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Pragmatic Representation: The Bridge of Authenticity and Legitimacy

Michael Jay Raymond

Department of Philosophy

University of North Carolina Asheville

One University Heights

Asheville, NC 28804

mraymond@unca.edu

(919) 413-5991

!Faculty Advisors: Dr. Brian E. Butler & Dr. Duane Davis

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INTRODUCTION

American democracy is “elitist” in practice despite idealistic notions to the contrary. This

is evident from the American structure of government. Original to the Constitution of 1787, only

United States Representatives were elected by popular vote while United States Senators, until

1913, were elected by their respective state legislatures. The President continues to be elected

through the Electoral College which has, on four occasions, produced a winner who lost the

popular vote . Moreover, Justices of the United States Supreme Court are appointed by the 1

President “by and with the advice and consent of the Senate” (US Const. art. II, sec. 2).

While this reality is likely to evoke a degree of moral outrage from many who advocate

for a more direct, and per their reasoning, a more just and equitable form of democratic

government, Richard Posner argues in Law, Pragmatism, and Democracy that a more direct,

“deliberative” form of democracy–referred to as “Concept 1”–is “in practice drawn to

nondemocratic methods of governance” (158). Posner claims that our current form of

government–“elitist” but “pragmatic”–is a manifestation of “Concept 2 democracy” (163).

Opposed to those who would seek to overhaul America’s “elitist,” republican democracy and

replace it with a more direct and “deliberative” government, Posner argues–although only in

passing–we ought to orient reform toward improvements in “Concept 2 democracy” (163).

Posner’s larger project “argues for a theory of pragmatic liberalism the twin halves of

which are a pragmatic theory of democracy and a pragmatic theory of law” (ix). However,

Posner pays little attention to the bridge between the two halves, what I term pragmatic

representation. Self-admittedly, Posner focuses “on concepts of democracy and legality rather

1824: John Quincy Adams; 1876: Rutherford B. Hayes; 1888: Benjamin Harrison; 2000: George W. Bush1

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than on the scope and limits of government . . .” (x). Nevertheless, he recognizes that those too

are “crucial issues for liberal theory” (x). It is exactly this, “the scope and limits of government,”

that I argue is addressed by a pragmatic theory of representation, which in turn plays a crucial

role in the political feedback loop of democratic American republicanism.

However, Posner’s defense of Concept 2 democracy is weakened by failing to emphasize

fair competition as a crucial element of authentic representation and legitimate elections . 2 3

Further, population projections anticipate a significant demographic shift in which the U.S. will

become a majority-minority nation by 2043, but more importantly, they predict that the

population will become less evenly concentrated throughout the nation (U.S. Census Bureau).

Posner fails to recognize and account for these changes to the American political landscape

which have the potential to trade Concept 2 for Concept 1 democracy and fundamentally change

American political institutions. By addressing these weaknesses and by focusing on the future

political landscape, this essay will build a case for a theory of pragmatic representation in which

“the governed can be said to be responsible for their governors’ actions” (Pitkin 44).

Specifically, the purpose of this essay is threefold. Firstly, I will empirically establish the

“imbalances in representation” Posner warns against. I will pay particular attention to how these

imbalances weaken Concept 2 democracy in practice today, and will then demonstrate the extent

at which they are unsustainable within the context of America’s future political landscape.

Authenticity is built upon four conceptions of representation explained by Hana Pitkin’s The Concept of 2

Representation: 1. formalistic; 2. symbolic; 3. descriptive; and 4. substantive. This will be incorporated and elaborated on in the second section of this paper.

I am referring to Lani Guinier’s definition which is already placed within the context of American republican 3

democracy and its heavy reliance upon decision making through majority rule. Guinier explains, “majority approval is legitimate only if we can assume that neither the majority nor the minority has disproportionate power. To put the point differently: majority rule legitimates a voting procedure … only to the extent the procedure is fair. To be fair, a procedure must be more than just efficient. It also must comport with the stability, accountability, and reciprocity assumptions” (78).

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Secondly, I will bridge the gap between Posner’s “pragmatic theory of democracy” and his

“pragmatic theory of law” by clarifying and utilizing aspects of Deweyan democracy which

Posner misinterprets and misapplies; thus establishing my theory of pragmatic representation.

Finally, I will argue for specific applications of this theory which will constitute increased

legitimacy in elections and, therefore, the authenticity of political representation. These

applications will allow pragmatic representation to thrive and, thereby, strengthen Posner’s

“theory of pragmatic liberalism.”

PART ONE: IMBALANCES IN REPRESENTATION

The imbalances in representation mentioned by Posner cannot be considered a complete

or thorough analysis of the issue–as was mentioned above, Posner merely mentions this in

passing. To his credit, however, Posner does make reference to the following: the skewed voting

power which favors the elderly over children while both compete for the governmental largesse

of programs like Medicare Part D and early education (152, 170); that representatives lack a

legal duty to accurately represent their constituents (153); the potential tyranny of the majority

(169); and the lack of competitive third parties (170). While the latter three issues will be shown

to be addressed indirectly through my theory of pragmatic representation, these imbalances are

difficult, if not impossible to overcome directly.

The first issue–skewed voting power favoring the elderly–demonstrates the complexity

surrounding the imbalances mentioned by Posner. As both the elderly and children compete for

government funded programs, like those mentioned above, and as voting power is skewed in

favor of the elderly, one quickly realizes that neither extending the franchise to children nor

taking away the vote of the elderly balances this issue in a practical manner. Lacking a perfect

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solution, voting parents are left with the high burden of balancing their own conflicted interests–

present and future–with the conflicted interests of their children, potentially having to choose one

over the other. Recognizing that all voters, not just voting parents, are subject to conflicted

interests–both internal and external–in addition to being only one in a plurality of voters, we

must also recognize the impracticality of establishing a legal duty requiring elected officials to

represent their constituents accurately. It is no wonder, based on the difficulties associated with

the imbalances mentioned by Posner, that he spent as little time on them as he did.

