law enacted by a legislature is likely to be
substantially representative of the
preferences and values of voters.
However, as time passes a problem can arise because values can change.
Consequently, in later years, the values incorporated in the statute may not be
as relevant as they were when the statute was passed. This detracts from the
legitimacy of any law which is a based on these changed values. It also
undermines the legitimacy of a court interpreting these laws by reference to
their original policy. (Indeed, this is the basis for the argument that a court
should interpret a statute by reference to contemporary values rather than
original legislative policy.)
923
The obvious answer to this question of changing values is to make periodic
reviews of legislation. How this can be done is discussed in the context of
causation.
924
Third, it is possible to offset some of the formal limitations of representative
democracy by combining it with some forms of participatory democracy.
First, in a general sense the public participates in the democratic process when
it expresses its views on legislation at public meetings and in the media. There
is, however, a problem in that those who can take advantage of these
opportunities tend to be the articulate and the financially comfortable whose
views tend to be represented any way. Second, a government can actively
consult with and seek input from members of the public who will be directly
affected by proposed legislation. If done properly this will ensure that the
government is aware of how people believe that proposed legislation will affect
them and how they view the legislation.
Agency
The right of citizens to bear arms is just one guarantee against arbitrary
government, one more safeguard against the tyranny which now appears
remote in America, but which historically has proved to be always
possible.
925
When representatives vote in the legislature, there is no realistic mechanism
that can ensure that they act in the interests of their constituents. Consequently
they are free to act in their own interests. This is
one of the agency costs of
having representatives make laws on behalf of the citizen rather than operate a
direct democracy where citizens themselves make the laws.
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923
Chapter 22 Social Choice: Interpreting Law
924
Chapters 13-15
925
Senator Hubert H. Humphrey (Minnesota)
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