Lex Majoris

The first principle of republicanism is that the lex majoris partis is the fundamental law of every society of individuals of equal rights; to consider the will of the society enounced by the majority of a single vote, as sacred as if unanimous, is the first of all lessons in importance, yet the last which is thoroughly learnt. This law once disregarded, there is no other but that of force, which ends necessarily in military despotism.
—Thomas Jefferson. Letter to Baron von Humboldt. 13 June 1817.

Since Hillary Clinton lost the 2016 American presidential election, many of her supporters have been quick to cry “racism” on the part of voters for her opponent, Donald Trump. According to Vox’s Jenée Desmond-Harris, for instance, Trump won the election “not despite but because he expressed unfiltered disdain toward racial and religious minorities in the country.” Aside from being the easier interpretation, because it allows Clinton voters to ignore the role their own economic choices may have played in the broad support Trump received throughout the country, such accusations are counterproductive even on their own terms because—only seemingly paradoxically—they reinforce many of the supports racism still receives in the United States: above all, because they weaken the intellectual argument for a national direct election for the presidency. By shouting “racism,” in other words, Hillary Clinton’s supporters may end up helping to continue racism’s institutional support.

That institutional support begins with the method by which Americans elect their president: the Electoral College—a method that, as many have noted, is not used in any other industrialized democracy. Although many scholars and others have advanced arguments for the existence of the college through the centuries, most of these “explanations” are, in fact, intellectually incoherent: while the most common of the traditional “explanations” concerns the differences between the “large states” and the “small,” for instance, in the actual United States—as James Madison, known as the “Father of the Constitution,” noted at the time—there had not then, and has not ever been since, a situation in American history that involved a conflict between larger-population and smaller-population states. Meanwhile, the other “explanations” for the Electoral College do not even rise to this level of incoherence.

In reality there is only one explanation for the existence of the college, and that explanation has been most forcefully and clearly made by law professor Paul Finkelman, now serving as a Senior Fellow at the University of Pennsylvania after spending much of his career at obscure law schools like the University of Tulsa College of Law, the Cleveland-Marshall College of Law, and the Albany Law School. As Finkelman has been arguing for decades (his first papers on the subject were written in the 1980s), the Electoral College was originally invented by the delegates to the Constitutional Convention of 1787 in order to protect slavery. That such was the purpose of the College can be known, most obviously, because the delegates to the convention said so.

When the means of electing a president were first debated, it’s important to remember that the convention had already decided, for the purposes of representation in the newly-created House of Representatives, to count black slaves by the means of the infamous three-fifths ratio. That ratio, in turn, had its effect when discussing the means of electing a president: delegates like James Madison argued, as Finkelman notes, that the existence of such a college—whose composition would be based on each state’s representation in the House of Representatives—would “guarantee that the nonvoting slaves could nevertheless influence the presidential election.” Or as Hugh Williamson, a delegate from North Carolina, observed during the convention, if American presidents were elected by direct national vote the South would be shut out of electing a national executive because “her slaves will have no suffrage”—that is, because in a direct vote all that would matter is the number of voters, the Southern states would lose the advantage the three-fifths ratio gave them in the House. Hence, the existence of the Electoral College is directly tied to the prior decision to grant Southern slave states an advantage in Congress, and so the Electoral College is another in a string of institutional decisions made by convention delegates to protect domestic slavery.

Yet, assuming that Finkelman’s case for the racism of the Electoral College is true, how can decrying the racism of the American voter somehow inflict harm on the case for abolishing the Electoral College? The answer goes back to the very justifications of, not only presidential elections, but elections in general—the gradual discovery, during the eighteenth century Enlightenment, of what is today known as the Law of Large Numbers.

Putting the law in capital letters, I admit, tends to mystify it, but anyone who buys insurance already understands the substance of the concept. As New Yorker writer Malcolm Gladwell once explained insurance, “the safest and most efficient way to provide insurance” is “to spread the costs and risks of benefits over the biggest and most diverse group possible.” In other words, the more people participating in an insurance plan, the greater the possibility that the plan’s members will be protected. The Law of Large Numbers explains why that is.