Regrettably, however, Posner altogether overlooks the imbalances found in the structure

of American republican democracy which can be addressed head-on. If done thoughtfully–

without giving preference to political parties or ideologies, but only broad principles which take

into account both the ends and the means–these structural realignments can indirectly improve

the circumstances and complications of the imbalances mentioned above. These imbalances

constitute two trends which minimize broadly authentic representation and legitimate elections,

and which endanger the American political institution of republican democracy. The first trend is

that of increased elitism within campaign finance which has recently received significant media

attention. Mostly advanced through civil suits decided by the Supreme Court, this trend has

resulted in the equating of money with speech, the permission of corporations, associations, and

labor unions to contribute unlimited financial resources to Super PACs, and has removed

aggregate contribution limits of individuals contributing to national political parties and federal

candidates . These decisions, combined with the stagnant size of our representative bodies and a 4

Citizens United v. Federal Election Commission, SpeechNow.org v. Federal Election Commission, and 4

McCutcheon v. Federal Election Commission

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widening gap between rich and poor, provide the wealthy few with a severely disproportionate

amount of influence over the American political institution and the outcomes it produces.

The second trend, unlike the first, is one which has been one hundred years in the

making, evolving slowly, and receiving little to no attention within the media or academic

community . This trend is the continued diminishment of what James Madison called political 5

representation’s “immediate dependence on … the people” and is a result of the poorly contrived

and neglected means of representative apportionment amid a growing population. The result of

this trend is the skewing of representative voting power between constituencies located in

different states, the refusal to provide Washington D.C. residents a voting representative voice in

the U.S. House, and the outright denial of a representative voice for states in the U.S. Senate.

Both trends are demonstrative of what John Dewey, an American Pragmatist and

philosopher, perceived as history’s “most common ideological opposition:” the opposition

between individualism and collectivism (Pappas 275-76). The minimization of a contrived

political voice which was purposefully equal–i.e., one person, one vote–in favor of another type

of political voice which is unequal–i.e., money equals speech–constitutes the veiled valuing of

individualism over collectivism. The significance of this cannot be overly exaggerated as the

very purpose of holding elections is to make political decisions on the basis of collective consent.

Individualism within the context of political decision making–expressed as dictatorship,

monarchy, or aristocracy–was the primary impetus for establishing separations of power as well

as checks and balances within American republican democracy. Posner recognizes this when he

considers “why representation should be at the center of democratic theory.” He writes:

See Appendix A.5

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…when government is not broadly representative, political stability is

endangered. Lacking the political voice, the unrepresented may turn disruptive.

Not just because they feel ignored, but also because the government, lacking

electoral pressure from them and even a clear sense of their desires and

circumstances, is likely to be unresponsive to their grievances. Eventually there

may be an explosion. More commonly, lack of representation gives rise to

alienation … that may cause the unrepresented to contribute less to society than

they would do if their interests were represented in the political process–to work

less hard, cooperate less with other people, and cease obeying laws unless the

sanctions for disobedience are harsh enough to coerce obedience. (167-68)

The fact that the voter franchise has been democratized through various amendments 6

implies that the institution of political representation has become more broadly representative.

However, the number of representatives apportioned to the people and their respective states has

not increased since 1910 , “as Congress could not agree on a method for apportion-7

ment” (“Apportionment by State”). While the number of U.S. Representatives has been capped

at 435 voting members, the population of those being represented has increased by 234.8

percent . This neglect of our mechanism of political representation has resulted in vastly unequal 8

representative voices.

14th, 15th, 19th, 24th, and 26th Amendments.6

The number of U.S. Representatives increased from 435 to 437 during the period from the “admission of Alaska 7

and Hawaii into the Union as states in 1959,” however, the number of U.S. Representatives decreased back to 435 members “in 1963, when the apportionment mandated by the 18th Census (1960) took effect” (“Adding Voting Members”).

The 13th Census (1910) reported a U.S. population of 92,228,496. 8

The 23rd Census (2010) reported a U.S. population of 308,745,538.

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Consider states like Montana and Rhode Island . The Census of 2010 reported that 9

Montana has a population of 989,415 people and Rhode Island a population of 1,052,567 people.

This constitutes a difference of only 63,152 people–making Rhode Island only three percent

larger than Montana . However, with only 435 representative seats to distribute amongst the 10

states, Montana received only one representative seat while Rhode Island received two. This

means that the representative ratio–the number of people one representative represents–for

Montana is 1:989,415 while Rhode Island has a ratio of 1:526,284. Put plainly, Rhode Island

boasts nearly twice the voting power as Montana does in the U.S. House of Representatives.

Unfortunately, this imbalance is not isolated to just these two states. Delaware and

Wyoming face an equally skewed relationship in that Delaware has a representative ratio of

1:897,934 while Wyoming boasts a ratio of 1:563,626. Even more incredible is the realization

that Washington D.C., the nation’s capital, has a population of 601,723 people, which is larger

than the entire population of Wyoming by 38,097. Yet–for no other reason than a legal

technicality–Washington D.C. only receives a non-voting delegate in the U.S. House of

Representatives, because representative seats are only apportioned among “the states,” and

Washington D.C.–being federal territory–does not reside within the boundaries of any particular

state. While the method of distributing representatives amongst the states can produce some

fairly equal ratios–Alaska and Arizona have ratios of 1:710,231 and 1:710,224 respectively –the 11

See Appendix B for a complete list of the 2010 populations and representative apportionment.9

The population of both states equals 2,041,982. Three U.S. Representatives were apportioned between them. 10

Montana constituted 48.45 percent of the population and received 33.33 percent of the representatives. Rhode Island constituted 51.55 percent of the population and received 66.67 percent of the representatives.

This constitutes the closest relationship of representative ratios produced from the entire U.S. Census of 2010 and 11

the subsequent distribution of representative seats.

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limited number of representative seats, combined with a growing population, has resulted in a

huge increase in the national representative ratio.

