Should the Median Voter Be Sovereign?

About the State of Europe’s Constitutional Democracies

Very short summary: In this essay, I discuss various recent controversial cases in Europe where political institutions have been criticized for making “undemocratic” decisions (Romania, Germany, France) to ask under which conditions the median voter’s views should rule.

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The annulment of presidential elections in Romania, the conviction of Marine Le Pen with a ban to compete for elections, and the classification of Germany’s populist party AfD as a “right-wing extremist” organization by the German intelligence agency, are three recent political events that have triggered controversies regarding the state of European liberal democracy. National-populists in Europe and North America use them as illustrations of their claim that Europe has turned its back on democratic values, echoing J.D. Vance’s infamous Munich speech. They also created discomfort among the broad camp of “liberal democrats.” Liberal democrats are torn between acknowledging that, in each case, there may be valid constitutional and legal reasons that support the decisions made by the state or judicial authorities, and the awareness that these decisions may only strengthen populists.

Forty years ago, or maybe even less than twenty years ago, there would have been no issue at all. The views of AfD and Le Pen’s Rassemblement National, and even more the fantasies of the Romanian candidate Calin Georgescu (who arrived first in the canceled elections but has been forbidden to apply to the new elections) were at the fringe of the political landscape. They would never have had a decent chance to make a significant score at presidential or parliamentary elections. Neither the classification of a party like AfD as right-wing extremist nor the conviction of the leader of the French far-right would have received more attention than a few headlines in newspapers. But times have changed and it now happens that national-populist views are highly popular among European electorate. Hence the following question: does this increased popularity matter when we reflect on the legitimacy of the decisions taken by state and judicial authorities in the three cases mentioned above?

To start, it’s worth first highlighting what makes these cases dissimilar. Le Pen’s conviction (which is not definitive, as she and her party have appealed) results from a judicial decision. In France, as in any constitutional democracy, judges and courts are independent. Some critics have suspected that in this specific case, the judge’s decision was politically motivated. The burdens of proof fall on them, and, of course, this claim is impossible to establish. The decision to ban Le Pen from competing for future elections and to make it immediately effective (the real point of contention) is in conformity with the law. Where appreciations can differ is if the decision was appropriately motivated, an issue that the appeal court will have to take a stance on next year. In any case, behind this point of contention, there are solid facts. Le Pen and her party have very likely organized the systemic deflection of European funds (for an amount above 4 million euros). The infraction is well-established, at least presumably —again, the appeal court will have to confirm the decision.

The AfD case is completely different, and I’m also far less informed about the context and specifics. In a country with a recent history such as Germany, we can easily understand the acute sensitivity to the dangers of views that promote xenophobia, that target parts of the population and label them “criminals,” and that overtly treat persons differently depending on their origins. The decision of the German intelligence agency (which is not fully independent, as it is under the authority of the German Ministry of interior) is based on the claim that AfD’s ideology is contrary to Germany’s constitutional principles. Crucially, it is a ban on the party but entails reinforced surveillance of its activity. The AfD can (and will) challenge the decision in courts. The point is that there is a constitutional question: are the views of AfD contrary to Germany’s constitutional principles?

Last, the Romanian case is also very different from the German and French ones. The Constitutional Court has annulled the results of the first round of the presidential elections following what has been presented as “evidence” of foreign interference. Again, I lack any particular expertise, but from what can be read, it seems that this evidence has actually been lacking. Contrary to France and Germany, Romania is a young and fragile constitutional democracy — it was indeed classified in 2024 as a “hybrid regime” according to The Economist’s Democracy Index and as “electoral democracy” with a significant worsening of its “liberal democracy” score as measured by V-DEM:

Source

The results of the first round of the new elections, organized a few days ago, tend to confirm that, besides possible foreign interference, the population no longer trusts mainstream parties and political elites, which are largely viewed as “corrupted.”

