The Anti-Majoritarian Mistake

Jonah Goldberg thinks liberal societies don't need much democracy. He's wrong.

This Dispatch piece by Jonah Goldberg is extremely useful in illustrating the centrality of anti-majoritarianism on the right. Jonah has been a consistent critic of Trump and the GOP’s loony, violent, authoritarian turn. However, even the most reasonable, principled, philosophical conservatives tend to be wary of majoritarian democracy, as Jonah illustrates in his case against what he calls “democratic supremacy.” He doesn’t exactly define it, but the idea comes across clearly enough: political legitimacy and liberal justice require that the preferences of the majority generally prevail. Jonah rejects this because he’s of the opinion that “a liberal society can be just with remarkably little democracy.”

In my opinion, this claim is both false and dangerous. Moreover, I suspect that neither the Trump presidency nor the GOP’s authoritarian, illiberal, anti-democratic turn would have come to pass if not for the fact that most conservatives were already convinced that democracy is at best an incidental, instrumental aspect of a free society. Jonah’s articulation of the standard, traditional conservative view is worth digging into precisely because he’s a normie, pre-Trump fusionist throwback.

Now, Jonah’s plainly right that “large swaths of the center-left these days are somewhere between mildly and extremely obsessed with what might be called ‘democratic supremacy.’” And he’s right to see this commitment to “democratic supremacy” behind left-leaning criticisms of the Electoral College, the small-state bias of the Senate, the filibuster, other procedural hurdles to decision-making through simple majority votes, and the partisan bias of the Supreme Court. However, his criticism of proposed reforms in each of these domains are weak and fail to engage standard liberal arguments for the role of democracy in securing freedom and authorizing power.

Jonah begins with a response to Alexandria Ocasio-Cortez’s argument that there’s something wrong with a system that allows nine judges (five, really) to overturn popular legislation that managed to survive the demanding gauntlet of the American legislative process. He notes that “the left’s most prized political baubles,” such as Roe v. Wade, were “imposed” by Supreme Court majorities, suggesting that Democrats are fine with judges legislating from the bench except when Republicans do it.

Now, it’s interesting that AOC focuses on the court overturning democratic legislation, but Jonah focuses on the court assuming the power of a legislature and imposing policy. In my opinion, they’re both right because I believe that legislative supremacy is good and judicial supremacy — which is enabled by America’s queer, arbitrary, over-powered version of judicial review — is bad. My guess is that AOC also believes something along these lines. But Jonah clearly doesn’t. He is what I call an “ideological constitutionalist” of the right.

The ideological constitutionalist treats his contested ideological conception of justice or the best regime as a condition for the legitimacy of government and argues that, therefore, it must be constitutionally codified and sheltered from democratic revision.

As I recently argued in a post reconsidering my former Rawls/Hayek fusionism:

I think most Americans are ideological constitutionalists of one stripe or another, which is a big problem. It generally turns democratic politics into a contest to control the judiciary in an effort to remove your political rivals’ policy preferences from the scope of democratic discretion through the anti-democratic channel of judicial legislation. Eventually, one or another ideologically constitutionalist faction will get a leg up on the others, gain outsize power over the courts and proceed to undermine democracy in even more fundamental ways to lock down the partisan constitution its partisan judges have been successfully authoring.

I suspect that Jonah’s resistance to majoritarian reform is a symptom of his conservative ideological constitutionalism, which also accounts for his approval of the Republican lock on the Supreme Court and his indifference to the fact that it is an artifact of the anti-majoritarian nature of the Senate and Electoral College.

Jonah goes on to observe, correctly, that “13 justices overturning laws is as undemocratic as nine justices doing the same.” But he immediately goes astray when he suggests that this implies that AOC doesn’t really object to the anti-democratic nature of strong judicial review. Again, I’d bet that she does. “The real aim,” Jonah claims, “is to appoint four extra justices who can be relied on to greenlight stuff she wants that would ‘benefit us.’”

I think this represents a failure to grasp the liberal argument, which ought to be pretty easy to grasp. Suppose you believe that majorities should generally get their way on policy. In that case, it’s going to seem straightforwardly unfair to let five people override not only the public’s majority preference but also our system’s extra-majoritarian legislative process. And this will seem especially unjust when the court is divided along party lines and a majority of the court belong to the minority party — the party that represents less than half the voting population and failed to secure either the presidency or majorities in Congress, despite profound structural advantages. A 6-3 minority party court majority gives the minority party an option to veto anything the majority party does—even if the majority party has unified control of government and enacts measures supported by a large majority of voters. There’s no way to justify this in principled, broadly liberal terms. None.

Do you like to laugh? Just try to imagine Republicans shrugging and saying “Thems the breaks!” if a 6-3 Democratic court were to neuter unified Republican government by knocking down duly enacted legislation dearly desired by Republican voters. It’s impossible to imagine! You can’t do it! Because today’s GOP, if faced with this scenario, would kill the filibuster, and expand the court before you could blink. They’d do it because they could. That’s why they took a sledgehammer to precedent by stonewalling Garland and jamming Barrett through just weeks before an election they correctly suspected they’d lose — because they could. If a Democratic court majority was in the way and they had the power to change that, they’d change it and wouldn’t lose a second of sleep about it. Try to deny it with a straight face.

