Deliberative democracy aspires to combine two fundamental values in the design of political institutions—political equality and deliberation. The idea is to combine the equal consideration of everyone's views (political equality) with conditions that facilitate those views' being formed on the basis of good information, good faith discussion, and a balanced account of competing arguments (deliberation). Some theorists have held that the American Constitution has, from the beginning, been an attempt to create the social conditions where deliberative democracy might be possible, at least among representatives who speak for, or act for, the people.
james madison, most notably, was committed to the "republican principle" (which entailed political equality) as well as to a scheme of government that would "refine the popular appointments by successive filtrations," as he said at the constitutional convention of 1787. The aspiration for deliberative democracy was famously expressed by Madison in federalist No. 10, where he said representatives "refine and enlarge the public views by passing them through a chosen body of citizens." alexander hamilton added, in Federalist No. 71, "The republican principle demands that the deliberate sense of the community should govern … but it does not require an unqualified complaisance to every sudden breeze of passion, or to every transient impulse which the people may receive from the arts of men, who flatter their prejudices to betray their interests." It is representatives who must "withstand the temporary delusion" to "give time and opportunity for more cool and sedate reflection." The Federalist distinguishes deliberative public opinion, filtered through representatives considering the public interest on the basis of cool and sedate reflection, from the more direct expressions of the public will that can be twisted by vicious arts of campaigning and persuasion. Directly consulting the people can be dangerous because the people may be motivated by passions or interests to form factions adverse to the rights of others or to the general interest. Such factions are not motivated by deliberative public opinion, the Federalists believed. Indeed deliberation might well have prevented the evils of more direct democracy as experienced by the ancient Athenians. Madison speculates in Federalist No. 63 that a representative and deliberative body like the U.S. senate might have protected the Athenians from "decreeing to the same citizens the hemlock on one day and statues on the next." It was, after all, the Athenians who killed Socrates.
The Federalist position was that deliberative democracy could be practiced only in small representative bodies that preserved some independence from the public. No matter what the character of the participants, too large a body would make deliberative democracy impossible. "Had every Athenian citizen been a Socrates, every Athenian Assembly would still have been a mob," Madison asserts in Federalist No. 55. Madison also resisted attempts to include a "right of instruction" in the bill of rights, a right that would have stripped legislators of decisionmaking autonomy. Similarly, the Federalists opposed annual or even very frequent elections in order to give legislators flexibility to deliberate in the public interest.
The anti-federalists opposed the "filter" theory of representation because they thought that only the more educated and privileged would get to do the representing or filtering for everyone else. In such elite bodies, ordinary citizens such as simple farmers would not be included. The Anti-Federalists advocated a very different theory of representation, one modeled on a different metaphor, the "mirror." As Melancton Smith argued, in opposing the Constitution at the New York ratification convention, representatives "should be a true picture of the people, possess a knowledge of their circumstances and their wants, sympathize in all their distresses, and be disposed to seek their true interests." Anti-Federalists sought frequent elections, term limits, and any measures that would increase the closeness of resemblance between representatives and those they represented. In Rhode Island, the Anti-Federalists even held a referendum on the Constitution. Tiny Rhode Island was the only state to submit the Constitution to direct vote of the people. The Federalists, thinking such a method inappropriate and sensing probable defeat, boycotted the referendum and the Constitution was voted down. The Federalists argued that the only way to consult "the people in their assembled collective capacity" would be to gather representatives who "could reason, confer and convince each other." Only through a small representative body, such as the state conventions prescribed for approving the Constitution, could a deliberative decision be taken. The Anti-Federalist strategy of consulting the public without a requirement of organized deliberation (although the Anti-Federalists did conduct their referendum through votes of town meetings) represented the first salvo in a long war of competing conceptions of democracy. In the long run, the Federalist emphasis on deliberation and discussion may well have lost out to a form of democracy, embodied in referendums and initiatives, and in other forms of direct consultation that achieve political equality—regardless of whether or not it is also accompanied by deliberation.
