15 Mid mid 2 Rights without Democracy IT WAS A MOMENTOUS DAY for the peasants of the Januschau, a re­ mote part of Eastern Prussia. For the first time in

15 Mid mid 2
Rights without Democracy

IT WAS A MOMENTOUS DAY for the peasants of the Januschau, a re­
mote part of Eastern Prussia. For the first time in their, or their fa­
thers’, or their fathers’ fathers’ lives, they were called upon to vote.
For centuries, they had been subjects—virtually possessions—of
the Oldenburg family, with no voice and very few rights. Now, they
were to partake in the incomprehensibly noble act of ruling them­
selves.
As they gathered around the local inn, which had hurriedly been
converted into a polling station for the occasion, they saw that the
new world retained not a few elements of the old. The land inspec­
tor of the Oldenburg family was handing out sealed envelopes.
They contained ballots that had already been marked.
Most peasants did as they were told. They cast their first­ ever
ballot without knowing who it was they were voting for.
One lone rebel dared to open his envelope. He immediately at­
tracted the inspector’s fury. Striking him with a cane, he shouted, in
honest indignation: “It’s a secret ballot, you swine!”1

In most places, democracy’s pretense to let the people rule was a
little more serious, and the elite’s hold over the electoral pro cess a

54 The Crisis of Liberal Democracy

little more tenuous. Even so, this story from the dawn of democ­
racy encapsulates the basic deal that traditional elites offered to the
mass of the people at the inception of our po lit i cal system: “As long
as you let us call the shots, we will pretend to let you rule.”
It’s a deal that has proven phenomenally successful for two hun­
dred and fifty years. Today, it is getting increasingly dif cult to sus­
tain.

Liberal democracy is all things to all people: a promise to the masses
to let them call the shots; a promise to minorities to protect their
rights from an oppressive majority; and a promise to economic
elites that they will be allowed to keep their riches. It is this chame­
leonic quality that has helped to make liberal democracy uniquely
stable.
At the most fundamental level, this quality depends on a ten­
sion that is central to the his tory of liberal democracies. The po lit i­
cal systems of countries like Great Britain and the United States
were founded not to manifest but to oppose democracy; they have
retrospectively been given a democratic halo by the latter­ day claim
that they let the people rule. The credibility of that claim depends
on what they are compared to. So long as the memory of abso­
lute monarchy was recent, and a more directly democratic system
seemed unfeasible, liberal democracies could claim to let the people
rule. This held true for the century or so during which democracy
enjoyed its unprecedented ideological hegemony. It no longer does.
As a result, the democratic myth that has helped to make our insti­
tutions look uniquely legitimate is losing its hold.
The undemocratic roots of our supposedly democratic institu­
tions are clearly on display in Great Britain. Parliament was not
designed to let the people rule; it was a blood­ soaked compromise
between a beleaguered monarch and the upper echelons of the
country’s elite. Only when the franchise was gradually expanded
over the course of the nineteenth and twentieth centuries did any­

Rights without Democracy 55

body have the idea that this system of government could possibly
be thought to resemble a democracy. Even then, the widening of
the franchise turned out to transform the system much less funda­
mentally than both the advocates and the opponents of democratic
reform had predicted.2

Because it was founded in a more ideologically self­ conscious
manner, that same his tory is even more evident in the American
case. For the Founding Fathers, the election of representatives,
which we have come to regard as the most democratic way to
translate popular views into public policy, was a mechanism for
keeping the people at bay.
Elections were, in the words of James Madison, meant to “re fine
and enlarge the public views, by passing them through the medium
of a chosen body of citizens, whose wisdom may best discern the
true interest of their country.”3 That this radically curtailed the de­
gree to which the people could ac tually in flu ence the government
was no accident: “The public voice, pronounced by the representa­
tives of the people,” Madison argued, “will be more consonant to
the public good than if pronounced by the people themselves, con­
vened for the purpose.”4

