“Dad- what is democracy?”
“Got something to do with young men killing each other, I believe.”
So now it’s time for the spookiest, SCARIEST time of the year – Election Day 2020!
It is of course spooky and scary this year because of the stakes if Joe Biden loses the election (and Republicans keep the Senate) which seems that much more likely now that “Boofin’ Brett” Kavanaugh and the other conservatives on the Supreme Court have shown their hand in preventing Pennsylvania from taking mail ballots received after Election Day. And Amy Comey Barrett is now waiting to take her place to help rule on the various cases that Viceroy Trump is going to bring to throw out Biden’s votes.
And of course liberals whine and wail about how unfair all of this is, as if there’s any sort of rule against the President appointing a Supreme Court justice during an election year – just as there was not a rule against a President filling a SCOTUS vacancy in 2016, and in both cases it amounts to Mitch McConnell can do any damn thing he wants cause he’s got the votes in the Senate. Which leads to more liberal complaining about how “un-democratic” the Senate, and the Electoral College, and the whole American constitutional system are, as though that wasn’t the point. But at the same time, we have, through constitutional process, made the American republic more democratic and inclusive than the way it started out, and the Republicans really are going back on what we have come to think of as democracy. The real problem is that they are going back on what it means to be a republic.
The fact of the matter is that ‘democracy’ and ‘republic’ mean much the same thing.
‘Democracy’ comes from the Greek demos (people or demographic) and kratia (rule or government), thus democracy means ‘the people rule’ or ‘popular government’. According to Wikipedia, ‘republic‘ is derived from the Latin res publica, publica of course being public and res referring to a property or matter in question. Thus the phrase could translate as ‘public matter’ or ‘public concern.’
Political science and history make a distinction between the two. Each Greek polis (city-state) had its own form of government, and the main ‘democracy’ of the period was the polis of Athens. Women, youths, slaves and foreign-born men could not participate in the vote, but every other adult male citizen was obliged to participate in politics in the same way that a State Assemblyman or US Congressman would as their job. However, the Founders of the United States, influenced by classical philosophers such as Plato decided that a pure democracy would lead to mob rule and the prospect that a demagogue could exploit the system and create a tyranny. This was the Federalists’ explicit reason for the Electoral College. In actual history, Athens’ primary example of a demagogue was Alcibiades, who won Athens great victories in the Pelopennesian War, but also turned around and worked for both Sparta and Persia for the sake of his own advantage.
The Founding Fathers, rather than follow the Athenian example or even a contemporary example like the Iroquois Confederacy, modeled their government after the Roman Republic (which is one reason we have fasces at the Speaker’s podium in the House of Representatives and in much of our iconography), which after the overthrow of the Etruscan king was built around the Roman Senate. “Senate”, incidentally, is taken from the Latin senex, or “old man”, thus a senate is literally “a group of old men.”
In the days of the king, the Senate was simply the council of elders that the king consulted, but once the monarchy was overthrown, Roman culture professed to disdain inherited title and kingship while still using the Senate to preserve class privileges of established families, which is similar to the purpose it holds today. Even with a separate House of Representatives (similar to the British House of Commons) and the Progressive reform to have Senators under popular election rather than chosen by state legislatures, the Senate is still very much the upper house that like the Electoral College exists to slow or outright stop the popular will. In the not-too-far-off old days when senior Republicans were moderate and liberal government was the rule, the Senate was the Elephants’ Graveyard where conservative ideas went to die. Now that bipartisanship is dead but the Democrats have retaken the House, the Senate, and its capacity to appoint federal judges to lifetime terms, is all the Republicans have left.
In political language, the ‘democracy’ that we define as separate from a republic is called direct democracy, but the main example of this in Western civilization is Athens itself, and later liberals, like the Americans, hewed closer to the Roman pattern than the Athenian one, or like the British, simply evolved their system of representation in an organic, trial-and-error manner. Thus, while we think of “democracy” in terms of broadly protecting civil liberties and human rights, the form of said democracy is technically more of a republic, or a representative government, in which people vote for a professional class of politicians to represent them in government rather than perform day-to-day governance themselves.
In practice, though, we apply the phrase ‘democracy’ in the generic sense that we use ‘Coke’ to refer to any carbonated soft drink (even when most people who prefer Coke to Pepsi or vice versa will never get them confused). To be really technical, we could most accurately call this country a democratic republic; it follows republican features but has generally sought to expand the franchise to more and more people. However, this also means not every democracy is a republic – the United Kingdom, for instance, still has legacy positions for the Lords and the monarch that do have a real influence on the government from time to time, even as the day-to-day function of government is a parliamentary democracy. Indeed, with the increasing autonomy of Scotland and other localities, it could be argued that the British are now more democratic than us.