In the more than two centuries since the founding of the Republic, many changes, both formal and informal, in the American political system have served to promote political equality through more direct public consultation, but at the cost of deliberation. Consider what has happened to the electoral college, the election of senators, the presidential selection system, the development and transformation of the national political party conventions, the rise of referenda (particularly in the Western states), and the development of public opinion polling. People vote directly and their votes are counted equally. Many aspects of Madisonian "filtration" have disappeared in a system that has taken on increasing elements of what might be called "plebescitary" democracy (embodied in referenda, primaries, and the influence of polls).
The Electoral College was originally intended to be a deliberative body, meeting state by state, that would choose the most qualified person. Now if members of the Electoral College exercise independent judgment, they are condemned as "faithless electors" and may be subject to challenge in the courts. Senators are elected directly since the seventeenth amendment (which came into effect in 1913). Primaries and referenda bring to the people decisions that were previously made by political elites—party leaders in the case of nominations and legislators in the case of laws. Public opinion polls bring substantive issues directly to the public (in representative samples) without any opportunity for "filtering" or deliberation.
Yet this movement to more direct consultation has come at a cost—a loss in the institutional structures that provide incentives for deliberation. Much social science research has established that ordinary citizens suffer from "rational ignorance" (to use Anthony Downs's famous phrase). Each individual voter or citizen can see that his or her individual vote or opinion will not make much difference to policy outcomes, and so there is little reason to make the effort to become more informed. The result is a consistently low level of knowledge in the American electorate about politics and policy. Hence, the pursuit of political equality through increasingly direct methods of public consultation has produced a loss in political information, informed choice, and deliberation.
Some theorists have held that the Framers of the Constitution foresaw this problem from the beginning and, in the words of Yale Law School Professor Bruce Ackerman, developed a "dualist theory" of democracy. Most of the time the public is inattentive and uninformed, just as social science has established. Ackerman calls the resulting condition "normal politics." However, every once in a while, the Republic is seized by an issue or a crisis and there are sustained periods of "mobilized deliberation," which Ackerman calls "constitutional moments." Thus far, there have been at least three: the founding of the Republic, reconstruction, and the new deal. In each case, deliberative democracy is practiced for a period long enough for fundamental principles to be seriously debated and established. The result is the possibility of informal constitutional change—informal because it takes place outside the confines of the formal amendment process specified in Article V.
The "constitutional moment" combines political equality and deliberation—for a "moment" or brief period of time. There are other efforts to realize both principles, at least for informal processes of public consultation that might advise policymakers and improve the public dialogue. "Deliberative Opinion Polling" selects random samples of the public and brings them together for several days of deliberation. The result is an explicit attempt to combine the two forms of representation at odds in the founding of the Republic: the filter and the mirror, the process of deliberation, and a small microcosm that is a picture of the whole. Through scientific random sampling a more representative group can be created than anything envisioned by the Anti-Federalists. And through sustained deliberation, the public's views can, in a sense, be refined and enlarged. All of this is to say that the quest to realize "deliberative democracy" continues in policymaking, the study of public opinion, and constitutional interpretation.
James S. Fishkin
Ackerman, Bruce A. 1991 We the People: Foundations. Cambridge, Mass.: Harvard University Press.
——1998 We the People: Transformations. Cambridge, Mass.: Harvard University Press.
Bessette, Joseph M. 1994 The Mild Voice of Reason: Deliberative Democracy and the American National Government. Chicago: University of Chicago Press.
Downs, Anthony 1956 An Economic Theory of Democracy. New York: Harper and Row.
Kramnick, Isaac 1988 The "Great National Discussion": The Discourse of Politics in 1787. William and Mary Quarterly 45:3–31.
Madison, James;H amilton, Alexander; and Jay, John 1987 The Federalist Papers (originally published 1788). New York: Penguin Books.
Rakove, Jack N. 1996 Original Meanings: Politics and Ideas in the Making of the Constitution. New York: Random House.
Storing, Herbert J. 1981 What the Anti-Federalists Were For. Chicago: University of Chicago Press.
Sunstein, Cass R. 1993 Democracy and the Problem of Free Speech. New York: Free Press.
——1993 The Partial Constitution. Cambridge, Mass.: Harvard University Press.