The Uses and Abuses of ‘Democracy’

By Kevin D. Williamson

Tuesday, June 28, 2022

 

Thanks to five decades’ worth of work by legal reformers and pro-life activists, the Supreme Court has taken the purportedly radical step of deciding that, henceforth, abortion laws will be made by lawmakers in their legislatures, rather than by judges in their chambers. That return to democracy has, of course, been lamented as announcing a “crisis of our democracy” as well as heralding our “declining democracy,” according to Representative Alexandria Ocasio-Cortez. That assault on democracy — a very, very weird “assault on democracy” that consists of asking the people to vote on a contested political issue through their elected representatives — makes of these United States a “cautionary tale,” according to the “analysts” over at the Washington Post, the sometimes daft pages of which offer a helpful reminder that the first word in analyst is anal.

 

What does it actually mean, this “democracy” of which we perpetually speak?

 

For progressives, “democracy” is a very plastic word that means, “what we call it when we get what we want.” Examples: The Supreme Court overrules state abortion laws on an obviously pretextual and obviously specious constitutional claim and overrules the democratic outcome in favor of the private judgment of a half-dozen unaccountable law professors? That’s democracy! At least according to Democrats. But when the Supreme Court later corrects itself and returns the question to the democratic institutions — to the people and their state legislatures? That, in case you hadn’t noticed, is the end of democracy as we know it. What about using employment as an instrument of social coercion to silence people with unpopular political opinions? Workplace democracy, of course. What if a business owner decides that he doesn’t want to perform some service that is at odds with his views? The end of democracy, my God! If a Republican insists a presidential election was stolen and that the president is illegitimate, that is an obvious assault on democracy, and probably treason. If Democrats insists a presidential election was stolen and the president is illegitimate? That’s democracy in action, and dissent is the highest form of patriotism.

 

Funny thing, this “democracy.” Funny and kind of stupid.

 

Democracy, meaning “rule by the people,” is a word that entered English in the late 16th century to describe a contrast with the other main forms of government in the Western world, monarchy and aristocracy. Monarchy and aristocracy, along with the example of the republics of Renaissance Italy and that of the Roman dictatorship, were very much on the minds of the American founders. Democracy did not have an especially inspiring track record at the time of our nation’s Founding, and the word democracy had not taken on its current moral hue. Democracy was a low thing, in their judgment, a near cousin to anarchy.

 

The most democratic forms of government in Western political history had been (in theory) democracies pure and simple, in which all political power was (in theory) held by the people themselves, who met in assemblies that were open to all citizens and voted on the great questions of the day. Hence, democracy has at times been construed to mean “majority rule.” Even though these democracies were hemmed in in various ways (for example, by religious tradition) that kind of democracy was unstable, often just a short step away from the Hobbesian bellum omnium contra omnes, and it often was indistinguishable from its cousins, ochlocracy (“mob rule”) and demagoguery (the exploitation of democratic passions by power-seekers). The Founders did not think much of democracy thus understood, and you can read quite pointed rejection of “democracy” in the works of John Adams, among many others. The word kept its ugly and anarchic connotations for years, such that when Abraham Lincoln wrote contemptuously of the “corrupt Democracy,” everybody knew what he meant — he meant the traitors and the slavers in the political party that still had and has the effrontery to call itself “Democratic.”

 

You won’t find any mention of democracy in the Declaration of Independence. The closest you will find to that is many complaints about the English king’s abuse of the law and the legislatures. The indictment of King George included:

 

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

 

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

 

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.

 

He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

 

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

 

He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.

 

He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.

 

He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.

 

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

 

This was not a democratic indictment, but rather one oriented more specifically toward liberty and the rule of law.

 

Those colonial legislatures were not exactly democratically elected, either — beyond the exclusion of women, African Americans, and the unpropertied, the idea was that such assemblies would be chosen from among the leading men by the leading men. The U.S. Senate, whose members were appointed by the various state legislatures rather than popularly elected, was once meant to be roughly the same thing. Adams sought a “balanced” government, meaning one that incorporated the best aspects of monarchy in the presidency, the best aspects of aristocracy in the Senate and other undemocratic institutions, and the best aspects of democracy in the House of Representatives. Democracy, in that respect, is merely useful, not a moral necessity in its own right. I believe that is still the right way to think about it.

 

When it is working well, our political order is indeed “balanced,” though not in exactly the way Adams preferred. Democracy is one constituent, one ingredient in the recipe. The other big one is liberalism, the idea that the rights and liberties of the people should be the central concern of government. The American Revolution was to a large degree a liberal revolution, one oriented toward reclaiming and fortifying what the Founding Fathers understood to be their rights as Englishmen — and, while it leads to some semantic confusion, American conservatism is fundamentally liberal: What American conservatives seek to conserve is a political and social order founded in Anglo-Protestant liberalism. This imagines a social order in which the private sphere accounts for the most important parts of life — piety, family, community, economy — and the public sector, particularly the national government, exists mainly to protect the liberty and the property of the people.

