So delighted to see this thoughtful review of my Democratic Theory Naturalized: The Foundations of Distilled Populism by Daniel Layman. It's very generous, so I'm quite grateful and have but a couple of teensy nits I can't help but tug at.
The first one involves a sentence that suggests I don't believe in judicial review. I probably shouldn't blame Layman for this. Likely I was insufficiently clear on the matter in my book: perhaps I gave a misleading impression of my take on the judiciary when I defended a limited Reversal theory along the lines pushed by Teddy Roosevelt in his later, Progressive days. But, with or without Reversal, I'm a firm supporter of an independent judiciary and, more generally, the rule of law. Without that, I don't think there can be anything like authentic democracy--and that's kind of my summum bonum. There's a brief summary of my take on judicial review in a recent paper of mine on the inconsistency of legitimate democracy and "mob rule." (See especially footnote 23.)
My second (again inconsequential) beef is that The Journal of Value Inquiry only saw fit to mention the (wildly expensive) hardback edition of my text. There are now also the much cheaper paperback and e-book versions! Amazon sells the Kindle version for about $37. Still a lot, but quite a bit less than a C-note.
Anyhow, I'm done kvetching so you can start fetching! {But see my comment below!}
One other matter. Layman suggests that I think that any "right" enjoyed by citizens must go by the boards if the majority wants to do away with it. That's incorrect. I hold that any right required for authentic democracy to be exemplified may not be abridged. That group includes the freedoms of speech, association, press and assembly. Discrimination cannot be allowed. Nothing prohibiting the unequal treatment of citizens or their votes may be tolerated.
ReplyDeleteIn fact, exalting democracy as I do provides several additional rights to the list we currently enjoy--though it's true that a couple would not be retained, unless the people wanted them. But majorities may never be allowed to vote away democracy...or any right that fair democratic practices require.
Hmm,, Walter, that's a reasonable approach but rights are not always clear and the only way to ensure a right is via the push and pull of democratic processes. That means that democracy is inherently imperfect because pushing and pulling among the different factions and individuals are a matter of carving out a common ground on which to stand. And that means compromise. When 9/11 happened a lot of the rights we normally expect seemed to suddenly be in jeopardy because the government needed to better surveil the communications among people. It violates our presumed right to privacy, implied in the Constitution, but without such violation terrorism is empowered. Where do we draw the line, say, between a person's right to control her own body and the fetus' right to be born or does having not yet been born mean no rights yet accrue? But don't we count a many who murders a woman and her unborn child a killer of two?
ReplyDeleteThen there's the perpetual question of how far does the second amendment protect our "right to keep and bear arms"? When does it stop? At bazookas? So-called assault rifles? Pistols? Muskets? And where does it stop? In a crowded shopping mall or school? On a city's busy streets? Like the right of free speech there are parameters, one of which in our country involves a presumptive prohibition on speech that can cause adverse actions. From shouting fire in a crowded theater to Trump's injunction on January 6th to his followers to "fight like hell" because "you'll never get your country back with weakness, you have to be strong" or Giuliani's admonition to the crowd that day, "let's have trial by combat," we must draw the line between allowed free speech and what is not allowed somewhere or we cannot live together in safety and comity. But where?
Was Trump just exercising his right of free speech if nothing he said can be exclusively interpreted as a call to insurrection, if it was only presumptively a matter of political rhetoric, metaphor? But does a president, who has sworn an oath to uphold the Constitution and "take care to ensure the laws of the United States are faithfully enforced" even have a right of free speech in a situation like that? Hasn't he special obligations that go beyond the average joe like us?
In a political domain to have democracy, understood as majority rule, there can be no clear cut line however much we wish for that. Or claim there is. It's always a matter of finding balance within a living, shifting world among individuals and groups competing with one another for social goods. And there must be a mechanism for calling the plays. Someone must have the final word on the rulebook but because it is only one or a few of our number in society, the rest of us have to accept the calls. And there have to be mechanisms to ensure we do. And we have to respect those mechanisms enough to defer to them so that they will continue to work. Behind the law is a moral imperative to play by the rules the law embodies . . . or to seek to lawfully change the rules to make them better.
None of the core rights our Constitution mentions and protects are absolute. There must be a shared mind on these matters and the job of the democratic process, when done well, is to enable and encourage such sharing. Only that way can we draw the lines needed to allow us to operate properly within them.