In short, the Founding Fathers did not believe a representative
republic to be second best; on the contrary, they found it far prefer­
able to the factious horrors of a democracy. As Alexander Hamil­
ton and James Madison made clear in Federalist No. 63, the es­
sence of the American Republic would consist—their emphasis
—“in the total exclusion of the people, in their col­
lective capacity, from any share” in the government.5

It was only in the nineteenth century, as the material and po lit i­
cal conditions of American society changed with mass immigra­
tion, westward expansion, civil war, and rapid industrialization,
that a set of entrepreneurial thinkers began to dress up an ideologi­
cally self­ conscious republic in the unaccustomed robes of a born­
again democracy. The very same institutions that had once been
designed to exclude the people from any share in the government

56 The Crisis of Liberal Democracy

were now commended for facilitating government “of the people,
by the people, for the people.”6

But though America increasingly came to be seen as a democ­
racy, reality lagged far behind. Only gradually did the United States
make real improvements to its democratic pro cess. With the rati fi­
ca tion of the Fif teenth Amendment in 1870, “race, color, or pre­
vious condition of servitude” could no longer be used to deny citi­
zens the right to vote (though, in practice, they often were).7 The
direct election of senators was established by the Seventeenth
Amendment in 1912.8 Fi nally, the Nineteenth Amendment, passed
in 1920, decreed that “the right of citizens of the United States to
vote shall not be denied or abridged on account of sex.”9

These reforms did make American institutions more democratic.
But the transformation of the language we use to de scribe the insti­
tutions of American democracy has been much more far­ reaching
than the transformation of the institutions themselves. And key to
that transformation has been a story about the limits of democratic
governance under modern conditions.
In ancient Athens, so the story went, the people—or at least
those who were regarded as the people, which is to say adult male
citizens—could rule directly because there were so few of them, be­
cause the territory of the state was so small, and because so many
of them owned slaves who took care of their daily needs.10 This is
no longer the case. As John Adams noted, the people “can never
act, consult, or reason together, because they cannot march five
hundred miles, nor spare the time, nor find a space to meet.”11 Un­
der modern conditions, direct democracy was supposedly impossi­
ble.
This realization allowed the democratic writers of the late nine­
teenth century to carry out a peculiar reinvention of American
government. While representative institutions had been founded in
self­ conscious opposition to the ideal of democracy, they were now
rede scribed as the closest instantiation of that ideal possible under
modern conditions. Thus, the founding myth of liberal democratic

Rights without Democracy 57

ideology—the improbable fiction that representative government
would facilitate the rule of the people—was born.
A man who puts new wine into old bottles, warns the Gospel of
Luke, is likely to come to grief: “the new wine will burst the bot­
tles, and be spilled, and the bottles shall perish.”12 The opposite
proved true for democracy. The rising tide of egalitarian sentiment
during the nineteenth century should, by rights, have come into op­
position with a set of avowedly aristocratic institutions. Instead,
their fresh packaging gave representative institutions a new lease
on life. It pleased the elites who continued to get their way on the
most im por tant issues as much as it pleased the egalitarians who
came to see it as an instantiation of their aspirations.
For a long century, democracy’s founding myth proved to be one
of the most powerful ideological forces in the his tory of mankind.
It was under its watch, and in the context of the miraculous tran­
substantiation between elite control and popular appeal which it
afforded, that democracy conquered half the globe. And though
it  had never exactly been correct—it would, all along, have been
possible to make more use of popular referenda, or to restrict the
ability of representatives to deviate from the will of their con stit u­
ents—it retained suf cient footing in reality to keep a hold over the
democratic imagination.

That basis is now crumbling. One reason is that, with the advent
of  the inter net, Adams’s worry about the people’s inability to de­
liberate together has come to seem quaint. It may be true that the
people cannot march five hundred miles nor find a place to meet.
But why should they need to? If the people truly sought to govern
themselves, they could easily do so. A virtual agora could replace
the physical agora of ancient Athens, allowing ev ery citizen to de­
bate and vote on policy proposals both big and small.
I am not suggesting that most citizens of contemporary democra­
cies want to be intimately involved in the pro cess of policy­ making.