It’s just that with the natural ambiguity of the English language and the deliberate ambiguity of political language, American politicians take the primary God-word of our political heritage – ‘democracy’ – and apply it in a completely subjective manner to make it mean something good or bad depending on what they want to suggest at the time. So liberals have suggested for years that the Constitution is a living document that in a democracy changes not so much by the formal amendment process as by how the majority wishes to interpret it, but when the political majority changes to interpret the Constitution against liberal standards, suddenly that’s a violation of democracy. And at the same time, when they point out to the Right that their political majority is misleading because red states in particular have throttled the “right” to vote, the Right will actually agree, and say, with Senator Mike Lee (BR.-Utah) that this is a republic for a reason and “(we) want the human condition to flourish. Rank democracy can thwart that.” Of course, these are the same people who howled that when Democrats in the House impeached their President, they were thwarting the will of the American voter, never mind the fact that Mike Pence would have succeeded Trump as his elected successor and the result of the election would have been preserved.
The character of this sentiment is demonstrated by its implications. The fact that the Right will engage in this doublethink in sanctifying “freedom” and “democracy” on one hand and then disparaging democracy/majority rule on the other simply indicates the package deal we have where America identifies “democracy” not in terms of the “bad” democracy of the Athenian polis but the “good” democracy of the Roman Republic. But even by that standard, “democracy” means that the voters pick their representatives. And if the political class, the current representatives, want to use the courts and other entities to throw out votes, limit ballot access and play other games to keep themselves in power expressly against the voter consensus, then never mind “It’s a republic, not a democracy”, under that system, it’s not even a republic anymore.
Under that setup, the defenders who trash democracy on one hand yet praise “democracy” “freedom” and “liberty” on the other are defining freedom, liberty and political rights as something belonging to only their demographic, and elections are simply a plebiscite to approve what they want.
Right-wing cynics like to joke that “Democracy is just a setup where two wolves and a sheep take a majority vote on who gets eaten for dinner.” By that logic, a republic is just a setup where the sheep has the right to vote on which wolf has the first right to eat him. Keep in mind, Nazi Germany, the Soviet Union and Communist China are all technically republics. A mere republic is nothing to celebrate.
The fact that there is both a distinction and an intersection between the two terms democracy and republic, and that it is possible for the popular will to crush the rights of minorities, as was the case for so much of American history, is why the subject is so complicated, why “conservatives” are able to exploit that ambiguity, and why for instance it is not easy to say that Trump is a fascist or anti-democratic. After all, like Hitler (but unlike Mussolini or the Bolsheviks), he used the democratic system to attain power. This was a subject that the Vox website famously addressed early in the Trump era, and Dylan Matthews recently returned to the subject this month, asking eight experts if Trump qualifies as a fascist. And while most of them agreed that Trump is truly dangerous, they all said that fascism has specific characteristics and Trump doesn’t necessarily qualify. As Roger Griffin at Oxford University told Matthews: “You can be a total xenophobic racist male chauvinist bastard and still not be a fascist.” He also said later on that “(Trump’s) relationship to democracy, I would really insist, is the key to answering whether he’s a fascist or not. Even in four years of incoherent and inconsistent tweets, he’s never actually done a Putin and tried to make himself a permanent president, let alone suggest any coherent plan for overthrowing the constitutional system. And I don’t even think that’s in his mind. He is an exploiter, he’s a freeloader. He’s a wheeler and dealer. And that is not the same as an ideologue.
“So he’s absolutely not a fascist. He does not pose a challenge to constitutional democracy. He certainly poses a great challenge to liberalism and liberal democracy. And I think real favor will be served by journalists who, instead of seeing liberal democracy as a single entity, see it as a binomial. Democracy can exist without liberalism.”
This observation leads to two points.
First off, using ‘fascism’ as an umbrella label is an old Communist tactic from the pre-Nazi period of the German republic, which unlike us has always had a social democrat mainstream left. And the Communists, seeking to compete with and replace the Social Democratic Party, identified them as ‘social fascists‘ simply because they were not communists. (They were also the originators of the term Antifa.) Don’t fall for it.
Secondly, and more relevant to this piece, the fact that there is such a thing as illiberal (right-wing) democracy and that the communists often refer to themselves as ‘democratic’ or ‘popular government’ movements simply justifies why America’s founding fathers were at pains to distinguish their system from democracy and why it has so many counter-majoritarian elements. They were far more concerned with protecting liberty than democracy. Which in some respect is understandable. If we can argue that the Nazis had broad popular support (and one could argue the opposite) then something like the Nuremberg Laws could be considered an example of democratic action.
Given that, it makes sense to have a Supreme Court acting against the political trend so that they can point to the laws and precedents of the country if the rest of the government wants to pass a racial law like the Nuremberg codes and say, “No, you can’t do that, the Constitution forbids it.” But then, the whole premise of the Republicans’ Supreme Court fight is that the anti-democratic plurality seeks to corner the judiciary, not to protect the original intent of the Constitution against political trends, but to protect their political position against unpopularity.
And in regard to the comparison, Weimar Germany did have a very liberal constitution, but when the Nazis passed the Enabling Act, through perfectly constitutional means, they basically authorized Hitler’s government to act as it wished without approval from the Reichstag.
