I’m grateful to have the chance to comment on Mila Ghorayeb’s thoughtful essay centering on whether a democratic society can, consistent with its own premises and values, restrict political participation from antidemocratic forces or factions. I agree with much of what she writes, including her conclusion that there’s no inherent contradiction in a democratic society’s ultimate decision to proactively limit or suppress antidemocratic political action (even including speech in certain narrow circumstances). I also agree that, generally speaking, these limiting or suppressing responses are not the best approach—at least not at first.
Where I disagree with Ghorayeb is in certain details of her analysis, as well as in her assessment of certain current antidemocratic threats.
It should be no surprise that I think this topic is evergreen: I’ve written about this very issue more than once over the course of my career. And in recent years I’ve been compelled to revisit my earlier efforts and refine my thinking as we’re confronted with seemingly new variations of the problem that Karl Popper famously framed in The Open Society and Its Enemies as “the paradox of tolerance.”
Like Ghorayeb, I have felt compelled to return to this subject matter by the range of events that have occurred in American political life in recent years. In my view, there is no question that there has been an increased willingness of some factions to search for a principled justification for shutting down the speech and political activity of opponents who they believe are anti-democracy. I think this issue needs to be addressed, but, as I’ve said, I may disagree with Ghorayeb as to how to address it.
We saw some of these concerns springing from the 2017 “Unite the Right” rally in Charlottesville. To my dismay as a Popperian, I saw Popper’s discussion of “the paradox of tolerance” reduced to a cartoonish infographic that (unsurprisingly given its format) drastically oversimplified Popper’s discursive thinking about the problem of with anti-democracy speakers and movements. Thankfully, Jason Kuznicki responded quickly on this very issue in 2017 in a way that he no doubt hoped would put to rest the misreadings of Popper’s position on the paradox.
Unfortunately for Jason and the rest of us, the “intolerance of intolerance” idea had ongoing memetic traction on social media and elsewhere. For that reason I felt compelled to do a deeper dive on the subject on the one-year anniversary of the Charlottesville riots. Coincidentally, I published my one-year-later reflection in August 2018, just a couple of months before Ghorayeb published her own initial essay on “Antidemocratic Candidates and Democracy”—a precursor to her new essay that is the subject of this symposium. And it’s here that we find my first major points of disagreement with her subsequent essay.
In her new essay, Ghorayeb maintains the view that democratic societies aren’t acting in a “paradoxical or contradictory” way if they impose some restrictions on (e.g.) who can run for office. A particular example of such a restriction came to mind for me early in 2020 when President Trump was subjected to an impeachment trial in the Senate based on charges originating in the House. In the politically unlikely event that Trump had been convicted by the Senate, he might have faced not only the sanction of removal from office but also the sanction of “disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States,” per Article I, Section 3, of the U.S. Constitution.
The latter penalty, if imposed, may matter a lot; when then-federal judge Alcee Hastings was impeached and removed from on the federal bench in the late 1980s, the Senate might have chosen to bar him from holding any future federal office. The senators chose not to do so, however, and Hastings staged an extraordinary political comeback, ultimately resulting in his election to the House of Representatives. Hastings has represented Florida’s 23rd District, and later the 20th District, ever since. Given that Trump was impeached on charges of abusing the powers of his political office as well as of obstructing Congress, in the alternate-universe version of the impeachment trial, Trump might have been removed and also—if the Senate had wished it—might have been barred from serving at some future date as president. (Whether we are living in the “Mirror Universe” or somehow managed to avoid the “Darkest Timeline” may itself be the subject of partisan debate.)
At any rate, there seems to be no significant dispute on the question of whether an impeached president might be barred from serving as president, or in any other federal office, in the future. And this aligns well with Ghorayeb’s conclusion that restrictions on who can hold governmental power aren’t necessary paradoxical—it’s arguably consistent with democratic principle that those who abuse governmental power might be barred from exercising it again. As she notes, however, answering the question of whether such restrictions may be consistent with democratic principles doesn’t resolve the question of whether such restrictions are a good idea. If I read her correctly, she has revised her earlier view (grounded in speech-act theory and Ronald Dworkin’s functionalist conception of limits on participation that may actually improve the health of a democracy) to a more facts-and-circumstances—and far less bright-line—approach. “My argument thus arrives at this: threats to democracy differ based on a country’s governance and political culture” she writes. “The usefulness of restricting participation could be minimal or non-existent, which should be taken into consideration by democratic theorists.”
I appreciate Ghorayeb’s eventual recognition that coming up with sound bright-line rules about restricting democratic participation can be difficult, as when she writes: “Because I had defined an antidemocrat as someone that wishes to restrict the democratic participation of a socially salient group, what counts as ‘socially salient’ may be easily manipulated.” She’s also right to acknowledge that antidiscrimination law can be misused to suppress what might be democratically valuable speech.
But I don’t think we need to abandon altogether the search for clearer general rules to the question of when antidemocratic speech and actions can be limited. Plus, I’m discomfited by her dismissal of President Trump’s various antidemocratic pronouncements and threats as not so big a problem because his impulses and initiatives “fizzled out,” as she puts it. A more effective president who shares Trump’s antidemocratic views might well be more successful at undermining our democracy. This means that the proper lesson to learn from Trump’s tenure shouldn’t be that our institutions are so inherently robust that no would-be autocrat can raze them. Instead, the lesson should be that although we have been blessed (if that’s the right word) with an antidemocratic president whose chief virtue has been his incompetence and lack of focus, we should not assume that we’ll remain so blessed going forward. After all, the world has no shortage of would-be autocrats.
For this reason, I think we can and must come up with a better principle for responding to antidemocratic individuals and factions. This is something I explored in my Charlottesville-riots reflection in 2018. In that essay, I underscored that Popper in The Open Society is advising democracies to tolerate even antidemocratic discourse as an initial response. As he puts it, “… I do not imply, for instance, that we should always suppress the utterance of intolerant philosophies; as long as we can counter them by rational argument and keep them in check by public opinion, suppression would be most unwise.” A well-ordered democratic society must have reasoned discourse and debate as its underpinning. This entails, to be frank, the possibility that even the most corrosive criticism from antidemocrats may make valid points and deserve a reasoned response. It’s no surprise to any thoughtful person that democracies frequently make bad decisions; the test a democracy is whether it can learn from criticism of those bad decisions.
And it’s here that Karl Popper’s theorizing about open societies merges with his paradigm of “conjectures and refutations.” (He says as much in his first “addendum” to The Open Society, in which he explains that recognizing our own human fallibility when it comes to recognizing “truth”—which turns out not to be true at all once we learn more—doesn’t require that we abandon the idea of objective truth altogether.) A democracy is more robust when it incorporates mechanisms that require it to hear criticisms and recognize its mistakes, big and small.
And even antidemocrats may, like stopped clocks, be right twice a day—when those criticisms are right, democracies do best to respond by demonstrating their own flexibility and willingness to adapt. So giving even antidemocrats a hearing is the right choice—at least initially. It’s only when the antidemocratic forces take direct action (which may, on occasion, include the “speech acts”—or “tweet acts”—of incumbent politicians) that we need to give attention to whether antidemocratic behaviors require something stronger than reasoned refutation.