University at Buffalo School of Law Digital Commons @ University at Buffalo School of Law Journal Articles Faculty Scholarship Winter 1996 Shut Up and Vote: A Critique of Deliberative Democracy and the Life of Talk James A. Gardner University at Buffalo School of Law Follow this and additional works at: https://digitalcommons.law.buffalo.edu/journal_articles Part of the American Politics Commons, Constitutional Law Commons, and the Election Law Commons Recommended Citation James A. Gardner, Shut Up and Vote: A Critique of Deliberative Democracy and the Life of Talk, 63 Tenn. L. Rev. 421 (1996). Available at: https://digitalcommons.law.buffalo.edu/journal_articles/208 This article was published originally at 63 Tenn. L. Rev. 421 (1996) and is reproduced here by permission of the Tennessee Law Review Association, Inc. This Article is brought to you for free and open access by the Faculty Scholarship at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Journal Articles by an authorized administrator of Digital Commons @ University at Buffalo School of Law. For more information, please contact [email protected]. SHUT UP AND VOTE: A CRITIQUE OF DELIBERATIVE DEMOCRACY AND THE LIFE OF TALK JAMES A. GARDNER* I. INTRODUCTION In the last few years, the subject of "discourse" has received enormous attention in the legal academy. It is virtually impossible to open a legal journal without coming across articles devoted to the dynamics of legal and political discourse, the power relations among the participants, or the significance of the dialogic process. Much of this work has been devoted to establishing the desirability-and in some cases the ethical necessity-of social dialogue, especially patient and respectful listening.' However, until recently, few serious attempts had been made to fold the insights of dialogic theory into any kind of political theory that might provide concrete guidance to real people about how they ought to live their lives.2 * ProfessorofLaw, Western New England College School of Law; B.A. 1980, Yale University; J.D. 1984 University of Chicago Law School. Thanks to Neal Devins, Lise Gelernter, Eric Gouvin, Don Korobkin and Sam Stonefield for helpful comments and suggestions. I am especially grateful to Jay Mootz for his meticulous criticism and for his patience over the course of many discussions that greatly helped me clarify my thinking. An earlier version of this Article was presented at a faculty colloquium at the College of William & Mary, Marshall-Wythe School of Law. My thanks to the participants. 1. Much of this work has occurred in the areas of civic republicanism, communitarianism, and narrative theory. Representative works in each of these categories include, respectively: Frank I. Michelman, Foreword:TracesofSelf-Government, 100 HARV. L. REV. 4 (1986) [hereinafter Michelman, Traces]; Robert M. Cover, Foreword:Nomos and Narrative,97 HARV. L. REV. 4 (1983); and Richard Delgado, Storytellingfor Oppositionists and Others: A Pleafor Narrative, 87 MICH. L. REV. 2411 (1989). 2. In this regard, Jirgen Habermas, one of the most important figures in the blossoming of interest in discourse, has warned against the possibility of using his theory of discourse ethics as a ways of justifying a theory of politics. Jirgen Habermas, Discourse Ethics: Notes on a Programof PhilosophicalJustification, in THE COMMUNICATIVE ETHICS CONTROVERSY 60, 83 (Seyla Benhabib & Fred Dallmayr eds., 1990); see also Seyla Benhabib, Liberal Dialogue Versus a Critical Theory of Discursive Legitimation, in LIBERALISM AND THE MORAL LIFE 143, 149-50, 154 (Nancy L. Rosenblum ed., 1989). Recently, however, Habermas seems to be making steps in this direction himself. See JORGEN HABERMAS, BETWEEN FACTS AND NORMS (1995); Julrgen Habermas, Human Rights and Popular Sovereignty: The Liberal and Republican Versions, 7 RATIO JURIs 1, 12-13 (1994). For further reviews, see James Bohman, Complexity, Pluralism,and the Constitution- al State: On Habermas's Faktizitat und Geltung, 28 L. & SOC'Y REV. 897 (1994); Michel TENNESSEE LAW REVIEW [Vol. 63:421 A number of legal and political theorists have now begun to fill this gap by developing a political theory of "deliberative democracy."3 Motivated by serious concern over the steady erosion in the quality of American political discourse, and inspired by a combination of communitarian, civic republican, and discourse-ethics principles, proponents of deliberative democracy have built a political theory around the premise that substantial, open, ethical dialogue is a critical, and indeed defining, feature of a good polity. As its name suggests, deliberative democracy both recommends and attempts to justify a political life devoted centrally to talk. While the deliberative