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Homegrown Varieties of Illiberal Democracy

“Illiberal Democracy” is much in the news today. Victor Orban, the prime minister of Hungary, openly espouses the concept, and the ruling Law and Justice Party in Poland is frequently said to embrace a similar regime. Some critics accuse Trump of promoting an illiberal democracy, although his appointees to the Supreme Court both support strong protection for constitutional rights against democratic overruling—a cornerstone of liberalism.

The condemnations of illiberal democracy are frequently shallow because they tend to assume rather than show the coherence of “liberal democracy,” that illiberal democracy displaces, ignoring the real tensions between liberalism and democracy. Democracy poses a threat to liberties. Liberties restrict the scope of democracy. Putting these concepts together into a simple package called liberal democracy is a difficult task. Indeed, under very strong versions of both democracy and liberty, combining them may be as impossible as squaring the circle.

Moreover, America has already established paradigms of illiberal democracy that are much more likely  to influence our politics than some foreign import or new creation of Donald Trump. Perhaps the most obviously fertile ground for illiberal democracy is denying effective judicial review of constitutional rights. Opponents of effective judicial review either outright or through doctrines of elastic deference on both the left and right have been around since the beginning of the republic. They were first given a sophisticated defense by James Bradley Thayer and have many academic defenders today. A majority empowered to construct rights essentially as it sees fit opens up a plausible route to an illiberal democracy unless the political culture is so strong as to restrain the majority’s passions in turbulent times.

Social democracy or progressivism—another well-established American tradition—is at least half of an illiberal democracy. Social democrats generally do not believe that economic liberties should be protected against democratic abrogation. And despite disclaimers, this form of democracy tends to undermine the independent protection of all rights, leading to a more comprehensively illiberal democracy.  One reason for this slippage is that the defense of setting aside economic rights is hard to confine to economic rights. For instance, if economic rights should not be protected on the grounds that there are no prepolitical rights, why are civil liberties not also up for political determination?

These theoretical concerns about slippage are now richly realized in practice. Progressives are willing to curtail even civil rights connected to the democratic process, like the right to speak out at election time, to protect an ideal of equality.  And with the confirmation of Justices Neil Gorsuch and Brett Kavanaugh,  some progressives are now openly calling for court packing. Amusingly, court packing is widely thought to be the paradigm case of illiberal democracy when proposed abroad, as in Hungary and Poland. Sadly, when progressives accuse Donald Trump of promoting illiberal democracy, they often have a bad case of projection.

In a subsequent post, I will describe how the American Constitution interpreted according to its original meaning does a good job of mixing liberalism and democracy.

Reader Discussion

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on January 04, 2019 at 16:23:28 pm

"Illiberal democracy" is merely "liberal democracy" deconstructed or (to see my point from a different angle) "liberal democracy"carried to its logical outcome and bearing the ineluctable fruits and consequences of its nature.

A republic, not a "liberal democracy," is what we bargained for and constituted, and a conservative democracy or democratic republic is what we had.

But as Ben Franklin might well now say, "We could not keep it."

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octothorp
on January 04, 2019 at 17:55:42 pm

“Perhaps the most obviously fertile ground for illiberal democracy is denying effective judicial review of constitutional rights.” Louisiana’s new criminal jury absolutism, 12:0, ending 138 years with Amendment VI impartiality at 9:3 then 10:2, illustrates illiberal democracy and is due constitutional challenge.

U.S. citizens beyond Louisiana may take interest in a landmark overthrow of the U.S. Constitution that was engineered by the 2018 Louisiana Legislature.

In 1774, British colonists in the eastern seaboard suffered abuses so declared they were rebellious statesmen rather than loyal colonists. Since 1776, Virginia has had the Bill of Rights requirements to provide the accused “the right to a speedy and public trial, by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty. He shall not be deprived of life or liberty, except by the law of the land or the judgment of his peers . . .” Absolutism (unanimous consent) conflicts with impartiality of peers.

Thus, Virginia's 1776 provisions did not hold in the US Constitution (established 1788). The US, in Amendment VI (1791), dropped "unanimous" and "peers" leaving those considerations to the states, who must provide impartial verdicts.

Starting in 1880, French-influenced Louisiana (1812 statehood) brilliantly favored impartiality and peers by creating the 9:3 unanimous-majority verdict rather than the erroneous 12:0 absolutism practiced by tradition in the other 38 states. By 1967, England had reformed to 10:2 verdicts, specifically to lessen organized crime’s influence on juries. In other words, England also wanted to aid impartiality of peers.

Athenian Greeks, 2400 years ago, despite slave cruelty, suggested that impartial citizens establish equitable law enforcement by discovering statutory justice (my interpretation appreciating subsequent events). In the U.S., the agreement to collaborate for statutory justice is stated in the preamble to the U.S. Constitution. “Statutory justice” seems the “ultimate justice” Abraham Lincoln imagined in 1861.

