By Dan McLaughlin
Wednesday, April 21, 2021
National Review has lately had a lively debate
about democracy — what it is good for, what are its limits, and how that should
shape its structure. As usual, that debate involves some different perspectives
among my colleagues, as well as a bunch of left-wing critics willfully
misreading those perspectives and ascribing them to National Review as
a single, monolithic, permanent institutional point of view. Let me step back
and ask the fundamental question: What is democracy for?
The American Way
There are four basic pillars to the American experiment:
·
Republicanism: government without a monarch.
·
Democracy: government chosen by, and accountable
to, the people.
·
Liberalism: government that respects core
individual liberties such as freedom of religion, free speech, property rights,
and due process of law.
·
Constitutionalism: government whose powers are
constrained by a written document setting forth the rules, which the
government cannot easily change at will.
All four pillars are equally essential. The United States
was the first nation on earth with a government that was simultaneously
republican, democratic, liberal, and constitutional. For roughly the first 75 years of its existence, it was the only one. Yet,
historical example as far back as the democracy of ancient Athens and the
republic of ancient Rome showed that each of these elements tended toward
self-destruction. Combining all four was a bold act. Through experience,
Americans from the Founding forward relied on two more related elements to
secure the system:
·
Separation of powers: the division of government
both horizontally into different branches, and vertically into federal, state,
and local governments each accountable to different electorates, such
that Americans who are in the majority in some electorates may
simultaneously be in the minority in others.
·
Deliberation: a variety of structures —
including separation of powers and a written constitution — designed to slow
down popular democratic majorities from trampling all the other
elements.
The earliest Americans did not set out to found a
democracy, yet they continually found that self-government protected their
liberties better than anything else. Virginia’s General Assembly dates to 1619.
The Pilgrims came to Massachusetts seeking one limited form of liberalism: They
wanted religious liberty, but for a religious community, not individuals. They
signed a constitution of sorts, the Mayflower Compact, aboard their ship before
they even established permanent homes on land. Its implicit assumption was that
the “body politick” they were forming drew its legitimacy from the consent of
the governed.
The Declaration of Independence did not declare that the
colonists were rebelling over democracy, but over liberty:
We hold these truths to be
self-evident, that all men are created equal, that they are endowed by their
Creator with certain unalienable Rights, that among these are Life, Liberty and
the pursuit of Happiness. –That to secure these rights, Governments are
instituted among Men, deriving their just powers from the consent of the
governed, –That whenever any Form of Government becomes destructive of these
ends, it is the Right of the People to alter or to abolish it, and to institute
new Government, laying its foundation on such principles and organizing its
powers in such form, as to them shall seem most likely to effect their Safety
and Happiness.
The colonists were rebelling against a government that
was not republican or constitutional. The British government was in some ways
democratic, but its Parliament was elected through a very narrow suffrage and
did not even pretend to be composed of districts of equivalent population, and
its king was then locked in his own battle to assert more monarchical
control over Parliament. What mattered the most to the colonists was that
Britain’s government was liberal at home, yet it violated their liberty.
Yet, from the beginning, not only did the Declaration
emphasize that the legitimacy of government derives “from the consent of the
governed,” it also listed among its grievances against King George III his
offenses against representative government, which the Continental Congress saw
as dangerous both to liberty and to a right “inestimable to them and formidable
to tyrants only”:
He has refused to pass other Laws
for the accommodation of large districts of people, unless those people would
relinquish the right of Representation in the Legislature, a right inestimable
to them and formidable to tyrants only.
He has called together legislative
bodies at places unusual, uncomfortable, and distant from the depository of
their public Records, for the sole purpose of fatiguing them into compliance
with his measures.
He has dissolved Representative
Houses repeatedly, for opposing with manly firmness his invasions on the rights
of the people.
We therefore see in American thinking from the outset a
division between two theories of the value of democracy. One is the instrumental theory:
Government exists to safeguard liberty, and democracy is simply one possible
tool to accomplish that, but we prefer it because it is the most effective of
the available tools. The more the people have a say, the less likely it is that
the government will trample their liberties.