democracy project is attractive and well- motivated, I shall argue in this Article that it is largely a failure, whether viewed in instrumental or normative terms. From an instrumental perspec- tive, deliberative democracy is no better suited than other forms of democracy to deliver whatever benefits a life of dialogue might confer on citizens or society, and in some cases deliberative democracy would be substantially worse than some of its competitors. Normatively, both the kind of life recommended by deliberative democracy and its corresponding conception of the good citizen turn out to be highly unattractive; a deliberative democracy is quite simply not a place that most people would want to live. The Article is organized as follows. Part II introduces the problems of American political life to which deliberative democracy purports to respond, and then describes deliberative democracy's four main features: dialogue, diversity, openness, and consensus. Proponents of deliberative democracy contend that it merits our attention because it is historically grounded in the thought of the framers of the Constitution, and because it is an independent- ly attractive political theory with favorable constitutional ramifications. Part III examines the historical claim to constitutional status, and concludes that it is unfounded. Rosenfeld, Law as Discourse:Bridging the Gap Between DemocracyandRights, 108 HARV. L. REv. 1163 (1995). 3. Theorists who actually use the term "deliberative democracy" include: CASS R. SUNSTEIN, THE PARTIAL CONSTITUTION (1993) [hereinafter SUNSTEIN, PARTIAL CONSTITU- TION]; Joseph M. Bessette, DeliberativeDemocracy: The Majority Principlein Republican Government,in How DEMOCRATIC IS THE CONSTITUTION? (Robert A. Goldwin & William A. Schambra eds., 1980); Joshua Cohen, Deliberationand DemocraticLegitimacy, in THE GOOD POLITY: NORMATIVE ANALYSIS OF THE STATE 17 (Alan Hamlin & Philip Pettit eds., 1989); David M. Estlund, Who's Afraid of Deliberative Democracy? On the Strate- gic/DeliberativeDichotomyin Recent ConstitutionalJurisprudence, 71 TEX. L. REv. 1437 (1993); Miriam Galston, Taking Aristotle Seriously: Republican-OrientedLegalTheory and the Moral Foundation of Deliberative Democracy, 82 CAL. L. REv. 329 (1994); Amy Gutmann, The Disharmony of Democracy, in DEMOCRATIC COMMUNITY: NOMOS XXXV (John W. Chapman & Ian Shapiro eds., 1993) [hereinafter Gutmann, Disharmony]. For other authors relying on substantially similar analytic concepts, even if their terminology differs, see sources cited infra, part 1.B. 1996] DELIBERATIVE DEMOCRACY Parts IV and V take up deliberative democracy's merits as a political theory. Dialogue is at the heart of deliberative democracy. Part IV examines the instrumental benefits that deliberative democracy might confer by requiring citizens to engage in more and better dialogue, and concludes that it either cannot deliver such benefits, or does so no better than its competitors. Part IV additionally suggests that deliberative democracy may usefully be viewed less as a prescription for improving the quality of American political life than as a justification for a radical and obstructionist form of protection of political minorities. Part V examines the normative claim that a life lived under deliberative democracy is a good life and that in consequence deliberative democracy can be expected to constitute citizens who possess the character and exercise the virtues of the good democratic citizen. I argue that the ultimate though unintended result of deliberative democracy is to constitute citizens who are likely to be ineffectual, tyrannical and obstructionist-precisely the opposite of what deliberative democracy's supporters hope to achieve. Finally; Part V concludes with a brief sketch of what I call the "Madisonian citizen," a citizen far better suited to life in a modem republic characterized by the Madisonian conditions of large territory and population, a heterogeneous citizenry, and indirect democracy under a regime of popular elections. II. DELIBERATIVE DEMOCRACY A. The Problem of American Politics: A BriefHistory Criticism of the debased state of American politics has become almost a part of American politics. Political scientists have long documented, and political theorists have long decried, the superficiality of American electoral politics as well as the apathy, alienation, and lethargy of the American electorate.4 One relatively common diagnosis of what ails our society is that it is insufficiently democratic. Under this view, the primary culprit is our system of indirect democracy, in which public questions are decided by distant legislators and citizens are confined to the occasional choice of government officials.5 4. Two classic voting studies