Thursday, July 3, 2008

A Well Armed Lamb

"Democracy is a lamb and two wolves voting on what to have for dinner. Liberty is a well armed lamb."
-Benjamin Franklin

While I'm not going to go into deep detail about various Supreme Court decisions of late (I've already written about one of the three really controversial decisions of the last couple months, in my last entry and I agree with the striking down of the DC gun ban and the Guantanamo decision as well), I am going to comment on them: it is a staple of American politics to trumpet democracy when you've won more popular votes than your political opponent and to trumpet the constitutional process when you've won a disputed election. In the same fashion, it is a staple of American politics to trumpet judicial activism when you like a Supreme Court decision and to trumpet the 'will of the people' and popular democracy when you don't.

'The will of the people' is an interesting and very abstract concept. It was the idea of political philosopher Jean Jacques Rousseau and it was one of the guiding principles of the French Revolution. It was later expounded upon by such widely differing thinkers as Lenin and Trotsky (the intellectual disciples of socialist Karl Marx and rationalist Rene Descartes and the creators of 20th Century political communism) on the one hand and by Fichte and Hegel (the fathers of the German muscular Romanticism that led first to Nietzsche and then to Hitler) on the other. Rousseau's definition is the one that concerns us, as we live in much the kind of political society that Rousseau imagined.

In Rousseau's nation state, elections are not merely head counts of popular opinion with the majority getting its way. In his view, the election is a spiritual-metaphysical process in which the moral spirit of the nation expresses itself in the voting process. The results of the democratic election signify the will of the entire nation, of all the people, even the minority voters whose idea or candidate was defeated. Thus every election result should be considered to be a unanimous result, regardless of how narrow a margin decided the matter, and opposition to the decisions of the majority are treason against the nation and attempts to undermine the rights of the people. This theory led directly to the worst horrors of the French Revolution, eventually collapsing on itself when the people elected Napoleon Bonaparte military dictator. The result was an absolute terror of liberal ideas in Europe that came to define the post-Napoleonic era.

Democracy is, as Benjamin Franklin said in another famous moment (only to have his line swiped by Winston Churchill), the worst form of government... except for all the others. This is why the United States has a constitutional democracy intended to define the powers of the government and protect the rights of the minority.

In this modern era (and indeed for much of the history the United States) the defining political arguments have all been about what our Constitution truly means. Even though the victory of the Hamiltonian interpretation of the 'necessary and proper' clause was sealed when Jefferson used it to justify the Louisiana Purchase, strict construction and liberal interpretation remain locked in an apparent struggle to the death. Even though the Constitution's 'absolute' nature was put to rest when the first ten amendments were tacked on to ensure ratification, and many of them have followed since, we still face a struggle over the question of whether the Constitution is truly a living document.

The United States Constitution was intended for two purposes: firstly, to integrate thirteen squabbling pseudo-nations into one real country under a national government strong enough to be able to protect those states from the rest of the world and, secondly, to protect the citizens of those states... from the governments of their states. Freedom of speech and the press was guaranteed not because of British colonial policy (if you read the newspaper polemics and published pamphlets of the day, not to mention the speeches, you will find that the British colonies enjoyed a Hell of a lot of freedom of expression and by God they used it!) but because of the laws passed in some states restricting such expression. The fundamental reason freedom of religion was guaranteed was because of the powerful state churches in Massachusetts (Congregational) and Virginia (Episcopal) and their treatment of dissenters.

The purpose of the constitution was thus two-fold: to establish a democratic form of government, and to protect the people from the disasters of democracy run amok. Majority tyranny is no less tyrannical because it is popular. Slavery was either supported in some form or else not actively opposed by the majority of Americans until the Civil War. The fact that slavery was politically protected by the majority did not make it any less tyrannical.

All of this brings me back to the Supreme Court. There have been bad justices and bad courts. Disasters like Plessy v. Ferguson and the Dredd Scott decision cannot be excused and the Court is not infallible.

These serious errors do not make the Court less important, though they do make the issue of judicial appointments even more serious than their political impact on voting blocs already makes them. The Supreme Court is meant to defend us from our government. In a neighborhood where the gangbangers all have guns, citizens should be able to protect themselves. In a society built on the recognition of fundamental human rights, denying those rights to others is fundamentally unacceptable. Excessive punishment is cruel and unusual whether or not is popular and its opposition controversial.

Democracy is the best form of government that we have available, but its maintenance requires that the minority be able to protect itself from the majority.

The Supreme Court is meant to be our arsenal.