The other is the inherent value of
democracy: that because government is legitimate only where it rests on the
consent of the governed, it is imperative for the governed to have a say. A
monarchy may be legitimate if it is broadly accepted by the people — which has
been true of many monarchies in history — but that is not necessarily so.
Democratic participation strengthens and safeguards the legitimacy of any
government in general, as well as the legitimacy of specific actions taken
through elected representatives. That inherent value could also be seen in
Revolutionary-era slogans about “no taxation without representation.” It also
emerges in the shift from the Articles of Confederation — which declared that
it was the work of “we the undersigned Delegates of the States” and was ratified
by the state legislatures — to the Constitution, a decade later, declaring that
it was forged by “We the People” and was ratified by special conventions in
each state elected to decide on ratification.
The inherent-value theory also accords with a broader
conservative observation that bleeds over into the instrumental case: Democracy
is valuable as such because the more people are involved in any decision, the more the
benefits of collective experience ensure that better decisions will be made.
This is the conservative case for popular sovereignty over government by
unelected experts, judges, and bureaucrats. It is also the conservative case
for free markets of the many over central planning by the few, and for
traditions developed over many generations over the new ideas of one
generation. In that sense, while conservatives clearly do not all agree on why
or how to value democracy, it is broadly the case that American conservatives
are more democratic in their thinking than liberals or
progressives, by virtue of placing more value on free markets and tradition and
less value on the judgments of experts and administrators and on the moral
intuition of jurists.
The two strains of conservative thinking about democracy
are, in practice, often more complementary than conflicting. People who like
democracy for instrumental reasons will usually be just as pro-democracy as
people who value it as a good in itself. Still, conservatives — at least those
of us who are classically liberal-minded and thus oriented toward individual
liberty — are philosophically inclined to see the two arguments as distinct,
and to see the instrumental case for democracy as the more indispensable of the
two.
Right-democrats and Left-democrats
Liberals and especially progressives, even when
attempting to describe conservative thinking in good faith, tend to
misunderstand this distinction for a variety of reasons. Partly, this is because
they are disinclined to acknowledge that different values may sometimes be in
tension or conflict. To a larger extent, it is because their value system is
more focused on equality than liberty. Democracy is in theory egalitarian,
valuing everyone’s vote equally, so in the abstract, progressives like it. In
practice, however, they tend to prefer that elites have the real power to
override democratic outcomes whenever popular opinion stands in the way of
their vision of equality or impedes institutions that advance progressive
values. Ask yourself, for example: When was the last time a state referendum
passed that advanced some conservative cause and was not immediately challenged
in court from the left?
Free speech and due process of law can be valued by progressives
so long as they are seen as instruments of equality, but because progressives
do not see liberty itself (besides sexual liberty) as having much inherent
value, they are quick to jettison those liberties whenever they can be cast as
obstacles to equality. This is why religious liberty provides such a difficult
case for them: It has no necessary connection to political egalitarianism, so
it is easily shoved aside when it stands in the way of either the
majority’s will or the egalitarian project. The same is, of
course, pervasively true of property rights. Conservatives see property rights
as a bulwark of liberty: A man in his own home can do as he pleases in many
different ways, while a man whose property can be held hostage by the
government will be swifter to surrender his liberties. To progressives, by
contrast, the security of property is problematic precisely for these reasons.
Deliberation and the Vote
In addition to the different theoretical approaches, a
crucial element of the conservative view of democracy, which liberals and
progressives tend to reject, is deliberation. Deliberation is the
idea that the people may be right in the long run, but they are
frequently wrong in the heat of a moment. As Tommy Lee Jones’s character says
in Men in Black, “A person is smart. People are dumb, panicky,
dangerous animals, and you know it.” The goal of a representative republic is
to channel the collective wisdom and life experience of the people without
devolving into a panicky mob. This is the same reason why we prefer juries to
lynch mobs, even when both are composed of the same people, convened for the
same purpose. The Founding Fathers had seen enough of both assemblies and mobs
to know the difference.
A good deal of deliberation is built into how our system
functions before and after the people vote.