As was mentioned above, the population increased 234.8 percent during the hundred

years between 1910 and 2010. Without an increase in the number of representative seats, the

representative ratio grew from 1:212,020 in 1910 to 1:709,760 in 2010 and is projected to grow

to 1:1,063,034 by 2060 . Faced with this, one might defend the capping of the number of 12

representative seats on the basis that advances in technology allow for faster communication to

larger audiences located anywhere in the world. However, while this may make it easier for the

elected official to communicate to his/her constituency, it does not make it easier for the

individual constituents to be heard by the elected official. With a limited amount of time, elected

officials are disproportionately incentivized to spend their time meeting with campaign donors–13

be they private citizens or special interest groups–rather than those who are descriptively and

substantively representative of their constituency (Chang). This leaves average voters competing

against one another, through very impersonal forms of communication, to get a message through

to those who are making decisions on their behalf. Further, recognizing that interests can be

conflicted individually and collectively, an increase in the representative ratio necessarily makes

it more difficult for an elected official to know the interests of his/her constituency.

On their face these systemic imbalances are troubling. However, the impact of a fixed

number of representative seats is not only felt in the House of Representatives, it also

1910: 92,228496 / 435 = 212,019.531 12

2010: 308,745,538 / 435 = 709,759.9 2060 Population Estimate: 462,731,034 / 435 = 1,063,750

I would here like to question whose time it is. I chose the word “their,” however, I am not convinced that the time 13

is, in fact, the elected officials. I make this claim on the basis that elected officials are hired by, work for, and are paid by the people. This merely points out the emphasis being placed on campaign contributions and how its influence is corrupting as opposed to votes, which should be emphasized and are not corrupting.

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disproportionately allocates influence within the Electoral College as electoral votes consist of

the sum of a state’s House seats plus its two Senate seats. In fact, as the population continues to

grow–and grow at unequal rates amongst the states–these imbalances will only become more

dramatic. For example, some population projections suggest that as a result of the 2060 Census

the ten most populous states will hold twelve more representative seats than they do today and 14

that the number of states with only one representative seat will grow from seven to ten . While 15

there have only been four instances throughout the history of the U.S. in which a president lost

the popular vote and won the Electoral College, disproportionate growth–without the addition of

more representative seats–will be more likely to produce similar presidential election results on a

more frequent basis.

Since the 2000 presidential election in which George W. Bush lost the popular vote to Al

Gore, but won the Electoral College–and thus, the presidency–some have suggested that the

Electoral College be done away with. Defenders of the Electoral College system, like Posner,

rightly point out that the Electoral College ensures that presidential candidates have

“transregional appeal,” meaning that she/he must win the electoral votes of states in more than

just one region (“In Defense of the Electoral College”). Posner argues that this is beneficial

because otherwise “[t]he residents of the other [losing] regions are likely to feel disenfranchised–

2010 Census Ten Most Populous States: California, Florida, Georgia, Illinois, Michigan, New Jersey, New York, 14

Ohio, Pennsylvania, and Texas–a combined 235 representative seats. Projected 2060 Census Ten Most Populous States: Arizona, California, Florida, Georgia, Illinois, New York, North Carolina, Pennsylvania, Texas, and Virginia–a combined 247 representative seats.

2010 Census Seven States with only One Representative: Alaska, Delaware, Montana, North Dakota, South 15

Dakota, Vermont, and Wyoming–with a combined population of 5,273,718. Projected 2060 Census Ten States with only One Representative: Alaska, Delaware, Maine, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, Vermont, and Wyoming–with a combined population of 10,190,274.

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to feel that their votes do not count, that the new president will have no regard for their interests,

that he really isn’t their president” (“In Defense of the Electoral College”).

While this may be true today, it does not necessarily follow that it will be true at a later

date. After the distribution of representative seats in 2010, the most direct path a presidential

candidate could take to win the needed 270 electoral votes consisted of the fourteen most

populous states . This route, however, wasn’t practical for either of the two major presidential 16

candidates as only eight states could be considered reliable for the democratic candidate , three 17

for the Republican candidate , and the remaining three were considered battle-ground states . 18 19

While this supports Posner’s defense of the Electoral College as a means of ensuring

transregional appeal, Posner fails to consider what the dynamics of the Electoral College might

look like in only forty-six short years.

In 2060, the most direct path toward an Electoral College win will still likely consist of

the fourteen most populous states , however, the demographics in those states–and the nation as 20

a whole–are projected to have changed significantly. Three of the states that today are

considered strong Republican states–Georgia, North Carolina, and Texas–present serious

indications that call into question whether or not they will remain states that Republican

presidential candidates can rely on. For example, Texas–projected to be the most populous state

in the nation by 2060 and which will then likely have upwards of sixty electoral votes–has been

California, Florida, Georgia, Illinois, Massachusetts, Michigan, New Jersey, New York, North Carolina, Ohio, 16

Pennsylvania, Texas, Virginia, and Washington.

California, Illinois, Massachusetts, Michigan, New Jersey, New York, Pennsylvania, and Washington.17

Georgia, North Carolina and Texas.18

Florida, Ohio, and Virginia.19

Arizona California, Colorado, Florida, Georgia, Illinois, Michigan, New Jersey, New York, North Carolina, Ohio, 20

Pennsylvania, Texas, and Virginia.

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predicted by Republican Senator Rand Paul to become a “Democrat state within ten years if” the

GOP doesn’t become “a welcoming party” (08 Feb. 2014). Further, North Carolina was won by

a Democrat in 2008 and Georgia is projected to be a majority-minority state by 2020, calling into

question their long term viability for Republican presidential candidates (Census.gov).

While this does not concede that these states will necessarily become solid blue states , 21

the impact of this demographic and political shift is real and will result in a tightening of

presidential outcomes in these states. Further supporting the significance of this is the fact that it

is only considering the fourteen most populous states and, when all fifty are considered, the path

to 270 electoral votes becomes disproportionately stacked in favor of one political party. If this

is the case, then the Electoral College system as it was originally conceived, is not sustainable

without some increase in the number of electoral votes. Otherwise, the Electoral College will

begin to minimize, in very disproportionate ways, the other thirty-six states, making them

irrelevant in presidential elections. While the short term effect of this may not be too noticeable,

the long term effect of lost transregional appeal will likely cause friction and conflict in much the

same manner that the Electoral College–and its defenders–protect against today.

