconcile the concepts of popular government and justice. The true will of the people (on this view) is that which can receive everyone’s reasonable consent, and to pass such a test is to comply with the demands of justice. Rousseau’s Social Contract is a classic statement of this argument, but it echoes among many heirs to the social contract tradition. The emphasis that democratic theorists often place on reciprocity as a norm of collective decision making—rotation of office, a general will that abstracts from the particular will, public reason, orientation toward consensus, inclusive deliberation—may be seen as an attempt to yoke collective will formation to the demands of justice. I agree that we should support institutional devices that steer public deliberation toward justice (indeed, that is what I am arguing). I think it is wisest, however, to keep justice analytically distinct from the popular will. We otherwise run the danger of misrepresenting the people’s will to make it conform to justice, or redefining justice to fit the people’s will. The strain is evident in Rousseau’s argument. We all know that the actual will of the people easily diverges from justice. If we turn from actual to hypothetical consent—that is, what it would be reasonable for the people to consent to—it is difficult to define “reasonable” without importing norms of justice (reached independently of the people’s will). When we recall that justice also governs our treatment of those not included in the deliberative process—foreigners, children, future generations, animals, and the rest of nature—it becomes still harder to posit a conceptual identification of justice with the popular will.
One possible response to this line of argument is that since justice is a contested concept, we must refer the question of its meaning and application and weight relative to other values to a process of political deliberation. Such a view (though widespread in contemporary political theory) carries epistemic modesty too far. It does little good to pretend that we (you and I) know nothing about justice. Even though our understanding can be improved—and public debate is necessary for its improvement—we already know a great deal. We know that justice requires respect for human rights (under a conception not too distant from that of the Universal Declaration of Human Rights), respect for the rights of animals (implying, at a minimum, the prohibition of systematic cruelty to animals undertaken to maximize economic profits), and abstaining from policies that consign future generations to conditions of life significantly worse than our own. (Of course, we know much more about justice than these minimal propositions.)37
The question that should guide the citizen’s political choices is not what do I want?, or what do we want?, but instead, what does justice require? (And to the extent that justice is not at stake, what does the common good, broadly understood, require?) Of course, you may be mistaken about what justice requires. Because your opinion is fallible, you should reexamine it and expose it to the force of other people’s criticisms. A well-designed political system encourages critical reflection on our views regarding justice. It also strives to ensure that the policies actually adopted will be just. Madison’s constitutional theory is a major contribution to the science of designing such institutions. It would be a mistake, however, to say that the outcome of any constitutional process is just by definition. True regard for justice forbids any such complacency. In a proper checks-and-balances system, justice remains an independent standard for evaluating any policies proposed or adopted.
Some people may deny that Madison really articulates a theory of democracy. But why not? It is true that he defends popular government mostly as a means rather than an end, yet he regards it as an indispensable means. His commitment to popular government is firm.
Some may argue that Madison is less than democratic because he believes that laws should be made by the people’s chosen representatives rather than the people themselves; because he expects that (at least in the federal union) elected representatives on average will be superior in virtue and wisdom to the people at large; and because he wants representatives to develop a perspective partly independent from that of their constituents, even though the latter, at periodic intervals, can remove them from office.
Are such views undemocratic? Not according to contemporary usage, for we now take it for granted that in “democracies” laws are made by the people’s representatives, and the idea that the people should choose representatives of better than average character and judgment is viewed as common sense rather than as a rejection of democracy. Yet some argue that contemporary usage has gone astray, that if we recall the original meaning of the word, we should at least acknowledge that the move from direct to representative democracy is a move toward less democracy. My goal has been to show that this view is not obligatory—that, with help from Madison, we can think about democracy in a different way. The inclination to view representative democracy as less democratic is part of a general inclination to view any impediment to the people’s will as a diminution or limitation of democracy. We can shed this assumption if we think that the purpose of popular government is to secure justice. Popular government is necessary, but the reason why it is necessary is the reason why a robust system of checks and balances is also necessary. If our goal as a people is justice, we will insist on holding power and also insist on a system of limits, restraints, separations, divisions, checks, revisions, and vetoes to block unjust policies. We do so because we appreciate both our capacities and our limitations, and recognition of our limitations is one of our capacities. Because this theory firmly commits us to popular government, because it articulates a rationale for constitutional systems that contemporary ordinary (that is, nonacademic) usage considers “democratic,” and because it provides a superior account of political legitimacy, we are permitted to say that it gives us the true meaning of democracy. (I know that some readers will persist in saying that I am making an argument to reject rather than redefine democracy.)
This conception of democracy
