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Under Discussion: Are Liberalism and Democracy Fundamentally at Odds?

photograph of wooden pins representing peoplewith majority in support and a handful opposed

This piece is part of an Under Discussion series. To read more about this week’s topic and see more pieces from this series visit Under Discussion: Democracy’s Demands.

“Liberal democracy” is a phrase so commonly trotted out in discussions of types of modern political regime that one could be forgiven for thinking that its components — liberalism and democracy — fit together hand in glove. Yet this is far from true. The U.S. Constitution represents an uneasy compromise between liberalism and democracy, and many of the thorniest political problems the U.S. has faced derive from the fundamental tension between them.

Liberalism is a political philosophy that makes the individual and her freedom the locus of value. According to liberalism, the basis of the state’s right to use coercive power is that such power is necessary to secure the freedom of the individual against the depredations of others, including the state itself. By contrast, the practice of democracy is undergirded by an ethical commitment to the principle of majority rule — the idea that the basis of the state’s moral right to use coercive power is the mandate of the majority of the people.

In a liberal democracy, then, we have two uses of state power that count as morally legitimate: to secure or enhance freedom, and to enact the will of the majority. But these two uses can sometimes point in different directions. On occasion the majority wishes to reduce freedom — usually, the freedom of a minority. For example, segregation in the U.S. South represented the will of the white majority imposing limitations upon the freedom of the African-American minority. In such circumstances, there is a clash between the idea that majority rule makes political power legitimate, and the idea that political power cannot legitimately be used to restrict freedom. The key question in such cases is whether freedom ought to triumph over majority rule or vice versa.

The Founding Fathers were liberals and democrats, which is why they created both democratic institutions and institutions to serve as bulwarks against the popular will. For example, for all practical purposes the Bill of Rights takes questions of fundamental individual liberty off the democratic agenda: there will be no vote on the right to free speech (thank God). Meanwhile, the judiciary acts as a counterweight against democratic majorities when, through their representatives, they enact legislation that undermines the rights enshrined in the Constitution.

Today, those on opposing sides of many of the most controversial issues in U.S. politics will invoke the two legitimate uses of political power to ground their positions in widely acknowledged political values. Consider two culture war issues, abortion and gay marriage. Liberals say that they find within the Constitution a guarantee of women’s freedom to choose and homosexuals’ freedom to marry. Thus, they argue that state legislatures cannot legitimately prohibit these activities, even if the majority of people in the states are against them. On the other hand, invoking the legitimacy of majority rule, conservatives urge that these issues ought to be brought up for a vote in each state. At the same time, liberals will also point to the majority of Americans who support legalized abortion in favor of their position, and conservatives will oppose gay marriage on the grounds that it impedes the free exercise of religion. It’s interesting to note that essentially the same arguments — freedom versus the will of the majority — were made by the advocates and opponents of desegregation in the 1950s and 1960s, or the radical Republicans and Southern Redeemers in the 1860s and 1870s. We will probably see the same pattern repeat itself in debates over transgender rights, drug legalization, and other issues in the coming years.

As my potted history suggests, the trend over the last sixty years has been toward greater freedom and less majority rule. The courts have interpreted the Constitution as a broad guarantor of individual rights, regardless of the people’s desire to abridge those rights. But this may be changing. With the U.S. Supreme Court becoming more conservative, we may see a rollback of Constitutional guarantees of certain individual rights. The trend of finding individual rights in the Constitution, and of continually broadening the scope of federal government protection for those rights, will be reversed. In effect, the courts will throw these issues back to the voters through their representatives in state legislatures.

Is this a welcome development? On the one hand, it will mean that many states will not recognize what many believe are important individual rights, such as the right to control one’s reproductive life through the use of safe abortion. On the other hand, it will mean that people will live as the majority of their co-citizens wish them to live, at least with respect to certain important choices in their lives. Democrats (of the small ‘d’ variety) might find in this reason to celebrate.

Indeed, the slide toward illiberal democracy appears to be a world-wide phenomenon. Illiberal democrats reject the liberals’ view that securing and enhancing freedom is a legitimate use of state power. Philosophically, they recognize only the legitimacy of majority rule, and they use democratic tools, such as referenda, to legitimate policies that strip minorities, political opponents, and ordinary citizens of their civil and political freedom.

But for all that liberalism and democracy can be at odds, the fusion of the two appears to be a relatively enduring and equitable model. Individual civil rights like free speech encourage more effective democratic deliberation and encourage participation in the political process. At the same time, insofar as liberalism is embraced by the majority, it is further legitimated by that very embrace.

Still, the potential for disharmony between the fundamental tenets of liberalism and democracy means that liberal democracies are never free of deep controversies that can tear at the social fabric. As we continue through this period of both internal and external instability, that potential is more likely to come to fruition as the will of the people becomes increasingly antagonistic toward the freedom of the individual.

Does Australia Need a Bill of Rights?

photograph of Australia High Court building

Rights are one of the most recognizable ethical tools of the modern world. They have increasingly dominated the way we think about our moral lives – as individuals, as nations and in international relations. Nearly every mature, liberal democracy has a constitutional bill or a charter of rights to which lawmakers and keepers must defer. 

Rights language has become entrenched in the way we speak, that it is often taken as fundamental. A claim that “I have a right to X” will often trump other arguments. A right is an entitlement. A right entails a duty – the right to freedom of expression entails the duty not to impede expression. In theory, if not always in practice, rights have been very important in guaranteeing the dignity, self-determination of persons. They are important because they promote those conditions necessary for well being, for humans to flourish and for society to promote that flourishing. 

