The fragility of democracy

Modern Age, Spring, 2006 by Jude P. Dougherty

Subsequent to the American Civil War, the defeated Robert E. Lee in a letter to Lord Acton, dated December 15, 1866, fearful of the usurpation of power by the newly empowered federal government wrote: "I yet believe that the maintenance of the rights and authority reserved to the states and to the people, are not only essential to the adjustment and balance of the general system, but the safeguard of the continuance of free government. I consider it to be a chief source of stability to our political system, whereas the consolidation of the states into one vast republic, sure to be aggressive abroad and despotic at home, will be the precursor of that ruin which has overwhelmed all that preceded it." (19) Lee may be considered not only prescient with respect to the United States, but prophetic with respect to the European Union. The danger is perennial. Lee's judgment is echoed by James M. Buchanan who, writing in 2004, concluded: "The separate nation states of Europe are not likely to shed off their histories of national autonomy and jump in, as it were, into a new unitary monolith that remains in the process of being created ... [yet] over a long period the European Leviathan may well become a dominant and dangerous force." (20)

In the United States it is beginning to be recognized that the most serious threat to democracy comes from a politicized judiciary. Appointments to the highest courts are made with a political objective in mind. The left recognizes that a liberal political agenda could never be implemented purely and simply through the legislative process. Given the nature of the legal system, those appointed to the judicial bench are more likely to be attuned to the liberal Zeitgeist of the academy than to the temper of the people. The chasm between the academy and Main Street is notorious. It is not so much that judges are often instruments of special interest parties or sectional financial interests as it is the pragmatic and naturalistic conscience they have developed in their university years. The reigning philosophy of education disposes one to challenge an inherited moral and cultural order. Carried into the practical realm this often leads to a negative evaluation of an imperfect past in favor of an idealized future.

Because both philosophy and theology are organically connected to political policy, we find federal courts in the United States ruling against the public display of the Ten Commandments and Christmas creches, disregarding even from a secular perspective their symbolic value in calling attention to the principles undergirding the rule of law. At the time of the American founding the fathers of the new republic appended to the Constitution a Bill of Rights to guarantee explicitly that certain principles would prevail over the course of time. The First Amendment reads in part: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." As understood at the time, the clause prohibited the establishment of a national religion but did not prohibit or abolish the state churches then existing in the majority of the colonies. The Supreme Court through a series of rulings since 1947 has all but prohibited the expression of religion in the public sector while at the same time it has attempted to impose secular norms on religious bodies. In responding to the Zeitgeist of the academy and by ignoring the beliefs of the overwhelming majority the Court provides another example of the fragility of democracy.