 

This is in contradistinction to the paternalistic model of government, which is still very much with us among the authoritarians and which demands that the state be a father and a teacher, a moral tutor and a moral disciplinarian, rather than a disinterested enforcer of laws and contracts. Democracy often acts as a sort of camouflage for paternalistic government, investing some political figure (in our case, almost invariably the president) with quasi-mystical powers as the personification of “We the People.” Strongman democracy is in practice very much like ordinary monarchy or dictatorship, and the strongman usually outlasts the democracy. It is democracy without liberalism.

 

Liberalism opposes and limits democracy in certain important ways: For example, the Bill of Rights and other provisions of the Constitution put some important considerations, such as freedom of speech and the right to keep and bear arms, beyond the reach of ordinary politics. Neither Congress nor the president can take away your constitutional rights, which, in the original understanding of the American order, are not granted by the Constitution by only formally recognized therein — being granted by God, which is why those rights cannot be legitimately trampled by any government, no matter how popular or democratic — Americans are “endowed by their Creator with certain unalienable rights.”

 

We sometimes call the usual Western mode of government liberal democracy, but the mix of liberalism and democracy is a contested matter. Libertarian theorists such as F. A. Hayek argued that the only real case for democracy is prudential, that a liberal (meaning libertarian) dictatorship would be entirely preferable to an illiberal democracy, and that we rely on democratic institutions only because there are not a lot of liberal dictators to be found. (Hayek’s inclination toward liberal dictatorship led him into occasional error, such as his excessive enthusiasm for the dictator Augusto Pinochet, who enacted some very liberal, positively Hayekian economic policies. Margaret Thatcher once felt compelled to write Hayek a letter warning him against being seduced by Pinochet and his methods.) In our time, there is a pronounced tendency toward illiberal or anti-liberal democracy, not only among such exotic paternalistic specimens as Viktor Orbán but here in the United States, too. The Trumpist element is an example of that, as is the circle of crackpot Catholic fantasists typified by Sohrab Ahmari and others of that ilk. To get some idea of the flavor of that, consider that Ahmari, who purports to be some kind of Christian conservative, despises the Federalist Society, the constitutionalist organization most directly responsible for the successful legal campaign against Roe, as — and here I will quote Ahmari directly — the “jackals of Mammon,” because the Federalist Society works toward a legal framework for economic liberty as well as an authentically constitutional approach to abortion.

 

I myself do not believe the ladies and gentlemen of the Federalist Society to be the jackals of Mammon. (I do not think that Ahmari really believes that either: Whether he is in his secular-Muslim phase or his atheist-neocon phase or his ultramontane Catholic phase, his true religion is and always has been notoriety.) It is true that liberal regimes sometimes by their liberalism enable vice. It is also true that illiberal regimes sometimes by their illiberalism enable vice, as every third goat in Wardak knows. The problem is the vice, not the liberty. But, then, my interest is in building up institutions, not in burning them down — unfashionable, I know.

 

What Hillary Rodham Clinton, Nancy Pelosi, Alexandria Ocasio-Cortez, and the cretins running around in “handmaid” costumes have in common with Donald Trump, Rudy Giuliani, the deranged January 6 cretins and the imbecilic American Greatness cretins who want you to believe that the January 6 riot was an “inside job” staged by the FBI and anti-Trump Republicans is that for all their talk about democracy — or elections, or the Constitution, or patriotism, or social justice, or whatever — their only real politics is the politics of the bawling baby: “Baby want!” For the partisans of Roe v. Wade, “democracy” means that they get what they demand — which is taking democracy out of the picture altogether when it comes to abortion law. But the abortion fanatics are not alone in this.

 

The Dobbs decision is, in a sense, a return to democracy — the very contentious issue of abortion will be debated as an issue in democratic elections and sorted out through democratic votes by democratically elected representatives in democratic legislatures. But it is in a more important and more profound sense a victory for the rule of law and for liberty — the Roe regime was not, and never could have been, legitimate, representing as it did the usurpation of legislative power by judges who have no entitlement to wield it. Overturning the laws of the states on specious grounds is every bit as much an assault on our liberal-democratic constitutional order as overturning the results of a presidential election on specious grounds would have been. The American people — not as individuals but as a people — have consented to live under our own particular Constitution, which actually says what it actually says, and we have not consented to live under a government of polite progressive opinion as communicated through the law schools and the legal profession. Legitimacy begins with consent.

 

In that sense, there was much more at stake in Dobbs than abortion, as prime and bloody an issue as that is.