All of this leads us to the conclusion that political representation–as a mechanism which

allows for the fair competition of interests–has eroded to a point such that the rules are

disproportionately stacked against the average voter. These trends within the institution of

political representation have traded its “immediate dependence on, and … intimate sympathy

with, the people” (Madison, Federalist Paper #52) for an immediate dependence on campaign

contributions and the monopolization of power which constitutes a regression toward political

Nor does it concede that other states will necessarily turn solid red.21

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conceptions as ignorant as rule by divine right . Put bluntly, the American political institution 22

of republican democracy is no longer genuine in its process and is on the verge of losing its

ability to keep its elitism in check.

PART TWO: PRAGMATIC REPRESENTATION

Political representation is in bad shape. As I have shown it to exist in America today it is

becoming less and less balanced in its relation to the opposing ideologies of individualism and

collectivism. Within the context of a widening wealth gap, a growing population becoming more

unevenly dispersed, and a fixed number of political representatives the emphasis being placed on

individualism and elitism is likely to evoke an outcry for more direct and deliberative forms of

government. Movements like the Tea Party and Occupy Wall Street–coming from opposite ends

of the political spectrum–both embody this sentiment which expresses frustration with the

inability to hold large institutions and elected officials accountable through the collective input of

voting citizens. However, a major shift toward deliberative or direct democracy could constitute

an unbalanced emphasis of collectivism and could potentially trade one form of extremism for

another. Dewey, who Posner misunderstands, “warned us about the dangers of historical shifts

between opposing ideologies, and provided a philosophical framework to move beyond those

ideologies” (Pappas 277). He wrote: “[t]he modern world has suffered because in so many

matters philosophy has offered only an arbitrary choice between hard and fast opposites” (MW

12:137).

I feel justified in making this claim on the following grounds. Upward mobility has stagnated within the U.S. and 22

the wealthy are more and more born into wealth, rather than being its deserving recipient due to fair economic competition and innovation. If individuals are born into a drastically disproportionate amount of political influence, it is comparable to a system of divine right.

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Dewey’s single most important contribution to pragmatism was the rejection of “an

absolute dichotomy between assertions about facts and value judgements” (Putnam 47). Posner

dismisses Dewey’s attention to nuance when facing the “problems of men” (Guinlock 171),

suggesting that this philosophical pragmatism is nothing more than “abstract theory and

intellectual pretensions” (Posner 50). Posner’s pragmatism–everyday pragmatism–is “practical,”

“business-like,” and “no-nonsense” (50). “Beware,” he writes, “of the high-minded voter” (113).

Toward this end, Posner references Dewey’s work The Public and Its Problems suggesting that

Dewey “thought that ordinary people could learn to think [disinterestedly, intelligently,

empirically]” but that “he was not optimistic that they would” and was thusly “pessimistic about

the future of American democracy” (107). Posner then concludes that Dewey “miss[es] the

point” by describing the problem of democracy as an intellectual one (112). However, it was

Posner who missed the point.

Posner failed to recognize Dewey’s “distinction between democracy as a social idea and

political democracy as a system of government” (The Public and Its Problems 143). Democracy

as expressed within politics and government, for Dewey, allows for the “community itself” to

share the task of “selecting its governors and determining their policies” (146). Dewey

continues:

We have every reason to think that whatever changes may take place in existing

democratic machinery, they will be of a sort to make the interest of the public a

more supreme guide and criterion of government activity, and to enable the public

to form and manifest its purposes still more authoritatively. In this sense the cure

for the ailments of democracy is more democracy. (146)

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While Posner accuses Dewey of being pessimistic, this is clearly indicative of an

optimistic view of American democracy. While the previous section showed the extent at which

the American system of republican democracy has shifted away from “enabl[ing] the public to

form and manifest its purposes … more authoritatively” (146), Dewey’s philosophical

framework, being neither abstract nor high-minded, can serve as a guide out of our current

predicament without having to trade one extreme for another, as it is firmly fixed within the

conditions of actuality and does not shun or cover up the problems they present (LW 13: 274).

What Posner perceived as pessimism was, in fact, Dewey’s recognition that democracy–as an

ideal–is unattainable (The Public and Its Problems 148). Nevertheless, democracy as a tool for

managing “conflict[s] among persons who … cannot overcome their differences by

discussion” (Posner 112) “can be evolved and perfected,” however, “only in operation” (The

Public and Its Problems 167).

Posner interprets Dewey’s deliberative, concept 1, democracy to be an end that can be

realized almost immediately, if individuals would just shift their methods of inquiry to that of the

scientific attitude. Posner writes, “Part of what lay behind Dewey’s interest in the reform of

education was his belief that political democracy would not work well unless people learned to

think about political questions the way scientists think about scientific ones” (Posner 107). It is

true that Dewey wrote extensively on educational reforms, however, Dewey was not so naive as

to think that these reforms would either be implemented or their ends-in-view realized in a short

period of time. Posner assumes Dewey’s deliberative democracy will require specialization on

the part of the majority of citizens (167), and finds this unlikely as half the population has an “IQ

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below 100” (107), however Dewey’s scientific attitude “is not confined to those who are called

scientists.” Dewey continues:

The body of knowledge and ideas which is the product of the work of the latter is

the fruit of a method which is followed by the wider body of persons who deal

intelligently (reflectively) and openly with the objects and energies of the

common environment. In its specialized sense, science is an elaboration, often a

highly technical one, of everyday operations. (LW 13:272-73)

Where Posner sees ordinary people not having the aptitude or desire for politics–and thus

the need for elected elites to make decisions on their behalf–(107), Dewey sees human potential

that can only be realized through a slow, scientific, and democratic process of valuing ends-in-

view, that are themselves the means to future ends-in-view. Dewey writes:

Ends-in-view are appraised or valued as good or bad on the ground of their

serviceability in the direction of behavior dealing with states of affairs found to be

objectionable because of some lack or conflict in them. They are appraised as fit

or unfit, proper or improper, right or wrong, on the ground of their requiredness in

accomplishing this end. (Theory of Valuation 47)

