March 31, 2015

March 31, 2015 | Commentary on Political Thought

Decayed Decision-Making

James Allan has written a short book with a big title, Democracy in Decline. It is well researched and thoughtful. Its central claim is that in the five oldest, most stable, and most resilient democracies in the world—the United Kingdom, the United States, New Zealand, Australia, and Canada—democracy is declining.

Some of the greatest writers in the Western canon have reflected on political decline. Tocqueville, for example, said in Democracy in America that we tend to misunderstand decline because, relying too much on the example of Rome, we often think an external barbaric force is required to bring down a civilization. But in the example of decayed China—apparently once a great and refined civilization, with advanced arts and sciences—Tocqueville sees another kind of barbarism. There, he sees a people who have lost the understanding of the intellectual principles on which they had built their civilization (and especially their sciences), and who therefore mindlessly imitate their fathers’ paths without understanding them. Mindless, tranquil imitation is a form of decline, a state of domesticated barbarism, according to Tocqueville.

The theme of the present study is similar, though the way of exploring it is more academic and technical. Allan, a law professor at the University of Queensland School of Law, argues that “democratic decision-making” is being eroded through four specific, traceable, though intermixed, causes: Democracy is declining because 1) judges, 2) international organizations, 3) supranational organizations, and 4) elites undermine and enervate democratic decision-making. By decision-making Allan means especially legislative decision-making, which is in effect popular decision-making. Thus, consent is the central issue of his book, and therefore with it self-government and human choice.

Starting in the 1950s and 1960s, American judges became less deferential to, and more willing to gainsay or second-guess, the elected branches of government. (And judges in the other four countries followed suit shortly thereafter.) This willingness to block or re-direct the views of the majority of voters as expressed in laws passed by their elected representatives was partly caused by the introduction of “living constitution” doctrines. Allan argues in fact that nations with written constitutions and bills of rights are especially susceptible to such doctrines. They continue to confer moral and legislative power on judges today, to the extent that jurists not only legislate from the bench, but also sometimes invent either rights or laws.

For Allan, this is not a method of interpretation at all—but rather a means of imposing a judge’s particular, often indefensible, moral prejudices onto the law. One is even left to wonder why, the specialized training in the law notwithstanding, judges are competent to judge moral phenomena better than others.

With this interpretive method, the authority of the law is further undermined given that judges may change their minds over time—even over short periods of time. Indeed, if a constitution is living, it is alive in a different way from one moment to the next. The law therefore has little meaning in itself, and “the content of a law can never be known for sure by a concerned . . . citizen.”

Living constitution doctrines simultaneously create in judges both contempt for the law and personal pride in overcoming what they deem to be deficient. For instance, Britain’s highest judges in 2004 in Ghaidan v. Godin ruled that they can interpret law in a way that “departs from the intention of the elected Parliament,” and they can do so even when “the meaning admits of no doubt.” The very boldness of this admission is especially alarming, coming as it does from what ought to be the most subdued and conservative branch of government.

On top of living constitution doctrines, the introduction of international law into the decisions of domestic judges is also concerning. Not only is the overall quality of international law “lousy,” but it is generally made in undemocratic ways—by bureaucrats behind closed doors without input from voters. Whereas in the United States, ratification of international treaties requires Senate approval, parliamentary ratification is unnecessary in the other four democracies. In these latter, the often vague, amorphous, and indeterminate treaties are adopted by judges without public consent. (As we see in the current situation concerning the Iran nuclear talks, the President may make executive agreements with foreign nations; without Senate ratification, however, an executive agreement, if unpopular, is unlikely to survive the President’s tenure and is not binding.)

Even the relatively high standard of Senate ratification has not prevented the use of unratified treaties in U.S. courts. In the 2005 case of Roper v. Simmons, the Supreme Court cited the United Nations Convention on the Rights of the Child in the course of deciding what “cruel and unusual” meant in the Eighth Amendment of the U.S. Constitution. As Allan explains:

Top American judges . . . cited and gave weight to treaty-based international law that the elected branches had specifically and explicitly refused to incorporate into domestic law.

But besides U.N. declarations, international law comes from what Allan calls “publicists”: an elite, generally Left-leaning group of law professors, who “get to infer and identify what the supposed duty-motivated practices of states are, and so to tell us the content of this undressed international law.” As a group, publicists are generally

committed to the project of international law, that is to the proposition that nation-states ought to resolve . . . their disputes pursuant to existing and emergent rules of international law rather than . . . by economic or, worse, military force.

If creating law on the basis of a consensus among Left-leaning publicists regarding “existing and emergent rules” is an accepted principle, why shouldn’t we turn to other states for their judgment on the death penalty, hate speech, or labor laws, rather than have these issues decided by our elected representatives?

