Foreigners, citizens and the tyrannical edges of the 'Vox Populi' : empirical and normative evidence from Switzerland

Abstract

The debate on the tyrannical consequences of direct democratic rule on minority rights is almost as old as democracy itself. Yet, it has regained considerable vigour in recent years, as the ‘plebiscitarian turn’ widely observed in Europe and North America has shaken to the core the very foundations of representative democracy as laid out since 1945. The article examines the issue in the case of immigrant minorities in Switzerland, that concentrates about half of referendums worldwide. It proceeds in two steps. First, based on an original dataset compiling all forty-three referendums and popular initiatives on migration-related issues held in Switzerland at federal level between 1848 and 2017, it examines through a rational-choice institutionalist lens whether direct democratic instruments have contributed to 'expand' or 'restrict' the rights of immigrants. The results point to a significant ‘tyrannical’ effect of direct democracy, both at the ‘agenda-setting’ and ‘decision-making’ stages. The second section takes a normative turn and critically discusses the democratic legitimacy of a political franchise that excludes the very population that is most intimately and immediately coerced by electoral outcomes. It proposes a ‘realist’ reform of the referendum procedure based on the ‘principle of empathy’, the aim of which is to complement the norm of national self-determination underlying the national franchise in Switzerland as well as in most democracies with an objective examination of and due respect for the ‘rights of others’.