Elections, within the context of Dewey’s theory of valuation, can be considered

democratic experiments that will then be observed by both voters and elected officials, and then

reflected upon to guide future behavior. However, within the context of politics and government

the reflective process demands communication between the voters and the elected officials. This

communication can take place in a number of ways, yet, voting is the only method of

communication that demands non-violent consequence. Posner would agree that when voting

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fails to communicate consequences to the officials within government–due to a rigging of the

system rather than a conflicted electoral voice–it cannot be said to be authentically representative

and the legitimacy of elections are called into question. This leads to the increased potential for

violent “explosions.” Posner’s misunderstanding and misapplication of Dewey’s pragmatism,

then, is confounding as the previous section–regarding the extent to which the voting body’s

voice has been diminished and undermined–damns the American system–Concept 2 democracy

as Posner describes it (162-63)–for its inability to protect against overwhelming elitism.

Pragmatic representation, here conceived, avoids “[t]his myopic way of thinking …

[which] leads to … societies moving … [from] one extreme to another” (Pappas 277). Further, it

provides alternatives to the all-too-common solutions born out of “a non reflective pattern of

compensation” that, when faced with “one kind of excess,” finds “its contrary …

desirable” (278). Moreover, pragmatic representation will serve as the bridge, providing

authenticity and legitimacy, between Posner’s pragmatic democracy and pragmatic law. This is

because pragmatic democracy is the competitive means of non-violent communication and

pragmatic law is the process of making–through legislative, judicial, and/or the executive’s

quasi-legislative and quasi-judicial actions–and enforcing of policy.

Therefore, any realization of republican democracy considered pragmatic demands

representation that is authentic, legitimate, and founded upon a conception “whereby the

governed can be said to be responsible for their governors’ actions’” (Pitkin 44). This

conception is pragmatic representation. Defined as a process, mechanism, and structure,

pragmatic representation returns the responsibility of political outcomes on the shoulders of

voters and returns ownership and authority of government to the people. By doing this it allows

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for the opposing ideologies of individualism and collectivism to compete within a political

context without risking the democratic process and republican structure of the American system

of government. This, in turn, will return legitimacy to elections and authenticity to political

representation of all forms.

PART THREE: APPLICATIONS

In order to avoid criticism from Posner for merely purporting “abstract theory and

intellectual pretension” it is necessary to demonstrate how the application of pragmatic

representation would manifest itself within American political institutions. This will also serve

to answer Posner’s call for reform and improvement upon Concept 2 democracy. In the first

section it was established that the current system has produced arbitrarily disproportionate

allocations of influence as the combined result of purposeful intervention and neglect. In the

second section it was established that for democracy and law to remain pragmatic, representation

must be the authentic result of legitimate elections. How then, can these issues be addressed

broadly–without giving preference to political parties or opposing ideologies–while also

encouraging competition? I argue, by increasing the minimum number of representatives from

one to two, including Washington D.C. in the apportionment of voting representatives, and then

basing the total number of representatives and their apportionment upon the application of the

least populous state’s representative ratio. Second, I argue that the responsibility of electing U.S.

Senators must be returned to the legislatures and general assemblies of the various states . 23

Third, I argue that the number of electoral votes each state receives should be sum total of the 24

Washington D.C. would not receive Senators.23

Washington D.C. would receive electoral votes equal to the number of representatives apportioned plus two as it is 24

currently conceived.

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number of representatives each state is apportioned plus three times the number of filled Senate 25

seats . These changes will balance the systemically disproportionate favoring of one ideology 26

over another, will strengthen the legitimacy of elections–further strengthening the authenticity of

political representation–while also encouraging the fair competition of interests. The result will

be a polity capable of producing strong pragmatic outcomes.

Beginning with the House of Representatives, it should be remembered that Congress

could not agree on a means of apportionment and thus, the number of representatives was capped

at 435. Bearing this in mind it is not advisable that the responsibility of apportioning and

distributing representatives be returned to Congress. For them to have to revisit this issue every

decennial would politicize the issue and allow for political hostage-taking that has become the

all-too-common norm in Congress. Changes should avoid any potential cause for further conflict

and strife within the system. Nevertheless, the 71st Congress’s inability to agree on a means of

apportioning representatives should not be cause for further neglect of political representation.

Therefore, consider that had the trends of apportionment from 1810 through 1910 continued

Three times the number of filled Senate seats was determined on the basis that it closest matches the current 25

impact played within the Electoral College. In other words, the current Electora College has a total of 538 electoral votes. Of these 538 votes, 100 come from Senate seats, which make up an 18.6 percent share of the total votes. However, with an increase in the number votes based on an increase in the number of representatives, the protection afforded smaller states by the Electoral College is lost without also increasing the number of votes based on Senate seats. By multiplying by three there can be as much as 21.4 percent of electoral votes based on Senate seats, but only if all seats are filled; there could be as little as zero.

Here I would like to clarify that if the Senate seat is left vacant for a period of time equal to six calendar months, 26

then that Senate seat will not be counted as “filled” for the purpose of distributing electoral college votes in the upcoming presidential election. The main reason for changing the election of U.S. Senators from state legislatures to the state’s general population was due to the inability of state legislatures from filling these seats. By tying electoral college votes to whether or not a Senate seat is filled provides incentive to the state legislatures to fill these seats and provides incentive to the state’s voting citizens to vote out state legislators if they fail to fulfill this responsibility.