But there can be a dark side to rights claims – for example a claim to the right of free speech can be used to protect racism and lies, the right to freedom of religion can be used to protect discriminatory practices and the right to bear arms, enshrined in the US constitution, has made it nearly impossible to tackle the scourge of gun violence in America. 

Some important philosophical questions about rights – what they are grounded in, what things should be considered rights, how they are protected and what to do when rights appear to clash with one another – remain a challenge. Some of these questions are central to the current national debate in Australia over whether a bill or charter of rights should be instituted. 

Australia is the only mature liberal democracy that does not have a charter or a bill of rights. Many feel that the introduction of constitutional rights is long overdue, yet others do not believe that a bill of rights is needed. In fact, many feel that such a bill might even be a hindrance to the administration of justice.  

This has manifested as a tension between ‘old constitutionalists’ who believe that the combined functions of the parliamentary and judicial system provide the best, most flexible and most democratic protections for Australians, versus those who think that the system is failing in some key areas which a bill of rights would help to rectify. 

At the time Australia’s constitution was written, early in the twentieth century, having a bill of rights as part of the constitution was rejected. It was argued that, in the words of former High Court Justice Michael Kirby, “a due process provision in such a bill of rights would undermine some of the discriminatory provisions of the law at that time.”

Some constitutional provisions function as rights provisions– such as freedom of religion. But it is the government’s legislative power which has expanded federal legislation and protected fundamental rights by creating specific statutes dealing with human rights questions or the removal of various kinds of discrimination. Many of these have been based upon Australia’s ratification of international treaties. 

Various parties feel this process has worked well because it gives flexibility to the system, where charters of pre-existing, inalienable rights can make the system inflexible. Up to now, whenever this debate has arisen, the general sense has been that Australia’s parliamentary democracy usually works reasonably well, and its citizens have usually had a high degree of trust in legislators. If they do not act justly, particularly if they act oppressively, they will be dismissed from office at the next election. 

A further objection to the introduction of a bill of rights, that such a bill would lead to a kind of ‘judicial imperialism’ by way of transferring power currently held by the legislative body, to the courts – unelected (usually white, middle-aged, male) judges. The worry is that, a bill of rights could result in the entrenchment of values of said judges into law, in a way that would prevail even over Parliamentary statutes. 

However, the argument that it would politicize the courts and allow too much power in the hands of judges, who are unelected and therefore not as accountable in the democratic system, may be losing ground. One contributing factor is this era of increased populism, from which Australia, following the results of the most recent election, is certainly not immune. In that vein, one could also add the growing  sense that people’s trust in democracy has been eroded through the influence of many different, powerful forces from corporate lobby groups to misinformation spread on social media. 

Nevertheless, the issue of flexibility is still present. As the example of the right to bear arms in the US illustrates, things which may be important fundamental rights at one time, may not be appropriate in another. Having protections enshrined as rights can make them very difficult to amend later. The Australian constitution, like the US constitution, is very difficult to alter, so the worry is that the community could be stuck with rights that end up resulting in more harm than good. 

A bill of rights drawn up now may not have the capacity to deal with problems of the future. We live in an age of such exponential technological change, we may not yet know what problems internet technology, biotechnology, genetics or artificial intelligence may pose. It is not likely that a bill of rights drawn up now would be able to predict or manage all of the issues that these advances might bring. The argument is that it is better to leave rights and responsibilities associated with these issues to be dealt with as they arise by the parliament of the day through the enactment of specific legislation. Such legislation can typically be expressed in far greater detail and specificity. 

On the other hand, the democratic system may have its own flaws when it comes to equal protections for every person. It does, of course favor the majority, and for this reason it is felt by some that a bill of rights is necessary to ensure the interests of minorities and other vulnerable individuals are equally protected. As Justice Michael Kirby, a strong advocate for a bill of rights in Australia, said in a recent address on the subject:  

Democracies look after majorities. Democracies are good in looking after majorities… In America, if President Trump does something which is considered unjust, there is provision for the appeal to the federal courts and ultimately the Supreme Court. But in Australia we have very few weapons if politicians in the majority don’t feel it is a matter they are interested in or that there are no votes in it. 

Though it is true that rights can sometimes be inflexible, and that there are difficulties in deciding what rights to enshrine, how to enforce them, and how to manage situations where they may come into conflict with one another, from the perspective of the question of how a society can best protect minorities or vulnerable individuals it is prudent to remind ourselves about the philosophical case for rights. 

The notion of inalienable rights is based on an ethical principle of equality and dignity. It is a deontological principle which has at its core the imperative to treat persons with respect, as ends in themselves but never as means to an end. This fundamental tenet is at the center of the notion of human rights. 

There have been cases in Australia over recent years in which the government, for largely political reasons, has failed in its duty to treat all people with respect and dignity. A prominent example is Australia’s treatment of refugees, holding them in indefinite detention in substandard conditions for basically political reasons. Justice Kirby argues that: 

Basically, the idea of finding the fundamental principles that bind us together and that our rules for a fair society are principles that should be bipartisan and not consigned to one side of politics.

A bill of rights would ensure that basic protections, like the right to freedom from discrimination and freedom of expression, would be guaranteed for all Australians, and all those under Australia’s protection. Minorities and the vulnerable would be protected from the possibility of legislation which would undermine these things. These protections communicate our convictions about principles like equality, justice and kindness, which is the essence of a good and free society.