58 The Crisis of Liberal Democracy

They don’t. Nor do I believe that deliberation on a virtual agora
would turn out to be civil and rational. It wouldn’t. For good rea­
son, the idea of direct democracy has many more adherents in the­
ory than it does in practice.
But though today’s citizens are no more inclined to vote and de­
liberate about ev ery obscure law and regulation than were the citi­
zens of the 1960s, or those of the 1830s, they now have a much
more instinctive sense that our democratic institutions are highly
mediated. To previous generations, it might have seemed natural
that the people would rule through parliamentary institutions and
elect their representatives by going to a polling station. But to a
generation raised on the digital, plebiscitary, and immediate voting
of Twitter and Face book, of Big Brother and American Idol, these
institutions have come to seem strangely cumbersome.
Today’s citizens may not be as invested in the outcome of debates
on public policy as they are in who gets voted out of the Big Brother
house. They may not even want their in flu ence on the system of
government to be as immediate as their vote in the season finale of
American Idol. But, for all of that, they have a very clear model for
what it feels like to have a real, direct impact. They know that if we
wanted to design a system of government that truly allowed the
people to rule, it would not look much like representative democ­
racy.

There is another, even more im por tant reason why democracy’s
founding myth no longer has the same hold over our imagina­
tion:  over the past de cades, po lit i cal elites have insulated them­
selves from popular views to a remarkable extent.
While the system was never set up to let the people rule, it did
have im por tant elements of popular par tic i pa tion. Most po lit i cal
decisions were made by an elected legislature. And many of these
legislators had deep links with their con stit u ents: they came from

Rights without Democracy 59

all parts of the country and had close connections with local asso­
ciations, from churches to trade unions.
Legislators were also likely to be deeply imbued with an ideol­
ogy that gave them a sense of purpose. Whether they were Social
Democrats who hailed from poor families and saw themselves as
advocates for ordinary workers, or Christian Democrats who came
from religious families and saw themselves as defenders of tradi­
tion, they had a clear po lit i cal mission—and often anticipated re­
turning to the communities from which they hailed after leaving
of ce.
Today, this is true for very few professional politicians. The legis­
lature, once the most im por tant po lit i cal organ, has lost much of its
power to courts, to bureaucrats, to central banks, and to interna­
tional treaties and or ga ni za tions. Meanwhile, the people who make
up the legislature have in many countries become less and less simi­
lar to the people they are meant to represent: nowadays, few of
them have strong ties to their local communities and even fewer
have a deep commitment to a structuring ideology.
As a result, average voters now feel more alienated from poli­

Liberal
Democracy

(e.g., Canada)

Undemocratic
Liberalism

(e.g., European Union)

Dictatorship
(e.g., Russia)

Illiberal
Democracy

(e.g., Poland)

Illiberal

U
n
d
e
m

o
cr

a
tic

Rights without Democracy

60 The Crisis of Liberal Democracy

tics than they ever have before. When they look at politicians, they
don’t recognize themselves—and when they look at the decisions
taken by them, they don’t see their preferences re flected in them.
There has never been a time of perfect popular par tic i pa tion. As
the founding myth of democracy reminds us, the glass has always
been half full. But now, it is in danger of going on empty.