Anyway, from a majoritarian perspective, the point of rebalancing the court with four new Democratic judges isn’t so that they can greenlight anything. That’s the job of the legislature and the executive. The point is to prevent a partisan court majority from making a mockery of the republican ideal of popular sovereignty by summarily invalidating, on grounds that a majority of citizens reject, legislation that voters want and elected representatives to enact.

When you put it that way, institutionalizing minority party veto power over majority party governance sounds pretty shady, doesn’t it? But Jonah says he’s fine with this because it’s the court’s job to protect constitutionally codified rights from overreaching democratic majorities. In other words, he’s an ideological constitutionalist and he approves of the court majority’s ideology. I’ll quote him here at length:

The primary job of the Supreme Court is to protect constitutionally enshrined liberties. And that function is inherently—and gloriously!—anti-majoritarian.

If supermajorities of the legislative branch vote to override your individual right to free speech or freedom of religion or whatever, the Supreme Court can say, “No dice.” That’s wildly anti-majoritarian, and I wouldn’t have it any other way. If forced to choose between the “liberal” or the “democracy” in “liberal democracy,” I’ll go for “liberal” every time. I’m glad I don’t have to choose, of course, because democracy is an important mechanism for sustaining liberalism over time. But a liberal society can be just with remarkably little democracy. A democratic society is almost definitionally unjust without any liberalism.

This argument cuts no ice. The minority and majority party disagree vehemently about the content and contours of “our constitutionally enshrined liberties.” That’s why everybody gets so worked up about the Supreme Court! We all favor limited government in the sense that we all believe that there are rights the state mustn’t infringe. But we disagree about what those rights are. Even when we agree about which rights the Constitution enshrines, we disagree about their scope, the subsidiary rights and entitlements they imply, their enabling antecedents, etc.

Think about the nature of the disagreement. Consider the liberal claim implicit in this disagreement. The claim is that the conservative interpretation of the Constitution is incorrect. Now, you can agree or disagree with this, but you can’t make the disagreement go away by simply stipulating that, actually, conservatives are correct about the Constitution. That’s what we call “begging the question.” However, the problem isn’t just that it’s illogical to assume what needs to be established because this is politics, not logic. Disagreement is the stuff of politics. Propositions such as “Conservatives are correct about the Constitution” can’t be established in any politically meaningful sense; the ineradicable nature of this sort of fundamental disagreement is perhaps the foundational political problem. Who’s actually right is much less important than the fact that there’s high-stakes disagreement that will never go away.

At best, begging the question against political rivals on matters as basic as the meaning of the Constitution and the content of our rights and liberties amounts to a naive failure to grasp the political problem posed by pluralistic disagreement. At worst, it represents an illiberal urge to bulldoze the problem of pluralism by denying that political rivals with incompatible views can have a valid claim to power.

But “my way or the highway” cannot be the basis of any form of genuinely liberal politics. All durable liberal societies have evolved complex democratic institutions because it’s impossible to manage foundational disagreement in a liberal way — with peaceful toleration and mutual forbearance — without them. If a minority faction manages to arrogate to itself authority over the majority on grounds that it can justify only to itself — i.e., on grounds that the majority rejects — much if not most of the population will regard this authority as illegitimate. The confidence of the minority in its righteousness is irrelevant. If the minority gets high on its own supply and chooses to exercise its power in a way that tramples on our basic rights and interests, as the majority understands them, the system can rapidly destabilize.

When minorities strip majorities of their power to successfully seek redress and assert their will within the system — which is what a stacked 6-3 Republican court majority veto over Democratic unified government could amount to — sooner or later, stymied majorities will seek to protect their rights and interests outside the system. This is what it means for a political system to lose legitimacy — in the grubby, practical, nuts-and-bolts stabilizing sense of “legitimacy.” And that’s profoundly important, because we don’t want citizens to act outside the institutions meant to prevent disagreement from spilling into civil conflict. Avoiding that is the whole damn point.

Conservatives tend to treat liberal talk about democratic legitimacy as though it were barely a half-step away from Marianne Williamson crystals-and-dreamcatchers woo. Close your eyes, voters, listen to your breath and manifest legitimacy. You know, I used to think this way and spoke disparagingly about “democratic fairy dust,” but I was making a huge mistake. I was an ideological constitutionalist who wanted to structure our basic institutions along the lines of my own controversial comprehensive vision of individual rights and social justice in a way that my compatriots and their perniciously false beliefs — that democratic disagreement — couldn’t touch. I believed, like Jonah, that “[a] democratic society is almost definitionally unjust without any liberalism” and assumed that the version of liberalism that our democratic society would be unjust without was mine.