Raymond !19

from 1910 to today there would be 1,080 voting members in the U.S. House of 27

Representatives. Now consider that by ensuring every state and the District of Columbia has at

least two representatives, and basing the representative ratio on the least populous state’s

population, there would be 1,127 seats in the U.S. House of Representatives . 28 29 30

From Posner’s perspective such a change would easily fall in line with Concept 1

thinking as it constitutes a shift toward more direct and deliberative democracy. While it

certainly constitutes a shift, there are several aspects that show this to not only be philosophically

pragmatic, but also, pragmatic in the sense of Posner’s “everyday” pragmatism. One of these

aspects is that it does not play into pure majoritarianism. Posner argues, “Representation must

not be equated to majoritarianism … [which] denies representation to electoral minorities unable

to form coalitions with other electoral minorities” (169). For this reason, Posner continues,

“inflexible adherence to the principle of ‘one person one vote’ in redistricting a legislative body

is questionable, though to the naive it is one of the bedrock principles of democracy” (169). Not

Average decennial population increase of 8,498,862 and average increase in representation of 25.3 seats during the 27

period 1810-1910. 25.3 ÷ 8,498,862 = 0.00000297686914 Average decennial population increase of 21,651,704 during the period 1910-2010 (with 0 seat increase in representation). 21,651,704 x 0.00000297686914 = 644.543 644.543 + 435 = 1,079.543

Some might argue that the number of representatives should be tied directly to the rate of population growth. This 28

method would produce a voting House of 1,456 members (based on 1910’s 435 member body and a 234.8 percent growth in population. However, I caution against. I do so on the basis that by tying the number of representatives to population growth, rather than the least populous state, you invite a further connection to be made between individual state population growth rates and the number of representatives they are apportioned. While this is not a necessary outcome of tying the total number of representatives to the population growth rate, it is an unnecessary risk as a similar outcome is achieved, simply, without risking the introduction of another form of politicization and increased strife between states.

Some might argue that a legislature that size is inherently conducive to conflict and gridlock. Arguments such as 29

these are not based in reality. As the Sansad of India (790 total members) and the National People’s Congress of China (2987 total members) have demonstrated, large legislative bodies can produce outcomes efficiently. This does not say anything, however, regarding the extent to which these legislative bodies are descriptively and substantively representative.

See Appendix C.30

Raymond !20

only does this shift avoid the pitfall of pure majoritarianism, it does not attempt to try and

perfectly recreate equal representative voices within the House of Representatives . 31

Nevertheless, it does level the playing field significantly. Just considering the fact that

Washington D.C. will be afforded at least two voting representatives it can be seen that political

representation will be provided to 601,723 people currently excluded from full participation in

the American political system. Further, the national representative ratio, which has grown from

1:212,020 in 1910 to 1:709,760 in 2010, will shrink to 1:281,445 rather than growing to a

projected 1:1,063,034 by 2060. Moreover, the skewing of voting power in the House of

Representatives will be considerably diminished as the largest difference in representative ratios

be equal to 1:99,552 as opposed to the current difference of 1:463,131 . 32

By lowering the overall representative ratio and making representative voices more equal

a number of things are accomplished without spiraling into a purely deliberative–and per

Posner’s thinking–gridlocked, political structure. To begin with, the numbers could mislead you

into believing that a 159 percent increase in the number of representatives would constitute a 159

percent increase in representation. This however, is not the case, and in fact, the increase in

representation is far greater than 159 percent as it balances the disproportionate influence time

and money realistically play in politics. As was discussed in section one regarding the ability of

representatives to be heard by the average voter, we know that representatives have limited time,

Such a conception, while mathematically possible, is in no way practical as it would demand for constant 31

adjustment and attention, would be destabilizing, and would demand social engineer obstructive to the free movement of the population and restrictive of commerce.

Alaska Population: 710,231; Representatives: 3; Representative Ratio: 1:236,744 32

North Dakota Population: 672,591; Representatives: 2; Representative Ratio: 1:336,296 336,296 - 236,744 = 99,552 Rhode Island Population: 1,052,567; Representatives: 2; Representative Ratio: 1:526,284 Montana Population: 989,415; Representatives: 1; Representative Ratio: 1:989,415 1,052,567 - 989,415 = 463,131

Raymond !21

and therefore, disproportionately favor campaign donors as opposed to average voters and

constituents. By increasing the number of representatives there are inherently fewer constituents

to compete with for a representatives time. Further, during election campaigns smaller districts

make it easier for representatives to present their political platforms while also being receptive to

the input of constituents.

Not just working against the limiting role time plays, an increase in the number of

representatives diminishes the influence of money on elections. By lowering the representative

ratio the importance of votes is emphasized while the increase in the number of representatives

makes it significantly more expensive for special interests to purchase sufficient voting power in

the House to push through legislation that is not in the interest of voters. This is a far superior

means of addressing the issue of campaign finance because it does not seek to restrict the speech

of wealthy citizens, just minimize the significance of their wealth. Not only does it avoid costly

and uncertain litigation dependent on a judicial branch uninterested in balancing the varying

forms of speech, it also avoids the poorly contrived regulation born out of the executive and

current legislative branches.

Additionally, more representatives and smaller congressional districts makes

gerrymandering inherently more difficult . Making it more difficult to gerrymander prevents 33

election outcomes that confuse the bastardization of a political system for an election mandate

(Klein). In practical terms, becoming more difficult to creatively disenfranchise populations

(Yelton), it should prevent outcomes like that of the 2012 congressional elections in which

I am not convinced, however, that this will completely solve the problem of gerrymandering. Never 33

underestimate the creativity of humans when presented with an opportunity to consolidation of wealth and power. Therefore, I think the best longterm solution to the issue of gerrymandering is the creation of a non-partisan committee responsible to drawing district lines. This could be done either at the federal level, or a federal requirement could allow for it to be handled at the state level.

Raymond !22

Democrats won nearly one-half million more votes than Republicans but still failed to take

control of the House (Matthews). Outcomes such as these, while politically beneficial to one

party, weaken election legitimacy and the authenticity of representation.

However, if the goal is to create a balanced structure in which the fair competition of

interests is fostered, then reinvigorating the House of Representatives’s direct dependence on the

people demands that the interests of state’s rights be returned its voice in the U.S. Senate. While

many might argue that this would constitute a return to elitist tendencies within American

republican democracy, I disagree on the grounds that it emphasizes the importance and

consequences of state elections. The people retain their influence over state elections and 34

influence the election of Senators indirectly. This ensures that Senators are not deaf to the

concerns of the average voter, but contextualize that sentiment with the interest of the state as it

relates to the federal government and other states within its region.

