© 1993 Karen Selick
Down with Democracy, Up with the Marketplace
An edited version of this article first appeared in the November, 1993 issue of Canadian Lawyer.  If you wish to reproduce this article, click here for copyright info.


 Down with Democracy, Up with the Marketplace

Readers who pay close attention to events in the United States will remember the Lani Guinier episode which occurred in May and June of this year.  Ms. Guinier was a law professor at the University of Pennsylvania, nominated by President Clinton to become Assistant Attorney General.  After heated protest, her nomination was withdrawn, and Ms. Guinier slipped quietly back into relative obscurity.  Her brief moment of fame provides food for thought, however.

The main source of controversy was Ms. Guinier's view of time-honoured democratic processes.  Put simply, she didn't like the idea of majority rule.  Black and white Americans, she felt, will always be poles apart in their political goals.  Whites will always form the majority, and their racist attitudes will always exclude blacks from forming part of the governing coalition.

She therefore proposed ways of circumventing the normal democratic processes to guarantee that "each [racial] group has a right to have its interests satified a fair proportion of the time."  One suggestion she wrote about was "concurrent majorities"--a requirement that any new legislation garner not only the support of a simple majority, but also the support of a majority of all minority voting blocs.

I must confess that I have never been a big fan of democracy myself, treasuring Winston Churchill's wise-crack that it is the worst possible system of government except for all the others.  Representative democracy in particular sticks in my craw. 

With so many unrelated issues to be represented on, and so many possible positions that can be taken on each issue, chances are slim that voters will find a candidate who accurately represents their views even a modicum of the time. 

However, even if we discarded the representative system and allowed each individual to represent himself on every issue through perpetual plebiscites, we still wouldn't have solved all the problems of democracy.  There remains what Lord Acton called "the one pervading evil of democracy....the tyranny of the majority."

Every decision in the political realm is always a yes-or-no, win-or-lose proposition.  That's the way politics works.  No matter how thoroughly minorities are represented in the voting population, no matter how close the vote comes to being a tie, and no matter how you monkey with the requirements for winning, when the final tally is announced, one side or the other just plain loses.  In an election won by Ms. Smith, those who voted for Mr. Jones can't just shrug off the majority's decision and start paying their taxes to the Jones government instead.  Who can blame Ms. Guinier for finding such a system frustrating?

Luckily, there is a whole realm of human activity where this kind of frustration virtually never occurs.  People who are exasperated by their powerlessness in the political system should take a look at this other way of getting things done.  It's called the marketplace. 

When I make the decision to buy a car, I don't have to worry about whether the majority of my neighbours will be choosing Toyotas rather than Fords this year.  Even if I find myself in the minority, I will still be free to buy whichever I prefer.  In fact, being in the minority may even offer me an advantage, since prices will tend to be lower for items which are not as much in demand.

Not only does the marketplace offer me the right to have my way regardless of what the majority thinks, it also provides me with better information for making my choice.  The latest model Fords and Toyotas have both been available for me to compare at any given moment during the last five years.  But when I have to make the political decision of whether to vote for the Conservative Party or the Liberals, I am not able to compare the Conservative administration of the last five years with the Liberal administration of the same vintage--there hasn't been one. 

Marketplace decisions have another advantage over political decisions: they give the man in the street a greater incentive to inform himself about the things he'll be faced with deciding on.  I know that I will actually end up with the car I select, so I take pains to research my options and make a sensible decision.  In the voting booth, however, I get not the choice I have made, but the choice that the majority has made.  The probability that my ballot will make any difference to the outcome of the vote is tiny.  Why should I go to a lot of trouble to ferret out detailed information about something I can't change anyhow? 

What conclusion should we draw from all this?  Well, not the one Ms. Guinier has drawn.  She wants to transform certain "social goods"--day care, housing, health care, and so on--into legal entitlements.  This would inevitably make these goods subject to political decision-making, which would mean majority rule--and minority frustration--all the way. 

If Ms. Guinier really wanted to empower minorities, she would be fighting like mad to keep as many goods and services as possible out of the political realm and in the realm of the marketplace instead. 



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June 07, 2000