Which is where we get to the real issue. The Germans had a government of laws, and so do we, or so we thought. We had a whole slew of laws passed to guard against corruption in government, the White House in particular, after Watergate, but if nobody’s going to enforce them, they might as well not exist. And this gets to an overall issue with American government. I have often compared it to the rules of a board game or role-playing game where the Constitution and other written laws are the Rules As Written and the various legal precedents and “norms” are the house rules, how the government actually operates from day to day. And this touches on the classical liberal/libertarian concept of “negative rights.” Negative rights basically mean that government is prevented from doing something, as in the First Amendment starting “Congress shall make no law” and specifying from there. In this case, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” means that our rights to freedom of worship (implying a right not to worship) are insured by the fact that the government cannot dictate a religious standard. Similarly, while government has restricted the press and the right to assemble for both practical and political reasons, there is an overall standard holding that the rights to speech and assembly exist because Congress is not allowed to prohibit them. The reason for the distinction lies in a point frequently made by Ayn Rand:
“The fundamental difference between private action and governmental action—a difference thoroughly ignored and evaded today—lies in the fact that a government holds a monopoly on the legal use of physical force. It has to hold such a monopoly, since it is the agent of restraining and combating the use of force; and for that very same reason, its actions have to be rigidly defined, delimited and circumscribed; no touch of whim or caprice should be permitted in its performance; it should be an impersonal robot, with the laws as its only motive power. If a society is to be free, its government has to be controlled.
“Under a proper social system, a private individual is legally free to take any action he pleases (so long as he does not violate the rights of others), while a government official is bound by law in his every official act. A private individual may do anything except that which is legally forbidden; a government official may do nothing except that which is legally permitted. This is the means of subordinating “might” to “right.” This is the American concept of “a government of laws and not of men.”
Which is of course, just Rand’s opinion. But even in the Bill of Rights, the Ninth Amendment says “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” and the Tenth says “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The whole reason for having a Bill of Rights is to insure that certain rights are protected against the rationale that there is no law preventing (say) interference with the press. The implication of the Bill of Rights, the Ninth and Tenth Amendments particularly, is that the government is constrained by law. And yet, as with the Roman Republic, we, both voters and Congress, have given more and more power to each branch of government, especially the executive, because it was considered more convenient (to some people) than using the Rules As Written. There’s also the point that a lot of our necessary rules aren’t even in the Constitution. The number of Supreme Court Justices, for instance, wasn’t set until the Judiciary Act of 1869. And with regard to the President in particular, the person holding the office has been given a great deal of leeway simply because he’s the President. I had mentioned just as Obama was leaving office that libertarians and principled liberals thought that his reliance on executive orders and unilateral actions was setting a precedent that Trump could refer to. Reason Magazine said that the powers Barack Obama assumed were like leaving “a loaded weapon lying around” for his successor to use, and liberals scoffed. But before Obama, the political class in both parties, even Democrats under the George W. Bush Administration, put up with such power creep because however much the opposition might have disliked the guy in charge, he didn’t grossly abuse the privilege, before Trump. But it’s that much worse when the person in question has always had an inflated sense of entitlement and even before becoming a government official always operated on the maxim “it is easier to ask forgiveness than permission.” Now the standard operating procedure for the Trump Organization is that they can do anything they want because there’s nothing specifically forbidding them from doing so, and even if there is, nobody’s enforcing the laws.
The fact that Trump is simply taking a more blatant approach to what had gone before means that this was a problem whether you think the American government before Trump was democratic, republican, or fascist.
So on one level, the question of whether this is a republic or a democracy, like the question of whether Trump is a fascist, is meaningless compared to the results of actions. A huge part of the issue is a paradoxical matter of trust. Democrats ought to know by now they can’t trust Republicans, and not only do Republicans not trust Democrats, they think they’re Satanists, commies, or worse, liberals. And at the same time, the more politically active contingents know they can’t even trust their own parties, which is how you got the “progressives” on one side and the Tea Party/Trumpniks on the other. Not only does this increase extremism, that in turn increases the power creep in government as the party in power can only rule unilaterally and not by cooperation. I’m sure Obama’s defenders would point out that he had to rely on executive orders, especially after losing Congress, because Republicans wouldn’t cooperate with him. This is also why Democratic Senate Majority Leader Harry Reid killed the filibuster on judicial appointments, because prior to Dems losing the Senate, Obama couldn’t get any judges appointed at all otherwise. And then of course, once McConnell took over the Senate, he took the last judicial power Obama did have, because the judicial branch is the only way conservatives can prevail without that pesky “negotiate with the other side” process at all.
The paradox is the fact that as partisans of each camp become more distrustful of the other, the more they have to place their trust in their self-assigned gang, no matter how much they hate them. The cycle of tribalism means you have to tolerate the nutbags on your side no matter how much you would have objective cause to disavow them, because you hate those other nutbags even more. The fact that this is a process that incentivizes being a nutbag, and thus makes bad policies more likely, seems to be lost on everybody.
Therefore, while in the short run it may be necessary to throw out the Republicans, and in the long run it will be necessary to hold Democrats accountable by not trusting them any more than necessary, the real change is only going to occur once each voter examines their own motivations and decides how much to trust the rest of the country versus how much power they want to give government to control the people they don’t trust.
I suspect that the thought of such self-examination is what really scares the hell out of America.