Another benefit of returning the election of U.S. Senators to the state legislatures is the

diminished emphasis placed on being an incumbent. With the potential for change in state

legislatures comes the real chance of replacing those who place the interests of themselves over

the interests of those they serve and there is an increase in the accountability and oversight of

Senators. Further, as one of the principal issues currently plaguing the legitimacy of elections is

the Supreme Court’s insistence on the narrow definition of bribery as quid pro quo, returning the

responsibility of electing U.S. Senators to state legislatures circumvents the Supreme Court’s

narrow definition by making the election process significantly more intimate.

I argue that similar adjustments ought to be made at the state level regarding the state representative ratio.34

Raymond !23

So far I have shown how an application of pragmatic representation can restore balance

to the opposing ideologies of individualism and collectivism as it pertains to Congress, while

circumventing many of the institutional obstacles currently in place to truly pragmatic

government. However, these applications will also impact the dynamics of the Electoral

College. Understanding that the President of the United States serves as the ceremonial head of

state, chief executive officer, and commander in chief, it is no wonder that defenders of the

Electoral College point out how crucial it is that presidents have transregional appeal. Yet it has

also been established that potential demographic shifts, uneven population growth amongst the

states, and proposals for the election of the president by straight popular vote could lead to

another form of disproportionate electoral influence that is destabilizing to the political system as

a whole and which undermines the institution of American republican democracy. Pragmatic

representation avoids these issues and further serves as an incentive for state legislatures to

ensure Senate seats are not left vacant due to ideological differences.

By increasing the number of representative seats, emphasis is returned to the importance

of population in presidential elections, however, as we have already learned, transregional appeal

is an important characteristic the Electoral College preserves. Wanting to ensure that smaller

states are still relevant in presidential elections, the application of pragmatic representation

increases the number of electoral votes afforded to a state based off of their filled Senate seats.

This provides a significant incentive to state legislatures as well as the average voter to ensure

that Senate seats are filled. One potential unintended consequence of this would be that a state

legislature could purposely leave Senate seats vacant in order to lessen the impact of their state in

a presidential election. If their party is in control, and they are aware that the general population

Raymond !24

is not likely to vote for the candidate they support, this tactic could be implemented. However,

to have significant impact on the outcome of the presidential election, numerous states similarly

aligned politically would have to do this. Further, the state legislatures would have to answer for

such a tactic when they come up for re-election, making such a tactic equivalent to career

suicide.

The applications of pragmatic representation here presented are just a number of potential

changes that could be applied, however, they are significant in both their ability to preserve

desired aspects of political representation while doing away with unwanted characteristics. Any

road forward in reforming and improving our political institutions will be difficult. Those in

power will resist such reforms, however, their resistance is only evidence of the power such

changes embody. Further, there will be those who try and infiltrate ideas such as these so that

they can be exploited at a later date for the benefit of particular ideologies, political parties, and

individuals. The potential of resistance and co-opting, regardless of which side it arrises from, is

no cause for inaction.

CONCLUSION

Much of what has been advocated for may have the appearance of shifting solely in the

direction of “Concept 1 democracy”–direct and deliberative democracy–however, I argue that it

only shifts so far as necessary to balance the institutions of American democracy and American

republicanism. Pragmatic representation has been shown to return legitimacy to the process of

elections, authenticity to the institution of political representation, while also providing an

increase in the number of interests able to compete fairly within the polity.

Raymond !25

Nevertheless, pragmatic representation does not approach the problems grounded within

the conditions of actuality with rose tinted glasses. It addresses the problems of an imperfect

system, run by imperfect humans, all within an imperfect world. It recognizes the inherent

difficulties associated with representation and does not pretend to conceive of a perfect system,

only a better one. When faced with the substandard solutions of hard and fast opposites,

pragmatic representation demands and seeks out alternatives. Further, it recognizes that it says

nothing new, but rather, merely re-contextualizes old ideas that have been misapplied or

forgotten. In his book Hocus Pocus, Kurt Vonnegut writes, “Another flaw in the human

character is that everybody wants to build and nobody wants to do maintenance.” This

conception is nothing more than the maintaining of a once great institution that can again know

the luster of good governance.

Raymond !26

APPENDIX A

U.S. POPULATION REPRESENTATIVE RATIO

1910 92,228,496 212,020

1920 106,021,537 243,728

1930 123,202,624 283,224

1940 132,164,569 303,827

1950 151,325,798 347,875

1960 179,323,175 412,237

1970 203,302,031 467,361

1980 226,542,199 520,787

1990 248,709,873 571,747

2000 281,421,906 646,947

2010 308,745,538 709,760

Raymond !27

APPENDIX B

2010 Census Based Representative ApportionmentREPS POP REP RATIO

United States 435 308,745,538 709,760Alabama 7 4,779,736 682,819Alaska 1 710,231 710,231Arizona 9 6,392,017 710,224Arkansas 4 2,915,918 728,980California 53 37,253,956 702,905Colorado 7 5,029,196 718,457Connecticut 5 3,574,097 714,819Delaware 1 897,934 897,934Florida 27 18,801,310 696,345Georgia 14 9,687,653 691,975Hawaii 2 1,360,301 680,151Idaho 2 1,567,582 783,791Illinois 18 12,830,632 712,813Indiana 9 6,483,802 720,422Iowa 4 3,046,355 761,589Kansas 4 2,853,118 713,280Kentucky 6 4,339,367 723,228Louisiana 6 4,533,372 755,562Maine 2 1,328,361 664,181Maryland 8 5,773,552 721,694Massachusetts 9 6,547,629 727,514Michigan 14 9,883,640 705,974Minnesota 8 5,303,925 662,991Mississippi 4 2,967,297 741,824Missouri 8 5,988,927 748,616Montana 1 989,415 989,415Nebraska 3 1,826,341 608,780Nevada 4 2,700,551 675,138New Hampshire 2 1,316,470 658,235New Jersey 12 8,791,894 732,658New Mexico 3 2,059,179 686,393New York 27 19,378,102 717,707North Carolina 13 9,535,483 733,499North Dakota 1 672,591 672,591Ohio 16 11,536,504 721,032Oklahoma 5 3,751,351 750,270Oregon 5 3,831,074 766,215Pennsylvania 18 12,702,379 705,688Rhode Island 2 1,052,567 526,284South Carolina 7 4,625,364 660,766South Dakota 1 814,180 814,180Tennessee 9 6,346,105 705,123Texas 36 25,145,561 698,488Utah 4 2,763,885 690,971Vermont 1 625,741 625,741Virginia 11 8,001,024 727,366Washington 10 6,724,540 672,454West Virginia 3 1,852,994 617,665Wisconsin 8 5,686,986 710,873Wyoming 1 563,626 563,626Washington DC 1 601,723 1

