Hyperdemocracy

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Madison would not have enjoyed watching how the "three strikes and you're out" provision wound up in last year's crime bill. The idea first took shape in California, where 18-year-old Kimber Reynolds had been murdered by a career felon. It was electronic from its very inception: the legislation was co- authored by talk-radio host Ray Appleton from Fresno who knew the victim's father and had fielded outraged calls after the killer's lengthy criminal record came to light. As the idea gained ground in California, it spread east. Its popularity was electronically catalyzed -- on talk radio, especially -- and electronically expressed in telephone polls, on the airwaves, by fax. President Clinton, with the support of Congress, complied promptly and cheerfully with the people's will. A push-button referendum would not have worked more effectively.

And as Madison might have guessed, the result was more gratifying viscerally than intellectually. "Three strikes" was notable not only for the shortage of politicians eager to loudly denounce it but also for the shortage of policy analysts who enthusiastically embraced it. While liberals deemed it draconian, many conservatives found it a constitutionally dubious exertion of federal power, as well as a sloppy form of draconianism. The law does nothing to raise the cost of the first two strikes, and meanwhile spends precious money imprisoning men past middle age, after most of them have been pacified by ebbing testosterone, free of charge. Of course, on the positive side, the law does have a catchy title. (How would the crime bill read if baseball allowed each batter five strikes?)

That policy "elites" aren't wild about something does not mean it's a mistake. But whatever the merits, the process that produced "three strikes and you're out" reflects a shift in American governance since the republic's founding -- the growing porousness of the supposedly impregnable buffer around Washington. This was outside-the-Beltway politics, and is typical of our era.

This constant canvassing of public sentiment, one of two basic kinds of hyperdemocracy, is a straightforward outgrowth of information technology. The second basic kind -- the one more specifically linked to gridlock and to the budget deficit -- is a bit more subtle and more pernicious. And like the first one, it ultimately gets back to Madison. In addition to his dread of mass "passions," Madison had a second nightmare about "pure democracy": it "can admit of no cure for the mischiefs of faction."

He was mostly worried about oppressive majority factions. The modern special-interest group was a species unknown to him. Still, he had a fundamental insight that explains the subsequent origin of that species and its growth. The beauty of a large country, he noted, is the damper it places on factionalism. For when people are dispersed far and wide, even if some of them have "a common motive," the distance among them will make it hard for them to organize -- "to discover their own strength and to act in unison with each other." The history of communications technology over the past 200 years is the history of those words becoming less true.