I thought this was a liberal view, but it’s not. There’s a sense in which basic rights, whatever those turn out to be, are non-negotiable. But what they turn out to be is the product of negotiation. In the real world, the rights we demand either reflect the exploitation, domination, constraint, and injustice we’ve experienced or privileges we seek to protect. But the rights that are ultimately recognized and protected are a function of the inclusion or exclusion of classes of citizens in the political system and the equality or inequality of influence on the process of political deliberation and decision-making. Political deliberation and negotiation can be a process of discovery, but what’s discovered depends on who’s allowed in the room. Rights don’t come to us on tablets etched by the divine. They come from people who know where the shoe pinches demanding more comfortable shoes.

Yes, it’s the nature of constitutionally enshrined liberties to take options off the table of formal democratic deliberation. But this is a truly extraordinary form of authority. Where does it come from? The dead cannot bind the living, Founder worship notwithstanding. That’s common sense and elementary metaphysics. The living bind the living, even if we’re animated by what we believe to be the venerable ideas of our venerable civic ancestors. But the ideas of the dead don’t in fact live on within us. Sure, we have plenty of ideas about the ideas of the dead, but those are no less contemporary than any other idea.

Shorn from the intricate original web of complex political context, inarticulable cultural presupposition, and emotive social connotation that gave them their full meaning, old ideas come to us like dinosaur bones or the pillars of a ruin. They hint at a fuller structure, we can accurately fill in many of the blanks, but we’re always missing something. The Museum of Natural History fails to imagine that dinosaurs were covered in feathers and honked like geese. The Museum of Antiquities misses that their serene alabaster pillars were dolled up in slutty technicolor. You can read The Federalist until your eyes bleed, but what you ultimately glean from it will be missing its paint and feathers, will roar instead of honk. No matter how you slice it, your ideas about the Constitution are yours. You’re responsible for them and they don’t come with a whit more binding authority than anyone else’s ideas. After all, what makes you so special? Your ideas are not especially distinguished or formidable contestants in the teeming battle royale of democratic contention, just like the rest.

However, conservatives habitually behave as though the strength of their personal conviction that the featherless jurisprudential velociraptor they have imagined to be the ONE TRUE CONSTITUTION can somehow confer legitimacy on the minoritarian rule of an originalist junta. They also tend to labor under the baffling assumption that conservative autocracy can deliver liberal justice just because they are very confident that the conception of liberalism and justice implicit in their reading of the Constitution is correct and that rival conceptions are incorrect. Don’t get me wrong. Confidence is great! It can do a lot for you. But it can’t do this.

Jonah does not distinguish himself from the common run of conservatives in this. His insouciance about the prospect of entrenching a minority party veto over majority party legislation supported by a majority of the voting population shows how remarkably lightly he holds the view that “democracy is an important mechanism for sustaining liberalism.” A light breeze, it seems, could blow it away.

But, again, the peaceful management of pluralistic disagreement is perhaps the most basic problem we need our political institutions to solve. We need a method of collective decision-making that does not require unanimous agreement or anything close to it, because we’ll never get it. Majority rule is functional and fair, and there is nothing numinous or mysterious about the nature of this fairness.

If a group of ten is deciding where to have dinner, the option that leaves six people disappointed is obviously worse than the option that leaves four people disappointed. The authority of majority rule derives from our shared recognition that it’s better when more rather than fewer people get what they want. It really is that simple.

Decisions that affect everyone need to be made, but there’s no way to make them without leaving some of us disappointed. It always feels a little unfair when collective decisions don’t break our way and we don’t get what we want. We always feel a little hard done by. But we feel least hard done by when the procedure used to make the decision was a fair one. And doing what most of us want seems a lot fairer than doing what most of us don’t want.

It’s telling that everybody takes it for granted that there’s no problem with the Supreme Court’s own reliance on majority rule. It takes determined focus and effort to cut across the grain of our shared moral sensibility and deny that it’s the epitome of fairness in collective decision-making when the side with the most votes wins the day. But the composition of the court — and the threat of an entrenched, destabilizing minority party veto — reflects the fact that, again and again, the side with fewer votes got to call the shots anyway.

Whatever label you want to put on this, it isn’t fair, it isn’t justice, it isn’t liberal and it isn’t democratic. For four years, Democrats were told “elections matter” as Republicans smashed norm after norm in their mad, heedless quest to strengthen minority control of the levers of state power. Well, it’s true: elections matter. When the majority party finally gains unified control of government — having managed to get over the anti-majoritarian firewall that the self-dealing minority party has built atop its already forbidding structural electoral advantages — it ought to use its power to enact legislation that most Americans want. But the GOP’s 6-3 majority stands in the way. In the end, it doesn’t really matter that the anti-democratic majority of this anti-democratic institution was achieved by dubiously democratic means. Elections matter and Congress’ authority to expand the courts is not in question. If Democrats were Republicans, they’d do it just because they could. But they ought to do it because they’re liberals and democrats and liberal democracy demands it.

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