Raymond !28

APPENDIX C

1,080 Representatives - Geometric Mean Min of 2 Reps Based on Least Populous StateRANK STATE REPS POP REP RATIO MIN E.C. MAX E.C. REPS POP REP RATIO MIN E.C. MAX E.C.

23 Alabama 17 4,779,736 281,161 19 19 17 4,779,736 281,161 17 2347 Alaska 3 710,231 236,744 5 5 3 710,231 236,744 3 916 Arizona 22 6,392,017 290,546 24 24 23 6,392,017 277,914 23 2932 Arkansas 10 2,915,918 291,592 12 12 10 2,915,918 291,592 10 161 California 130 37,253,956 286,569 132 132 132 37,253,956 282,227 132 13822 Colorado 18 5,029,196 279,400 20 20 18 5,029,196 279,400 18 2429 Connecticut 13 3,574,097 274,931 15 15 13 3,574,097 274,931 13 1945 Delaware 3 897,934 299,311 5 5 3 897,934 299,311 3 94 Florida 66 18,801,310 284,868 68 68 67 18,801,310 280,617 67 739 Georgia 34 9,687,653 284,931 36 36 34 9,687,653 284,931 34 4040 Hawaii 5 1,360,301 272,060 7 7 5 1,360,301 272,060 5 1139 Idaho 6 1,567,582 261,264 8 8 6 1,567,582 261,264 6 125 Illinois 45 12,830,632 285,125 47 47 46 12,830,632 278,927 46 5215 Indiana 23 6,483,802 281,904 25 25 23 6,483,802 281,904 23 2930 Iowa 11 3,046,355 276,941 13 13 11 3,046,355 276,941 11 1733 Kansas 10 2,853,118 285,312 12 12 10 2,853,118 285,312 10 1626 Kentucky 15 4,339,367 289,291 17 17 15 4,339,367 289,291 15 2125 Louisiana 16 4,533,372 283,336 18 18 16 4,533,372 283,336 16 2241 Maine 5 1,328,361 265,672 7 7 5 1,328,361 265,672 5 1119 Maryland 20 5,773,552 288,678 22 22 20 5,773,552 288,678 20 2614 Massachusetts 23 6,547,629 284,680 25 25 23 6,547,629 284,680 23 298 Michigan 35 9,883,640 282,390 37 37 35 9,883,640 282,390 35 4121 Minnesota 19 5,303,925 279,154 21 21 19 5,303,925 279,154 19 2531 Mississippi 10 2,967,297 296,730 12 12 11 2,967,297 269,754 11 1718 Missouri 21 5,988,927 285,187 23 23 21 5,988,927 285,187 21 2744 Montana 3 989,415 329,805 5 5 4 989,415 247,354 4 1038 Nebraska 6 1,826,341 304,390 8 8 6 1,826,341 304,390 6 1235 Nevada 9 2,700,551 300,061 11 11 10 2,700,551 270,055 10 1642 New Hampshire 5 1,316,470 263,294 7 7 5 1,316,470 263,294 5 1111 New Jersey 31 8,791,894 283,609 33 33 31 8,791,894 283,609 31 3736 New Mexico 7 2,059,179 294,168 9 9 7 2,059,179 294,168 7 133 New York 68 19,378,102 284,972 70 70 69 19,378,102 280,842 69 7510 North Carolina 33 9,535,483 288,954 35 35 34 9,535,483 280,455 34 4048 North Dakota 2 672,591 336,296 4 4 2 672,591 336,296 2 87 Ohio 40 11,536,504 288,413 42 42 41 11,536,504 281,378 41 4728 Oklahoma 13 3,751,351 288,565 15 15 13 3,751,351 288,565 13 1927 Oregon 13 3,831,074 294,698 15 15 14 3,831,074 273,648 14 206 Pennsylvania 44 12,702,379 288,690 46 46 45 12,702,379 282,275 45 5143 Rhode Island 4 1,052,567 263,142 6 6 4 1,052,567 263,142 4 1024 South Carolina 16 4,625,364 289,085 18 18 16 4,625,364 289,085 16 2246 South Dakota 3 814,180 271,393 5 5 3 814,180 271,393 3 917 Tennessee 22 6,346,105 288,459 24 24 23 6,346,105 275,918 23 292 Texas 88 25,145,561 285,745 90 90 89 25,145,561 282,534 89 9534 Utah 10 2,763,885 276,389 12 12 10 2,763,885 276,389 10 1649 Vermont 2 625,741 312,871 4 4 2 625,741 312,871 2 812 Virginia 28 8,001,024 285,751 30 30 28 8,001,024 285,751 28 3413 Washington 24 6,724,540 280,189 26 26 24 6,724,540 280,189 24 3050 Washington DC ------------ 601,723 ----------------- 3 3 2 601,723 300,862 8 837 West Virginia 7 1,852,994 264,713 9 9 7 1,852,994 264,713 7 1320 Wisconsin 20 5,686,986 284,349 22 22 20 5,686,986 284,349 20 2651 Wyoming 2 563,626 281,813 4 4 2 563,626 281,813 2 8

U.S.A. 1,080 308,745,538 285,152 1,180 1,180 1,097 308,745,538 281,445 1,103 1,403

Raymond !29

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