It isn’t shocking that the state, with its huge and increasing surveillance and police energy, requires a mythology, actually. In democratic states and even in “constitutional democracies” which can be extra democratic than constitutional, a pillar of this mythology is “the desire of the folks.” It was simply invoked by the chief trial counsel of the State Bar of California, which is attempting to revoke the license of John Eastman, a former lawyer of president Donald Trump (“California Bar Seeks to Revoke Trump Adviser John Eastman’s Regulation License,” Wall Road Journal, January 26, 2023):
Mr. Cardona stated in an announcement that Mr. Eastman violated his duties to the U.S. Structure “in furtherance of an try and usurp the desire of the American folks and overturn election outcomes for the very best workplace within the land—an egregious and unprecedented assault on our democracy—for which he have to be held accountable.”
The non-existence of the “will of the folks” could be apprehended in numerous methods (see my Regulation evaluate of William Riker’s Liberalism Towards Populism, in addition to my Impartial Evaluate article “The Impossibility of Populism”). From Condorcet, a Nineteenth-century mathematician and thinker, to Nobel economist Kenneth Arrow within the twentieth century, an extended line of thinkers have found that almost all can attain logically incoherent choices, even when every voter stays logically constant. Every particular person has his personal preferences, circumstances, and can. Particular person preferences and values can’t be “aggregated” right into a type of superindividual. Extra intuitively, it appears apparent {that a} victory with 51% of the favored vote, as Joe Biden achieved in 2020 (Donald Trump received with 46% in 2016), solely implies that, at greatest, the consequence represents the desire of half the folks.
Furthermore, totally different democratic voting strategies can obtain broadly totally different outcomes. Decoding the work of Donald Saari (“Tens of millions of Election Outcomes from a Single Profile,” Social Alternative and Welfare, 1992), Gordon Tullock wrote (in Authorities Failure: A Primer in Public Alternative, Cato Institute, 2002, p. 22):
Many various voting guidelines are used on the earth and every results in a considerably totally different final result. Saari has produced a rigorous mathematical proof that for a given set of voters with unchanged preferences, any final result could be obtained with at the very least one voting methodology.
Classical liberals, particularly within the Anglo-Saxon custom, have been appropriate to see the democratic state not as an expression of the “will of the folks,” however merely as an establishment that might assume some vital features that personal cooperation couldn’t effectively fulfill.
That each Mr. Trump and his political opponents can disguise behind the “will of the folks” solely offers one other affirmation of the mythological nature of the idea.
A complicated or contrarian reader may object that we are able to make sense of the “will of the folks” if we take it as referring to a unanimous social contract à la James Buchanan. Whereas the results of an American election doesn’t per se characterize the “will of the folks,” the argument would go, the constitutional guidelines below which the election is legitimately held might presumably be unanimously agreed to by all of the folks. However a presumption of unanimity and methodological individualism have exact necessities within the context of a classical-liberal social contract. I don’t assume that Buchanan in addition to Gordon Tullock (see their seminal The Calculus of Consent) ever whispered the mythological and loaded expression “the desire of the folks.” Even “the folks” doesn’t exist, besides whether it is taken to imply “the folks as people,” which is what authorized theorist Randy Barnett argues it means within the Declaration of Independence and the Structure (Our Republican Structure: Securing the Liberty and Sovereignty of the Individuals [HarperCollins, 2016]).