That reason is the same as the reason that, as Peter Bernstein remarks in Against the Gods: The Remarkable Story of Risk, if we toss a coin enough times that “will correspondingly increase the probability that the ratio of heads thrown to total throws” will decrease. Or, the reason that—as physicist Leonard Mlodinow has pointed out—in order really to tell which baseball team is better than another a World Series would have to be at least 23 games long (if one team were much better than the other), and possibly as long as 269 games (between two closely-matched opponents). Only by playing so many games can random chance be confidently excluded: as Carl Bialik of FiveThirtyEight once pointed out, usually “in sports, the longer the contest, the greater the chance that the favorite prevails.” Or, as Israeli psychologists Daniel Kahneman and Amos Tversky put the point in 1971, “the law of large numbers guarantees that very large samples will indeed be representative”: it’s what scientists rely upon to know that, if they have performed enough experiments or poured over enough data, they know enough to exclude idiosyncratic results. The Law of Large Numbers asserts, in short, that the more times we repeat something, the closer we will approach its true value.

It’s for just that reason that many have noted the connection between science and democratic government: “Science and democracy are powerful partners,” as the website for the Union of Concerned Scientists has put it. What makes these two objects such “powerful” partners is that the Law of Large Numbers is what underlies the act of holding elections: as James Surowiecki put the point in his book, The Wisdom of Crowds, the theory of democracy is that “the larger the group, the more reliable its judgment will be.” Just as scientists think that, by replicating an experiment, they can more readily trust in its results, so too does a democratic government implicitly think that, by including more people in the decision-making process, the government can the more readily arrive at the “correct” solution: as James Madison put it in The Federalist No. 10, if you “take in a greater variety of parties and interests,” then “you make it less probable that a majority of the whole will have a common motive for invading the rights of other citizens.” Without such a belief, after all, there would be no reason not to trust, say, a ruling caste to make decisions for society—or even a single, perhaps orange-toned, individual. Without some concept of the Law of Large Numbers—some belief that increasing the numbers of trials, or increasing the number of inputs, will make for better results—there is no reason for democratic government at all.

That’s why, when people criticize the Electoral College, they are implicitly invoking the Law of Large Numbers. The Electoral College divides the pool of American voters into fifty smaller pools, but a national popular vote would collect all Americans into a single lump—a point that some defenders of the College sometimes seek to make into a virtue, instead of the vice it is. In the wake of the 2000 election, for example, Senator Mitch McConnell wrote that the “Electoral College served to center the post-election battles in Florida,” preventing the “vote recounts and court battles in nearly every state of the Union” that, McConnell assures us, would have occurred in the college’s absence. But as Timothy Noah pointed out in The New Republic in 2012, what McConnell’s argument “fails to realize is that when you’re assembling one big count rather than a lot of little ones it’s a lot less clear what’s to be gained from rigging any of the little ones.” If what matters is the popular vote, what happens in any one location doesn’t matter so much; hence, stealing votes in downstate Illinois won’t allow you to steal the entire state—just as, with enough samples or experiments run, the fact that the lab assistant was drowsy at the time she recorded one set of results won’t matter so much. Or why deliberately losing a single game in July hardly matters so much as tanking a game of the World Series.

Put in such a way, it’s hard to see how anyone without a vested stake in the construction of the present system could defend the Electoral College—yet, as I suspect we are about to see, the very people now ascribing Donald Trump’s victory to the racism of the American voter will soon be doing just that. The reason will be precisely the same reason that such advocates want to blame racism, rather than the ongoing thievery of economic elites, for the rejection of Clinton: because racism is a “cultural” phenomenon, and most left-wing critics of the United States now obtain credentials in “cultural,” rather than scientific, disciplines.

If, in other words, Donald Trump’s victory was due to a complex series of renegotiations of the global contract between capital and labor, then that would require experts in economic and other, similar, disciplines to explain it; if his victory was due to racism, however—racism being considered a cultural phenomenon—then that will call forth experts in “cultural” fields. Because those with “liberal” or “leftist” political leanings now tend to gather in “cultural” fields, those with those political leanings will (indeed, must) now attempt to shift the battleground towards their areas of expertise. That shift, I would wager, will in turn lead those who argue for “cultural” explanations for the rise of Trump against arguments for the elimination of the Electoral College.