Allan also cites the growth and prevalence of supranational organizations, like the European Union, as another source of democratic decline. In ratifying E.U. legislation, voters of participating countries have no role in adopting it. French, Dutch and British citizens were not consulted on the Lisbon Treaty, for example. Writes Allan:

The European Commission is basically an unelected civil service . . . that proposes new EU laws. No individual citizen of a member country even gets to vote for the EU president, or any of the other top Commissioners.

And, of course, the E.U. Parliament doesn’t propose laws, but can only vote on the Commission’s proposals.

This problem clearly affects the U.K. much more than the other four democracies examined, but the broad point is well taken: the E.U. undermines sovereignty in the form of taking out the hands of the U.K.’s elected legislators decision-making powers, and places these powers in opaque civil service commissions. And when British and E.U. laws are pitted against each other in domestic courts, the former is overruled. Free peoples are more and more ruled without their consent by an overwhelmingly powerful, anonymous, and unaccountable state.

Elites are Allan’s last cause of decline. They take in the lawyers, human rights activists, and lobbyists who, calculating they will lose in the court of public opinion, prefer to put their case before a single federal court judge, and to them the author adds elected officials. Specifically, he blames elected politicians who, in shirking their duty to the public and democracy itself, are sometimes the strongest supporters of turning to the courts to strike down laws or otherwise circumvent the legislative process.

Allan thinks this occurs partly on account of a loss of faith in the democratic process, and partly because elected officials face no public cost in a system where judges are institutionally and instinctively given the last word on most of the difficult and unpopular issues. Elected officials can publicly indulge in irresponsible policies and rhetoric, counting on the courts to make it right in the end. In doing this, they dodge their ultimate responsibility to make a frank case to the voters. Democracy is in decline because of a deficiency in moral courage.

This thoughtful, scholarly account surely gives cause for concern. Ultimately, though, its arguments do not go far enough. What is most lacking here—perhaps less the fault of the author than a conventional limitation of the academic law genre—is a philosophical discussion of the law, from the perspective of its moral and psychological effects on citizens, with the corresponding argument that intelligent law aims to shape the minds and characters of citizens to make them suited for freedom and self-government, and to preserve this temperament in a people.

For example, Allan does not sufficiently examine the civic implications of living constitutionalism. When the law ceases to be seen as just and instead becomes something that needs to be made just, citizens learn to despise the law. Are governance and civilized obedience possible in a regime made up of individuals who despise the law? When citizens learn to despise the law, they either become ungovernable or turn to demagogues, or both. The ensuing anger and hatred can lead to the re-barbarization of a people. Veneration for the law is also essential to citizenship, and especially so in liberal democracies. There, the law itself is a reflection of an ideal—political freedom—and is the authority that most directly governs the mind (rather than a priest or king, for example). In this way, the law, by tying our sentiments to the regime, is at least a partial cause of patriotism and attachment to our nation.

Throughout Democracy in Decline, Allan appeals to a core of “well-informed, nice, reasonable, smart people”—a phrase he often repeats—who presumably will overcome their Left-leaning dogmas and see the good sense of his arguments. Yet this formulation reflects his underestimation of the ire and ambitions of those whom he opposes, individuals motivated by more powerful forces than the desire for comity. By appealing to such an audience, he assumes that being “well-informed, nice, reasonable, smart” is some kind of human standard on the basis of which democracy, and therefore human freedom, can be saved.

Will nice and smart people have sufficient intellect, prudence, and moral courage to save civilization by reading academic books?

Finally, the standard of judgment against which Allan analyses democratic decline is “majoritarian rule,” which he wants to preserve and rejuvenate. But it is of course plausible that majoritarian rule would merely lead to a different kind of decline. Intelligent and farseeing laws can be subverted or otherwise destroyed by the enthusiasm or ignorance of a majority. Examples abound, and it is a concern that Publius discusses in Federalist 10 and Tocqueville in his reflections on the tyranny of the majority. In other words, Allan’s favoring majoritarian rule is a tentative position, rather than a permanent standard. True, he desires to rejuvenate the “process” of democracy, but this is not a sufficiently rich concept to correct the trends against which he argues.

In this regard, this book is a puzzle piece in a picture that it does not fully see: it is a partial critique of the excesses of democracy, and a partial, though important, examination of the secondary causes that account for decline.

 - Arthur Milikh is assistant director of the B. Kenneth Simon Center for Principles and Politics at the Heritage Foundation

Originally appeared in the Library of Law and Liberty 

About the Author

Arthur Milikh Associate Director, B. Kenneth Simon Center for Principles and Politics
B. Kenneth Simon Center for Principles and Politics