Legislation requires the president, a majority of the House, and 60 percent of
the Senate (due to the filibuster) or two-thirds of each house without the
president. Our Constitution protects fundamental rights, but who decides what
is too fundamental to be subjected to the whims of a majority of the people? A
supermajority of the people. And they make that decision through a complex
process that involves both Houses of Congress and three-quarters of the state
legislatures. Replacing the Senate takes six years. Replacing the majority of
the Supreme Court takes decades. In the end, a large and determined majority of
the people always wins — but the system’s many hurdles are designed to make
swift, wrenching changes hard to accomplish. That is more rather than less
democratic, by expanding the window of time in which people are heard.
The progressive position, by contrast, is that there
should be as little deliberation as possible; the system should be stampeded
into action as quickly as possible, and then the “experts” get to decide later
on whether those actions are sufficiently progressive to be given effect.
Because progressivism envisions strong elite-class checks on democratic
decisions, and because those checks are not constrained by any prior
democratically specified written laws, progressives do not worry overmuch about
the quality of democratic inputs in the first instance.
To the extent that progressives do concern themselves
with the quality of democratic decision-making, it is again to urge elite-class
restraints on the information presented to voters. Thus,
Democrat-sponsored legislation seeks to greatly constrict speech to voters;
the Citizens United case, as you may recall, sought to ban a
movie critical of Hillary Clinton from airing during an American election
campaign. In recent years, the progressive campaign to police the information
available to voters has extended to social-media bans and, of late, even
mainstream media outlets denouncing newsletters on Substack.
Thus, the conservative view of voter deliberation is,
again, more rather than less democratic than its progressive counterpart.
Conservatives treat voters as adults, allowing them more information, and giving
more effect to their enactments unless they conflict with something explicitly
adopted by a supermajority. And voters should have the right and even the
freely chosen duty not to vote if they have not paid attention or see no
meaningful choice between the candidates. All that conservatives ask in return
is that voters, too, act as adults: Take the time to register to vote, show up
within a few days of the election, and gather some proof (for most voters, an
easily accessible form of identification used regularly in daily life) that you
are the person who registered.
None of this will, or should, prevent any voter, or class
of voter, or party or faction of voters, from voting. If any group of voters is
most likely to be deterred by bare-minimum requirements for advance preparation
to vote, it is the youngest voters, and being young and immature is a
transitory phase that people outgrow.
Still, my point is not that we should make voting harder
in order to encourage deliberation. It is, to the contrary, that requirements
that exist for other legitimate reasons — the orderly, secure, and fair conduct
of elections and the swift and reliable counting of votes, once cast — should
not be distorted and discarded simply to chase after the momentary
participation of those voters who are least willing or able to exercise the
most minimal forms of planning and organization that we expect to be
characteristic of adulthood.
The deliberate nature of the vote is why we give it such
special and serious power to make laws that bind our neighbors. It is a serious
civic obligation. We should not make it a goal of our society to water that
down.
Missing the Point
Finally, of course, the critics are just silly. Because National
Review and its website have long been a platform for the Right’s internal
debates, it has always had voices who urge a more stringent view of voter
responsibility and protection of individual liberty. Kevin Williamson takes a
decidedly more curmudgeonly and misanthropic view of the voters
than I do and would be fine banning anybody under 30 from voting. Trump’s
election is, in fact, Exhibit A in Kevin’s skepticism of the wisdom of crowds,
not that you could tell this from people such as the Washington Post’s Philip Bump and Slate’s Ben Mathis-Lilley telling readers
who would not know better that Kevin and I have our long-standing views on
democracy just because we are mad that Trump lost. There is a respectable
pedigree for Kevin’s view, if one I do not subscribe to. It has in no sense
ever been a requirement of writing for National Review to
agree with either of us.
Majorities can be wrong, sometimes disastrously so. Our
system of government constrains them for that reason. But it is designed, not
to stop the majority, but just to slow it down so it has time to think things
through. We trust nobody to overrule a majority except for a larger, prior
majority. The rest of the system is simply a series of speed bumps and sobriety
checkpoints. Here, the people rule. All we ask is that they act as if they do.
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