It is not surprising that the state, with its vast and expanding surveillance and police power, requires a mythology, literally. In democratic states and even in “constitutional democracies” that are more democratic than constitutional, a pillar of this mythology is “the will of the people.” It was just invoked by the chief trial counsel of the State Bar of California, which is trying to revoke the license of John Eastman, a former lawyer of president Donald Trump (“California Bar Seeks to Revoke Trump Adviser John Eastman’s Law License,” Wall Street Journal, January 26, 2023):
Mr. Cardona said in a statement that Mr. Eastman violated his duties to the U.S. Constitution “in furtherance of an attempt to usurp the will of the American people and overturn election results for the highest office in the land—an egregious and unprecedented attack on our democracy—for which he must be held accountable.”
The non-existence of the “will of the people” can be apprehended in different ways (see my Regulation review of William Riker’s Liberalism Against Populism, as well as my Independent Review article “The Impossibility of Populism”). From Condorcet, a 19th-century mathematician and philosopher, to Nobel economist Kenneth Arrow in the 20th century, a long line of thinkers have discovered that the majority can reach logically incoherent decisions, even if each voter remains logically consistent. Each individual has his own preferences, circumstances, and will. Individual preferences and values cannot be “aggregated” into a sort of superindividual. More intuitively, it seems obvious that a victory with 51% of the popular vote, as Joe Biden achieved in 2020 (Donald Trump won with 46% in 2016), only means that, at best, the result represents the will of half the people.
Moreover, different democratic voting methods can achieve widely different results. Interpreting the work of Donald Saari (“Millions of Election Outcomes from a Single Profile,” Social Choice and Welfare, 1992), Gordon Tullock wrote (in Government Failure: A Primer in Public Choice, Cato Institute, 2002, p. 22):
Many different voting rules are used in the world and each leads to a somewhat different outcome. Saari has produced a rigorous mathematical proof that for a given set of voters with unchanged preferences, any outcome can be obtained with at least one voting method.
Classical liberals, especially in the Anglo-Saxon tradition, were correct to see the democratic state not as an expression of the “will of the people,” but simply as an institution that could assume some important functions that private cooperation could not efficiently fulfill.
That both Mr. Trump and his political opponents can hide behind the “will of the people” only provides another confirmation of the mythological nature of the concept.
A sophisticated or contrarian reader might object that we can make sense of the “will of the people” if we take it as referring to a unanimous social contract à la Buchanan. While the result of an American election does not per se represent the “will of the people,” the argument would go, the constitutional rules under which the election is legitimately held could presumably be unanimously agreed to by all the people. But a presumption of unanimity and methodological individualism have precise requirements in the context of a classical-liberal social contract. I don’t think that neither James Buchanan nor Gordon Tullock (including in their seminal joint work The Calculus of Consent) ever whispered the mythological and loaded expression “the will of the people.” Even “the people” does not exist, except if it is taken to mean “the people as individuals,” which is what legal theorist Randy Barnett argues it means in the Declaration of Independence and the Constitution (Our Republican Constitution: Securing the Liberty and Sovereignty of the People [HarperCollins, 2016]).
