Democracy Needs More Than Itself to Survive

Consider the following scenario: A political party declares that homosexuality is a major threat to the United States. They add that there is no such thing as a gay identity, only homosexual inclinations.

Because they don’t recognize a gay identity, the party happily accepts gay people as citizens, voters, and party members: “Homosexuality is a filthy abomination,” they say, “but we would never take away anyone’s voting rights.” And they don’t.

Past experience tells us that at least some gay people will join that party. Some might not even be closeted. A party could run on the platform of repealing same-sex marriage, criminalizing sodomy, censoring gay art and literature, and closing down gay community organizations. That party could win and severely persecute gay people. It could remain deeply illiberal, and thus inimical to democracy, without denying anyone citizenship, voting rights, or party membership.

This is a known pattern. Racist parties sometimes welcome the “good” members of a stigmatized race. Religious and other minorities may get similar treatment. Sexist parties can and do welcome women—that is, the women who would confine other women to traditional roles. In each case, the subset of persecuted people who would join the illiberal party would not moderate its program. Some are all too happy to be the contrarian spokespeople for their own oppression.

The problem of democratic exclusion is a subset of a larger problem, namely that of unequal civil rights. Removing the franchise may happen or not, but the problem remains conceptually similar either way. I’m therefore not convinced that it makes sense to treat the franchise as the prime mover of the set.

I find that the recommendations that we get when we assume that democratic participation is the key to the rest of our rights tend to look oddly mechanical and ineffective. Illiberal parties already know that they can happily work around our insistence that they open up their own ranks.

Democracy is great, but let’s be more precise: we want to protect people. Civil rights, including voting, are one means to that end. But it may not be the case that equal democratic participation rights protect, encompass, or serve as an adequate conceptual stand-in for the full scope of human rights. A liberal democracy needs to keep both of the words of its descriptor firmly in mind; it must be liberal as well as democratic.

Indeed, by the time that a significant political party outright bans membership by a disfavored minority, the members of that minority have probably already been experiencing many other forms of repression. Far from being a heavy hammer brought out only in emergencies, an open party membership requirement for antidemocratic parties could be both too little and too late.

Consider prisoners. Many people in both major U.S. political parties believe that prisoners should be denied the vote. We should therefore admit that many of America’s “democratic” politicians are really antidemocrats, at least on this issue. We could insist that prisoners be allowed to join the Republican Party—but they already can. And so, when considering with the most salient group of disenfranchised Americans that I know of, the remedies that target antidemocratic groups appear completely ineffective.

When we turn to the fate of the imprisoned themselves, restoring their democratic-participatory rights seems like only a good start. To do the work we really want, a theory of rights needs to integrate both the rights of democratic participation and other kinds of rights, even if they have only a weak tie to democratic participation in themselves. Only that kind of a theory could effect genuine change.

Mila Ghorayeb is aware of this, and her account of democracy doesn’t really end at political participation:

Realistically, there is an imbalance in the way citizens are legally bound by political decisions. Your sentencing prospects on a drug arrest will be bleaker if you cannot afford a good lawyer, and your financial status will also determine your access to the political arena. Democracy, in this case, is an ideal rather than something fully realized in practice.

But in passages like these it starts to look like “democracy” is an overworked term: No one, I think, would assert in good faith that the real problem with the War on Drugs is that it denies so many the franchise. The real problem is that it exists in the first place. Many of its harms—like inadequate treatment, the inability to hold a job or raise a family, and the needless dangers of black-market drugs—are at best only distantly related to democratic participation.

Let’s say we articulate a set of rights not conceptually founded on democratic participation, its requirements, and its consequences, but encompassing rights further afield as well. There would seem to be at least two ways of safeguarding the items on our list:

  1. We could prevent illiberals from participating in the polity or otherwise constrain their participation.

  2. We could establish a constitutional requirement that the rights we have articulated take more than a simple majority vote to restrict. We might require a supermajority, an absolute majority plus a majority of a majority of districts, or a majority in two or more differently chosen representative bodies. There are lots of strategies that could be used singly or in groups to cordon off especially important rights and make them harder, or even formally impossible, to restrict.