The reason is not difficult to understand: it isn’t too much to say, in fact, that one way to define the study of the humanities is to say it comprises the disciplines that largely ignore, or even oppose, the Law of Large Numbers both as a practical matter and as a philosophic one. As literary scholar Franco Moretti, now of Stanford, observed in his Atlas of the European Novel, 1800-1900, just as “silver fork novels”—a genre published in England between the 1820s and the 1840s—do not “show ‘London,’ but only a small, monochrome portion of it,” so too does the average student of literature not really study her ostensible subject matter. “I work on west European narrative between 1790 and 1930, and already feel like a charlatan outside of Britain and France,” Moretti confesses in an essay entitled “Distant Reading”—and even then, he only works “on its canonical fraction, which is not even 1 percent of published literature.” As Joshua Rothman put the point in a New Yorker profile of Moretti a few years ago, Moretti instead insists that “if you really want to understand literature, you can’t just read a few books or poems over and over,” but instead “you have to work with hundreds or even thousands of texts at a time”—that is, he insists on the significance of the Law of Large Numbers in his field, an insistence whose very novelty demonstrates how literary study is a field that has historically resisted precisely that recognition.

In order to proceed, in other words, disciplines like literary study or art history—or even history itself—must argue for the representativeness of a given body of work: usually termed, at least in literary study, “the Canon.” Such disciplines are already, simply by their very nature, committed to the idea that it is not necessary to read all of what Moretti says is the “thirty thousand nineteenth-century British novels out there” in order to arrive at conclusions about the nineteenth-century British novel: in the first place, “no one really knows” how many there really are (there could easily be twice as many), and in the second “no one has read them [all], [and] no one ever will.” In order to get off the ground, such disciplines must necessarily deny the Law of Large Numbers: as Moretti says, “you invest so much in individual texts only if you think that very few of them really matter”—a belief with an obvious political corollary. Rejection of the Law of Large Numbers is thusly, as Moretti also observes, “an unconscious and invisible premiss” for most who study such fields—which is to say that although students of the humanities often make claims for the political utility of their work, they sometimes forget that the enabling presuppositions of their fields are inherently those of the pre-Enlightenment ancien régime.

Perhaps that’s why—as Joe Pinsker observed in a fascinating, but short, article for The Atlantic several years ago—studies of college students find that those “from lower-income families tend toward ‘useful’ majors, such as computer science, math, and physics,” while students “whose parents make more money flock to history, English, and the performing arts”: the baseline assumptions of those disciplines are, no matter the particular predilections of a given instructor, essentially aristocratic, not democratic. To put it most baldly, the disciplines of the humanities must reject the premise of the Law of Large Numbers, which says that as more examples are added, the closer we approach to the truth—a point that can be directly witnessed when, for instance, English professor Michael Bérubé of Pennsylvania State University observes that the “humanists at [his] end of the [academic] hallway roundly dismissed” Harvard biologist E.O. Wilson’s book, Consilience: The Unity of Knowledge for arguing that “all human knowledge can and eventually will be unified under the rubric of the natural sciences.” Rejecting the Law of Large Numbers is foundational to the very operation of the humanities: without making that rejection, they cannot exist.

In recent decades, of course, presumably Franco Moretti has not been the only professor of the humanities to realize that their disciplines stood on a collision course with the Law of Large Numbers—it may perhaps explain why disciplines like literature and others have, for years, been actively recruiting among members of minority groups. The institutional motivations of such hiring, in other words, ought to be readily apparent: by making such hires, departments of the humanities could insulate themselves from charges from the political left—while at the same time continuing the practices that, without such cover, might have appeared increasingly anachronistic in a democratic age. Minority hiring, that is, may not be so politically “progressive” as its defenders sometimes argue: it may, in fact, have prevented the intellectual reforms within the humanities urged by people like Franco Moretti for a generation or more. Of course, by joining such departments, members of minority groups also may have, consciously or not, tied their own fortunes to a philosophic rejection of concepts like the Law of Large Numbers—as African-American sportswriter Michael Wilbon, of ESPN fame, wrote this past May, black people supposedly have some kind of allergy to statistical analysis: “in ‘BlackWorld,’” Wilbon solemnly intoned, “never is heard an advanced analytical word.” I suspect then that many who claim to be on the political left will soon come out to defend the Electoral College. If that happens, then in one last cruel historical irony the final defenders of American slavery may end up being precisely those slavery meant to oppress.

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Please let me know what you think! Also, if you are having trouble with posting a comment, please feel free to email me personally at djmedinah@yahoo.com. Thanks for reading!

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