Does a majority decide anyone’s rights in this framework?

No. In the My Vote Forward framework, a popular priority or a widely shared opinion is information about what participants care about; it is not a decision about anyone’s rights, and questions about restricting other people’s fundamental rights are not posed for ranking or opinion. That rule borrows from existing constitutional practice rather than inventing anything. The harder question underneath it, who should have the final word on rights when people disagree, is one that constitutional democracies answer differently and that this framework does not settle.

The objection in its strongest form

The objection comes from two opposite directions, and both deserve their strongest form.

The first says that any system which makes majority preferences more visible and more frequent makes rights more vulnerable. James Madison warned in Federalist No. 10 that measures are “too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority”.⁠¹ A tool that publishes what the largest number of participants want, every week, is a tool for building that superior force. Even if the framework never holds a binding vote, its rankings could be used by campaigns to argue that “the people” want a minority’s protections removed.

The second says the opposite: that taking rights questions off the table is itself an exercise of power by whoever decides which questions count as “rights.” On this view, citizens in a democracy reasonably disagree about what rights require, and a framework that refuses to ask them is substituting its own judgment, or a court’s, for theirs. Justice Scalia expressed a version of this concern in his 1996 dissent in Romer v. Evans, writing that “I think it no business of the courts (as opposed to the political branches) to take sides in this culture war”.⁠² A participation framework that quietly decides which subjects are too sensitive to ask about would be taking sides in the same way.

Why the objection matters

The objection matters because My Vote Forward’s purpose is to make public priorities more visible between elections. Visibility is not neutral. A published ranking can be quoted as a mandate even when the framework says it is not one. And a framework that excludes certain questions must be able to say, in public, why those questions and not others, or it will look like an editorial line disguised as a safety rule.

Defined terms

• Fundamental right: a right that a constitution or binding treaty protects from ordinary political decisions. Which rights count, and how far they extend, varies by jurisdiction.
• Majority faction: Madison’s term for a majority “united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens”.⁠¹
• Judicial review: the power of courts to set aside laws, including laws adopted by voters, that conflict with a constitution.
• Ballot measure: a proposal decided directly by voters. It is valid only within the legal powers of the jurisdiction that holds it. See jurisdictions.
• Aggregate: a combined result, such as a ranking of subjects. In this framework an aggregate describes participants and authorizes nothing.

Evidence

The constitutional principle, United States. In 1943 the Supreme Court held in West Virginia State Board of Education v. Barnette that schoolchildren could not be compelled to salute the flag. The opinion states that fundamental rights “may not be submitted to vote; they depend on the outcome of no elections”.⁠³ The surrounding passage explains the reasoning: the Bill of Rights was meant to withdraw certain subjects from political controversy and place them beyond the reach of majorities and officials, as legal principles applied by courts.⁠³

A voter-adopted measure struck down. In Romer v. Evans (1996), the Court considered Colorado’s Amendment 2, which the opinion describes as “adopted in a 1992 statewide referendum”.⁠² The amendment barred state and local government action protecting gay, lesbian, and bisexual people from discrimination. The Court held, 6 to 3, that “Amendment 2 violates the Equal Protection Clause,” concluding that “A State cannot so deem a class of persons a stranger to its laws”.⁠² The dissent described the measure as “a modest attempt by seemingly tolerant Coloradans to preserve traditional sexual mores”.⁠² The case shows both the principle in operation and the depth of disagreement about it.

A direct democracy with limits, Switzerland. Switzerland gives citizens formal powers that most countries do not: a federal popular initiative to amend the Constitution needs 100,000 signatures collected within 18 months, and an optional referendum on a new law needs 50,000 signatures within 100 days.⁠⁴ Even there, popular initiatives can be declared invalid. A historian at the Swiss Diplomatic Documents research center records that, for the first time, the Federal Council sought to declare a popular initiative invalid because it was incompatible with Switzerland’s commitments under international law, and that parliament followed that recommendation in March 1996; the initiative concerned asylum policy.⁠⁵

How comparable systems have handled it

Comparable systems use three main tools. Courts review voter-adopted measures against a constitution, as in Romer.⁠² Legislatures or officials screen initiatives before they reach voters, as the Swiss parliament did in 1996.⁠⁵ And some systems put certain matters beyond ordinary amendment altogether. Each tool has its own critics: court review is criticized as undemocratic, pre-screening as political gatekeeping, and entrenchment as binding future generations.

Deliberative bodies take a fourth approach: they change who is asked, not what may be asked. Ireland’s 2016 to 2018 Citizens’ Assembly considered the Eighth Amendment of the Constitution, a rights question on which Irish citizens were deeply divided, through a randomly selected body whose recommendations went to the Oireachtas for debate.⁠⁶ The topic was set by parliament, not excluded.

Competing interpretations

One interpretation holds that rights are pre-political limits and that any participation system must fence them off, as Barnette describes.⁠³ On this view, the framework’s rule against posing rights-restricting questions is the minimum responsible position.

A second interpretation, in the line of Scalia’s Romer dissent,⁠² holds that disagreements about rights are themselves political questions that citizens may legitimately decide, and that removing them from democratic discussion transfers power to judges or experts. On this view, a participation framework should allow discussion of contested rights questions while being clear that its results bind no one.

A third interpretation, reflected in Swiss and Irish practice,⁠^5,6 holds that the question is about process: rights questions can be put to the public through well-designed procedures with legal limits and review, and the danger lies in poorly designed procedures, not in public involvement as such.

What the framework answers

My Vote Forward’s design rules are:

• A popular priority is information, not a mandate. No aggregate is presented as a policy preference, a decision, or the will of a district (see representation).
• Questions about restricting other people’s fundamental rights are not posed for ranking or opinion (see representation).
• A ballot item in any future official setting is valid only within the legal powers of the jurisdiction, and courts and legislatures keep their existing roles (see jurisdictions).
• Subjects such as “government and rights” can be ranked as areas of concern. Ranking a subject as important is not a vote on any person’s rights.

Where the objection still wins

Both versions of the objection keep real force. The first wins in practice: the framework cannot control how others quote its rankings, and a campaign can still present a participant ranking as public demand. The second wins in principle: the rule against posing rights-restricting questions requires someone to decide what counts as one, and today that someone is the project. There is no independent body that reviews those calls, and the line between “discussing a contested rights question” and “asking people to restrict others’ rights” is not always clear.

Unresolved questions

• Who should decide, in a real deployment, that a proposed question would restrict others’ fundamental rights?
• Should contested rights questions be discussed through a deliberative format rather than ranked or polled?
• How should a future system flag a ballot measure that may conflict with protected rights without appearing to take a side?
• Does excluding a question protect minorities or deny them a forum to make their own case?

Related

• Representation
• Jurisdictions
• Proposals
• Can an institution ignore a result?
• Who chooses the ten?
• Hard questions