Equality by lot

Glenn Greenwald is a former constitutional and civil rights lawyer and a prominent independent journalist, most famous for breaking the Snowden revelations about U.S. government surveillance.

In a recent segment on his show, Greenwald takes U.S. vice president J.D. Vance to task for claiming that U.S. supreme court is subverting the “democratic” will of the U.S. voters to deport all illegal residents from the country (as expressed in the election of Donald Trump to president) by putting up legal barriers to some deportation efforts implemented by the Trump administration. Greenwald rightly points out that Vance’s claim is obviously manipulative. The U.S. system has from the outset, deliberately and explicitly, set up various restrictions on what elected officials can do, and in particular legal challenges to executive policies have always been used, including, of course, by Republicans, to block popular policies.

When presented this way, all of this is the standard grist for the liberal mill. Politicians pretend to be concerned about the anti-majoritarian nature of mechanisms that they like to utilize in their favor when it suits them. “We”, good liberals who stand for civil rights and the rule of law, should be grateful that such mechanisms exist whether or not we support deporting illegal residents. Such mechanisms make sure that government is not despotic and that majorities do not oppress minorities. Specifically, a proper procedure for deporting illegal residents is already in place and is not in any way obstructed by the courts. We should all insist that this procedure is followed whether or not a majority of the voters wish to and thus it is good that the U.S. has anti-majoritarian procedures in place.

However, Greenwald, who is far from being either naive or superficial, does go beyond this. He notes that the U.S. institutional structure was erected by the founders as a republic rather than as a democracy, deliberately (and in fact rather explicitly) so that it secured their privileged situation against a potential majority who might want to deprive them of it. Thus, the anti-majoritarian mechanisms can obviously be used (and presumably Greenwald would say “are used”) not to block oppression but to allow oppression to continue.

But then this important historical-theoretical point fundamentally undermines the rosy liberal picture. If we get oppression (or potential oppression) both with and without anti-majoritarian mechanisms, then the argument for anti-majoritarian mechanisms, as a safeguard against oppression, is invalid. The question becomes whether on balance anti-majoritarian mechanisms tend to generate more less oppression? Greenwald does not address this normative question and rather stops after making a positive analysis. This of course allows any of his viewers who subscribe to the standard liberal dogma (and indeed many who do not see themselves as liberal, but possess an elitist mindset) to understand his position as justifying the anti-majoritarian structure (maybe after suppressing the shock of the unsavory historical origins of this structure).

To me it seems that someone with Greenwald’s democratic sensibilities should clearly see that anti-majoritarian mechanisms must be overall a tool of oppression. Unless one believes that some minority is more trustworthy in its prudence and virtue, or that the status quo is somehow inherently benign and should be privileged, then allowing any minority to either set policy or to block policy changes, can be expected to lead to the oppression of the majority by that minority. There is no trade-off between democracy and oppression but rather, while oppression is always a possibility no matter what system is in place, the probability of oppression is minimized by democracy – which is exactly why democracy is desirable.

Beyond the issue above there are additional important points that Greenwald glosses over, or about which he adopts erroneous positions, when he implicitly grants that (1) the election of Trump implies an endorsement of the actions of the Trump administration regarding illegal residents and that (2) in a democratic system such an endorsement should be translated into policy. The first point, the equivalence between voting for a candidate and supporting any particular action by that candidate’s administration, especially if that action can be construed as being part of an important plank of the candidate’s platform, is part of the mythology of electoralism. However, such an equivalence is completely unfounded. For example, it is highly doubtful that a majority of Americans would support a deportation procedure, such as the one pursued by the Trump administration, through which they could easily find themselves, or their family or friends, who are fully legal residents of the U.S., rounded up without recourse, deported, and thrown into a dungeon for the rest of their lives.

More fundamentally, the notion that following popular opinion when choosing between a set of given options on a particular matter is “democratic” is baseless. The standard objections to this notion invoke rational ignorance. However, much more important is the fact that if the decision making situation and the options between which the public is allowed to choose are set by powerful elites then the decision made by the public might very well lack any significance and in no meaningful way reflect the public’s values or interests. A specific decision cannot be disconnected from the system which created the decision making situation and be declared democratic simply because under the circumstances a majority for a particular option was generated. A democratic system is one which is designed to express the values and interests of the public. In the context of an oligarchical system, any specific decision cannot be democratic, no matter how popular it is.

Filed under: Elections, Press |