Limits on Electoral Institutions

Over the last de cades, the elected representatives of the people have
lost a lot of their power.
Since the end of World War II, the com plex ity of the regulatory
challenges facing the state has vastly increased: Technology ad­
vanced and economic pro cesses became more intricate. Monetary
policy grew to be a core tool for stabilizing the economy. Even
more im por tant, some of the most pressing po lit i cal challenges now
facing mankind, from climate change to growing inequality, have
deeply global roots, and seemingly outstrip the ability of nation
states to find an adequate response.
Each of these changes has prompted a shift of power away from
national parliaments. To deal with the need for regulation in highly
technical fields, bureaucratic agencies staffed with subject­ matter
experts began to take on a quasi­ legislative role. To set monetary
policy and resist po lit i cal pressure to create ar ti fi cial booms in elec­
tion years, more and more central banks became in de pen dent. Fi­
nally, to do ev ery thing from setting rules about trade to negotiat­
ing agreements regarding climate change, an array of international
treaties and or ga ni za tions came into being.
This loss of power for the people’s representatives is not a result
of elite conspiracy. On the contrary, it has occurred gradually, and
often imperceptibly, in response to real policy challenges. But the
cumulative result has been a creeping erosion of democracy: as

Rights without Democracy 61

more and more areas of public policy have been taken out of popu­
lar contestation, the people’s ability to in flu ence politics has been
drastically curtailed.

BUREAUCRATS AS LAWMAKERS

When Great Britain’s Ministry of Administrative Affairs was found
to indulge in waste of gargantuan proportions, Sir Humphrey, its
most se nior civil servant, was hauled in front of a Select Commit­
tee  of the House of Commons. But instead of showing contrition
for the fact that his department had spent a boatful of taxpayers’
money on maintaining an unused roof garden, he tried to deflect
the blame.
“It was thought that the sale of flowers and vegetable produce
might offset the cost,” he ventured.
“And did it?” a member of Parliament asked.
“No,” he admitted.
“You agree the money was wasted?” she asked.
“It’s not for me to comment on government policy. You must ask
the minister.”
“Look, Sir Humphrey. Whatever we ask the minister, he says is
an administrative question for you. And whatever we ask you, you
say is a policy question for the minister. How do you suggest we
find out what’s going on?”
“Yes, yes, yes, I do see that there’s a real dilemma here, in that
while it is government policy to regard policy as the responsibil­
ity of ministers and administration as the responsibility of of cials,
the questions of administrative policy can cause confusion between
the policy of administration and the administration of policy, espe­
cially when responsibility for the administration of the policy of
administration con flicts or overlaps with responsibility for the ad­
ministration of policy.”

62 The Crisis of Liberal Democracy

“Well that’s a load of meaningless drivel, isn’t it?” the MP asked.
“It’s not for me to comment on government policy,” Sir Hum­
phrey replied. “You must ask the minister.”
Sir Humphrey and the Ministry of Administrative Affairs are, as
you will have guessed, fictional. They are drawn from Yes Minister,
a beloved 1980s BBC sitcom that portrayed the daily struggles of a
feckless politician trying to get his agenda past a bu reau cracy intent
on frustrating his plans and serving its own interests.13

But while Sir Humphrey’s exploits and verbal acrobatics were
exaggerated for comedic effect, they contained a sizeable kernel of
truth. “Its perceptive portrayal of what goes on in the corridors of
power,” Margaret Thatcher raved while in of ce, “has given me
hours of pure joy.”14 David Cameron, one of Thatcher’s real­ life
successors at 10 Downing Street, echoed the sentiment some three
de cades later. Studying politics at Oxford, he had once “had to
write an essay on ‘How true to life is Yes, Minister.’ I think I wrote
. . . that it wasn’t true to life. I can tell you, as prime minister, it is
true to life.”15

Frustrated politicians aren’t the only ones to emphasize the out­
sized role bu reau cracy now plays in the politics of many democra­
cies around the world. On the contrary, a broad field of academic
study has found both that it is very hard for politicians to control
the bu reau cracy, and that the scope of decisions made by bureau­
cratic agencies has expanded over the past years.

