Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, December 19, 2017

Undermining Democracy

In the back page entry of the January 2018 issue of First Things (available here), Matthew Schmitz argues that Rev. Richard John Neuhaus has been proven right.  In a 1996 symposium issue of the magazine focusing on the judicial usurpation of democratic government (here and here), Neuhaus warned of “a growing alienation of millions of Americans from a government they do not recognize as theirs.”  That, of course, sounds a lot like the Trump voter of 2016 (a connection that Schmitz does not expressly make) – alienated and doubting the moral legitimacy of the American regime under which he or she lives.

The piece is worth reading.  Schmitz cites a recent study that shows that rising numbers of young Americans would welcome a strongman who does not have to "bother with parliament and elections" and who even would support military rule.  Surely these statistics would seem to indicate that Neuhaus was, indeed, correct, even if this reaction among the electorate is prompted less by judicial usurpation (as reflected, preeminently, as Neuhaus noted, in the Supreme Court's creation of the abortion license, and more recently in the judicial redefinition of marriage) than it is by the fecklessness and inattention of the political branches.

I would add, however, that those who are abandoning what had been regarded as constituent elements of democratic society (e.g. rights to a free press, free speech, religious freedom, and conscience) are not exclusively or even mostly on the Right (if in fact Trump voters can collectively and meaningfully be described as being on “the Right”).  Moreover, the people who question these commitments don't believe that they are abandoning democracy.  The students and others protesting at Yale, Missouri, Berkeley and elsewhere don't believe that they are undermining democracy but fulfilling it.

Schmitz quotes Notre Dame's Scott Moore as concluding that Neuhaus was correct to see "the inadequacy of purely procedural commitments for ensuring the legitimacy of government."  (This is something about which I have argued at some length. See here).  Neuhaus knew, together with Pope John Paul II, that when "the procedural rules of democracy" become "untethered from the substantive truths of democracy" the result is "the end of democracy." But the procedural rules of liberal democracy at least afford the participants within it the opportunity to find their way back to the moral premises upon which all legitimate government is founded.  When even these procedural rules are abandoned -- and worse still, abandoned in the name of democracy -- the groundwork for totalitarian rule is truly laid.


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