The U.S. preamble is offered to every fellow citizen regardless of anything: religion, race, skin color, wealth etc. The fellow-citizens’ ability to responsibly dissent against the civic, civil, and legal purpose and goals of the U.S. preamble distinguishes the freedom from oppression this nation offers.

In civic integrity, skin color is not a valid variable in the pursuit of statutory justice. Some people are habitually impartial regardless of skin color. Furthermore, FBI data show that the chief victim of 12:0 jury verdicts are blacks, because with only 13% demographic, black on black crime accounts for half the crimes.

Both attorneys and legislators swear to uphold the Louisiana Constitution and the U.S. Constitution. Quoting U.S. Amendment IV.1 (1868), “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Citizens are entitled to protection under U.S. Amendment VI.

As a citizen of Louisiana, I support and demand a jury system that attends to the U.S. Amendment VI requirement of impartiality rather than absolutism. The 2018 Legislature’s actions to void Louisiana’s unique provision of impartial verdicts violated U.S. Amendments VI and XIV.1. I commend the Legislature to restore the 1880 provision of 9:3 verdicts.

Virginia stands at odds with U.S. Amendment VI’s requirement that states provide impartial juries. Virginia citizens could commend the state to remove the conflict of impartiality and peers imposed by 12:0 absolutism. I would recommend 9:3 impartiality in felony trials and 11:1 in aggravated murder trials. My ratios may be improved by statistical studies of how to favor habitually impartial citizens plus citizens who can be persuaded to be impartial in the state’s process to provide jury trials.

To address “peers,” I think states should only allow in the jury pool citizens who can demonstrate that they collaborate for statutory justice according the U.S. preamble’s purpose and goals.
Readers may take interest in the brilliance of the impartial 9:3 criminal jury verdict in state compliance with U.S. Amendment VI. Oregon still has a 10:2 rule, but Louisiana has joined the other 49 states who do not comply with the Amendment VI requirement for impartiality.

Since 1776, Virginia never provided juries favoring impartial peers, and therefore, is not so clearly in violation of Amendments VI and XIV.1. However, Louisiana, in 1880, provided 9:3 verdicts so as to favor verdicts by impartial peers.

Also, the fact that 1880 was within the Jim Crow era pales before the fact that the U.S. establishment in 1788 was during slavery. The people who perpetrated the hoax to persuade voters to think “what if I was accused” rather than “what if my family member was the victim?” or “as a fellow citizen, I am the victim with absolutism,” are not as responsible for this travesty as the Louisiana instigators, including the Louisiana State Bar Association (I understand all the state’s lawyers), The Baton Rouge Advocate newspaper personnel, the 2018 Louisiana Legislature, and Gov. John Bel Edwards.

I think the illiberal democracy that was perpetrated by the 2018 Louisiana Legislature was U.S. and Louisiana constitutional violation by mendacity.

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PHILLIP BEAVER
on January 05, 2019 at 16:24:44 pm

Yes. Patrick Deneen makes essentially your first point in his acclaimed book. Liberalism of the Hobhousian variety--which is what the critics of "illiberalism" have in mind--never declares victory and goes home: It finds humanity oppressed, and would set it free. . . .Everywhere it is removing superincumbent weights, knocking off fetters, clearing away obstructions. . . .a movement of liberation. (Liberalism).

More pointedly, Deneen writes that In [liberalism's] advanced stage, passive depletion has become active destruction: remnants of associations historically charged with the cultivation of norms are increasingly seen as obstacles to autonomous liberty, and the apparatus of the state is directed toward the task of liberating individuals from such bonds. This is exactly as Hobhouse would have it: [T]he function of Liberalism may be rather to protect the individual against the the power of the association than to protect the right of association against the restriction of the law.

And Ralf Dahrendorf in his 1965 examination of the failure of liberal democracy to develop in Germany held to the same conception of liberalism: namely, that it could not be present where people related or associated on any basis other than that of completely deracinated autonomous identical individuals pursuing economic self-interest; therefore, he reasoned, people must be coerced out of all such "traditional" associations for their own good (and he praised the DDR for doing just this).

As for McGinnis' paean to judicial review, its primary ineffectiveness lies in its jurisprudence of rights balancing. A right that can be be "balanced" against another right is not a right at all, but a privilege, your enjoyment of which is at the discretion of the State (though its judicial agents) depending on how they feel that day. This, too, is in keeping with Hobhouse's understanding of liberalism: Upon the whole it may be said that the function of Liberalism is not so much to maintain a general right of free association as to define the right in each case in such terms as make for the maximum of real liberty and equality. Breyer, Ginsburg & Co. couldn't have said it any better.

So yes, in a Hegelian development of something into its own negation, liberalism properly understood now goes by the name of "illiberalism," and vice versa.

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QET

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.