On the simplest account of the state, the people elect legislators
who turn the popular will into laws. Bureaucrats then apply those
laws to particular cases. They play an im por tant role, yes, but also
a subordinate one. Ultimately, their task is to serve the popular will
as it is expressed in legislation.
In reality, the story has never been quite so simple. In summariz­
ing Max Weber’s account of bu reau cracy, for example, textbooks

Rights without Democracy 63

usually emphasize that civil servants follow “general rules” rather
than settling cases “by individual commands given for each case.”16
But Weber realized that a judge or a bureaucrat is not just “an au­
tomaton into which legal documents and fees are stuffed at the top
in order that it may spill forth the verdict at the bottom.”17 On the
contrary, the pro cess of implementing legislation has always al­
lowed for discretion and creativity: even a meticulously written law
leaves questions of detail unanswered, and im por tant bureaucratic
procedures unstipulated. As a result, civil servants have played an
im por tant po lit i cal role ever since the rise of the modern­ day bu­
reau cracy. They were never quite as subordinate as the simplest
models of politics would have us believe.18

And yet the recent growth in the numbers of bureaucrats and the
expansion of their role has been striking. Over the course of the
twentieth and early twenty­ first centuries, the number of civil ser­
vants has skyrocketed and the scope of their in flu ence has im­
mensely expanded. As a result, the degree to which public policy is
determined by the elected representatives of the people has been
sig nifi cantly curtailed.
The fig ures are striking. In Great Britain, for example, the num­
ber of national bureaucrats has gone from about 100,000 in 1930
to 400,000 in 2015. (Over the same time period, the overall popu­
lation only increased by about a third.)19

While the increase in the size of the bu reau cracy is remarkable,
two qualitative changes may be even more im por tant: Government
agencies have become increasingly in flu en tial in the design of laws
passed by parliaments.20 At the same time, they have increasingly
taken on the role of quasi­ legislators, gaining the authority to de­
sign and implement broad rules in key areas like fi nan cial or en­
vironmental regulation. Taken together, these two developments
mean that a vast share of the rules to which ordinary citizens are

64 The Crisis of Liberal Democracy

subject are now written, implemented, and sometimes even initi­
ated by unelected of cials.
Traditional bureaucratic bodies are charged with implementing
legislation drawn up by the legislature, and they are led by a politi­
cian—often a member of Parliament in his or her own right—who
has been appointed by the president or prime minister. But in a
growing number of policy areas, the job of legislating has been sup­
planted by so­ called “in de pen dent agencies” that can formulate
policy on their own and are remarkably free from oversight by ei­
ther the legislature or the elected head of government.21 Once they
are founded by the legislature, these boards and commissions are
charged with taking “legally dif cult, technically complex, and of­
ten po lit i cally sensitive decisions.” Many of them are given full
regulatory authority—in other words, “they can issue regulations,
take administrative action to enforce their statutes and regulations,
and decide cases through administrative adjudication.”22

In the United States, these in de pen dent agencies include the Fed­
eral Communications Commission (FCC), created in 1934, which
regulates radio and television networks and rules on key questions
of the digital age like net neutrality;23 the Securities Exchange Com­
mission (SEC), also created in 1934, which is charged with pro­
tecting investors by regulating the operation of banks and other
fi nan cial ser vice providers, with maintaining fair markets, and
with facilitating cap ital formation;24 the Environmental Protection
Agency (EPA), created in 1970, which is empowered to pass reg­
ulation for such broad objectives as maintaining clean water and
protecting endangered species;25 and the Consumer Fi nan cial Pro­
tection Bureau (CFPB), created in 2010, which regulates personal
fi nan cial ser vices like mortgages and credit cards.26

The range of contentious issues about which these in de pen dent
agencies have ruled in the last years testifies to their importance.
The FCC has long determined what words are verboten on cable
television, making it largely responsible for the peculiar Ameri­
can custom of bleeping curse words in many television programs.27

Rights without Democracy 65

Key to regulating the most im por tant medium of the late twentieth
century, the FCC is now shaping the future of the most im por tant
medium of the early twenty­ first century: in 2015, it ruled to re­
quire inter net providers to follow “net neutrality” rules designed to
ensure equal access to a wide va ri ety of web offerings.28 Similarly,
the EPA has been a key player in fights about environmental policy
for the past fifty years, from banning the use of DDT to ensuring
the quality of public drinking water.29 Over the last years, it has
also made itself central to the American policy response to climate
change, deeming carbon a pollutant and proposing limits on admis­
sible emissions from new power plants.30 Meanwhile, in the first
five years of its existence, the CFPB has proposed a rule to curtail
payday lending and required fi nan cial advisors to act in the best
interest of investors, eliminating some of the risky practices that led
to the 2008 mortgage crisis.31