These two strategies have different fields of action. The first restricts citizens and citizen-run groups, and it does so unequally. It may therefore send the signal that democracy is only for right-thinking people. It also means that we are committing the polity to a new and difficult task, that of gatekeeping over time. Once one group has been sanctioned, the question will always be on the table: Should some other group be next? Mistakes of over- under-inclusion will proliferate regardless of how we keep the score. In the process, we will lose an important coordination point in our political culture—the clear, simple rules of democratic inclusion that we could otherwise rally around.

The second strategy does not restrict citizens or citizen-run groups; it binds only legislators. It preserves democratic participation while sending a signal that certain rights are more fundamental to our polity than they might be elsewhere. It will dissuade illiberal groups and make their programs mathematically harder to achieve. If we are worried about democratic participation rights—which we should be—then democratic participation rights should get these heightened protections. This the United States has already done.

Yes, that strategy failed during Reconstruction, when a horrible Supreme Court decision and an unchecked terrorist group both helped to defeat it. Yet it may still be that in a world where ignorance, hypocrisy, and bigotry are pervasive, the second strategy prevails. That’s because an individualized and general framework of rights can still protect even those minorities whom we personally find repulsive, whom we know little about, or whom we cannot conceive of as persecuted by the mistreatment that we are inflicting on them.

An individualized rights framework helps because it gives people the chance to defend their rights even when they don’t already belong to a well-known or well-defined group. Before Stonewall, gay people as a group had little social salience and even less esteem, but they usually still had their First Amendment rights, and that wasn’t nothing. Such rights allowed a gay identity to emerge, and as it did, the parts of the law that were the most harmful to gay people came increasingly into question.

As Ghorayeb rightly says, “what counts as ‘socially salient’ can be easily manipulated.” It can be, and it is, both for good and bad purposes. The groups most needing protection may be the ones whom we are the most reluctant even to acknowledge. But a group doesn’t need social salience to start convincing people that it deserves social salience.

Consider the following not entirely fictional dialogue:

Me: Some people don’t fit neatly into either of the gender boxes that we usually get assigned to at birth. We should thus affirm the humanity and dignity of trans and nonbinary people. And we should avoid public policies that hurt them.

Social Conservative: But there are so few of them.

Me: The smallest minority is just one person, and I stand for individual liberty.

Social Conservative: But there are so few of them.

I have had variants of this conversation several times. It is therefore good that the U.S. Bill of Rights never asks how many of us there, or how well organized we are, before it deigns to protect us. If we think we might be able to get a group going, we can always do that, and if we want to remain alone, we’ll still probably be okay. A polity in which the citizens propose to govern themselves deserves nothing less. Democratic participation rights are good, but they will be hollow if we don’t think of them as being grounded in, and as serving, a larger ecosystem of individual and cooperative actions. 

Also from this issue

Lead Essay

  • Mila Ghorayeb looks at liberal polities’ use of antidemocratic tactics against illiberal groups. She concludes that it is not necessarily paradoxical to limit political participation with a view to preserving an imperfect democracy, but that whether it is desirable or feasible are different questions.

Response Essays

  • Brian Kogelmann says that a democracy shouldn’t compromise on democratic participation. Allowing antidemocratic groups to participate runs the risk that they might win and restrict the franchise, but restricting their participation creates a new form of political inequality. It is therefore preferable to allow them to participate.

  • Rather than restricting antidemocratic groups, Jason Kuznicki proposes to safeguard democratic and other rights by articulating them in an impersonal way and making it constitutionally difficult for anyone to change them. Under such conditions, open participation by antidemocrats becomes less risky, and persecuted minorities can organize for their own protection.

  • Mike Godwin argues that democracies should tolerate antidemocratic activism—at least as an initial response. Yet democracies’ responses to antidemocratic activism need not end there. He urges the defenders of liberal democracy to better articulate how to respond to antidemocratic critiques. Such critiques need not lead us to abandon democracy, and at times they might even draw attention to genuine shortcomings in a democratic polity.