The bottom line is that, while it might be tempting to merge these three cases and use them to claim that European democracies are sick, doing so betrays a lack of understanding of the particularities of each situation. Romania’s case is one of a democracy that has yet to be fully settled and that has never been “liberal” or “constitutional” properly speaking. As for Germany and France, they rather illustrate what is happening when the constitutional/liberal “antibodies” of the rule of law enter into action to preserve the democratic form of life, i.e., the values and norms without which elections become the subject of the possible kinds of abuses that one can imagine. Again, this is not to say that the decisions that have been made are the correct ones from any relevant perspective. But that’s the thing: there’s no algorithm that says automatically when one’s acts or ideas trespass the constitutional limits of what is permissible. We have defined rules, but these rules cannot be disassociated from practices. To make a Wittgensteinian paraphrase, “meaning (of rules) is use.”

This finally leads me to the question asked in the title of this essay: Should the median voter be sovereign? Reacting to the AfD case, Tyler Cowen recently wrote

Although I do not like the AfD, there is an alternative solution here. Other German parties, including the ruling coalition, could move closer to median voter sentiment on migration issues. (Whether or not one agrees with the median voter stance, it is, believe it or not, an alternative democratic strategy.) Heaven forbid!

Indeed, moving closer to the median voter is “an alternative democratic strategy.” But is it a legitimate move? Even if we assume that democratic mechanisms tend to make political platforms converge toward the preferences of the median voter (an assumption that we should not take for granted, especially when the political landscape is changing), that doesn’t entail that these preferences ought to be realized in social choices. The significance of the median voter’s preferences is always relative to a political and moral background that delineates what is permissible and forbidden. We all agree that if the median voter were to judge that it would be best to annihilate a minority, that would not make the corresponding act permissible. The immigration example is less extreme but reflects the same consideration: if the median voter wants to deport all illegal immigrants in a foreign country, should we consent? If the median voter wants to close the borders in total disregard of the negative impacts on would-be immigrants, but also on the local population, should we consent?

“Germania,” Philippe Veit (1848)

The median voter’s views gain a particular meaning because they reflect the dominant opinion in the context where we all agree on what kind of reasons, values, and facts can permissibly ground this opinion. Absent this context, the views of the median voter have no particular democratic significance. They are facts, but facts without normative meaning. Now, it is clear that over the long run, a society is likely to be governed by its majority opinion.[1] This is just a question of numbers and of the sheer force that comes with them. And we do want that collective decisions are ultimately made based on what the majority of people think (not necessarily a simple majority, though). However, people’s preferences do not fall from the sky. They are the product of complex mechanisms of cultural evolution and social dynamics channeled by prevailing economic, social, and political institutions —including the laws and moral norms that, at any moment, determine what is a “permissible view.”

The genuine democratic strategy is not to automatically give people what they want. It is to think of the means to preserve the constitutional framework so that we will be able to continue to speak our minds and influence collective decisions without undermining the conditions that make this possible, and while being able to pursue our ends and projects without deferring too much to others. The decisions that have been made in Germany and in France must be interpreted as being part of this strategy. Whether they were the right ones in those specific contexts is open to debate. There is also a genuine risk that they backfire. But they are not undemocratic per se.

As a last remark, all this is not to say that there aren’t serious problems with European democracies. The political scientist Yascha Mounk has recently written an edifying essay describing how European countries, especially Germany, are curbing free speech. This anecdotal evidence is reflected in quantitative trends, as witnessed by the various democracy “scores” such as V-DEM or The Economist’s democracy index. The problem is that it then becomes difficult to distinguish between legitimate regulation of political behavior to preserve the constitutional framework and plain violations of political and civil liberties. This creates a general atmosphere of suspicion where the intentions of rule enforcers are not transparent, thus undermining the needed trust in the institutions to preserve the constitutional framework. The risk is to enter into a vicious circle. As the foundations of constitutional democracies crumble, polarized and adversarial views are increasingly expressed. This increases the pressure to enhance the policing of views that are suspected to be destabilizing, feeding the suspicion toward the institutions and undermining the legitimacy of the political regime. Liberal democracies on both sides of the Atlantic are on the edge of falling into this trap.

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[1] In some cases, this can take time, such as when the majority opinion is disclosed because people fear to express their genuine views. But even in those cases, the majority comes to decide at some point. See Timur Kuran, Private Truths, Public Lies: The Social Consequences of Preference Falsification (Cambridge, Mass.: Harvard University Press, 1995).