Far from making decisions about a few blockbuster cases, in de pen­
dent agencies are now responsible for the vast majority of laws,
rules, and regulations. In 2007, for example, Congress enacted 138
public laws. In the same year, US federal agencies finalized 2,926
rules.32 And it is simply not clear that voters enjoy any real form of
oversight over the rules by which they are bound.33

The United States is not alone. Equivalents to America’s in de pen­
dent agencies have developed in other countries as well. In Britain,
for example, there were once over 900 Quasi­ Autonomous Non­
Governmental Or ga ni za tions (QUANGOs), governmental bodies
that are funded by taxpayer money yet have little or no demo­
cratic oversight.34 While some QUANGOs, like the Environmental
Agency, were performing essential tasks, the rapid increase in their
number and the breadth of their tasks worried the public more and
more.35 In 2010, Parliament listened to the critics, promising to cut
or merge about a third of existing QUANGOs.36 But most QUAN­
GOs survived the cull, and many changes turned out to be cos­

66 The Crisis of Liberal Democracy

metic: “A closer analysis reveals that whilst the government have
reduced the number of public bodies, they have got rid of relatively
few functions and have instead engaged in . . . ‘bureau­ shufing.’”37

But perhaps the most powerful “in de pen dent agency” in the
world is the European Commission. In most countries, the bu reau­
cracy’s power is somewhat limited by the presence of a strong head
of government on the one side and the energy of a legislature with
real backing from ordinary citizens on the other side. In the Euro­
pean Union, by contrast, broad policy priorities are set at a summit
of the heads of government of individual member states that meets
only a few times a year. The legislature, meanwhile, is selected in
an  electoral contest that sees abysmal turnout and is largely re­
garded by voters as an opportunity to protest against unpopular
national governments—in part because the European Parliament’s
powers are, in any case, highly restricted. As a result, the European
Commission, an or ga ni za tion of career bureaucrats, has histori­
cally been the motor of most of the EU’s activities: it is the commis­
sion that initiates, writes, and implements a lot of EU law.38

Make no mistake: in de pen dent agencies have real accomplish­
ments to their name. By and large, I believe that the decisions of the
FCC and the SEC, of the EPA and the CFPB have made the United
States a better place. The same is true of the European Commission
and a va ri ety of British QUANGOs. And yet, there is a real trade­
off between respect for the popular will and the ability to solve
com pli cated policy prob lems. While in de pen dent agencies accom­
plish crucial tasks not easily performed by other institutions, it is
dif cult to deny that they take im por tant decisions out of po lit i cal
contestation.

CENTRAL BANKS

When I was growing up in Germany in the 1980s and 1990s, some
six de cades after hyperin fla tion had eaten away at the value of pa­
per money and the stability of the Weimar Republic, my teachers

Rights without Democracy 67

would recount stories about those years as though they had hap­
pened just a few months before I was born.
“My father had some savings,” I remember Frau Limens, my
third­ grade teacher, telling us. “He just wanted to keep them in the
bank. But ev ery one was telling him he had to find a way to spend
the money. It kept losing value. He needed to act as soon as pos­
sible. So, after much consideration, he decided to buy some thing
people would always want: sugar. That way, he thought, he could
sell the sugar bit by bit, buying bread and clothes for us until the
whole chaos was over.”
“Did it work?” one of my classmates asked. “Could you buy ev­
ery thing you needed?
“Well,” she said, gravely, “he borrowed the neighbor’s oxcart
and went to purchase the sugar. It was a large amount of sugar, and
it filled the whole cart. A big, white mountain. But it took him
longer than he …

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