Judicial Technocracy in America: Part Two

This article is the second installment in a five-part series devoted to American constitutional interpretation.

Today we tend to blithely assume a sanguine coincidence between the rule of law and the rule of men—democracy is, after all, the rule of the people and as a constitutional democracy we also enjoy the rule of settled law. Aristotle could at least reasonably raise the question “whether it is more advantageous to be ruled by the best men or the best laws” (Politics, 3.15) but today the very issue strikes us as alien; in fact, we take it for granted that democracy is the regime most consistent with law and criticize despotic regimes for insufficiently respecting the rule of law and the will of the people interchangeably. Nevertheless, it’s fairly obvious how democracy and the rule of law exist in a tenuous relation with each other: settled law, however democratically determined and transparently promulgated, has the function of constraining the will of the people. One can go as far as to say that traditionally the rule of law was meant as a counterpoint to the dangers of an untethered popular will—Aristotle suggests that democracy very well might be the regime that contains within it the most fundamental antipathy to the authoritative status of law (Politics, 4.4-6, 6.2-5). Of the many criticisms he levels against democracy, only fourth best among six possible regime types, is that its emphasis on freedom encourages the “license to do whatever one wants” and therefore “is unable to guard against the paltriness that is in all human beings” (Politics, 1318b39-40). In other words, democracies have laws but those laws tend to lack the authority to engender obedience—it undermines the “true reverence and fear that belong to the free” (Politics, 1331a35-41).

In Plato’s Republic and his Laws, Socrates actually identifies the same characteristic license of democracy as part of its virtue—its emphasis on freedom and a diversity of human types makes it an attractive model for the philosopher—it provides both a hospitable place for him to reside “alone without restraint” (Laws, 1.642c-d) and a kaleidoscopic display of all the different and heterogeneous human types. Although surely a rhetorical exaggeration, the tension between freedom and law in democracy inspired Socrates to label it the “most beautiful all regimes” not because of it political legitimacy, justice, or virtue but rather because its hospitableness to “all sorts of human beings” makes it a kind of compendium of all the different regimes—it has contained within itself “all the regimes”. Democracy is such a “useful place to search out the regime” because it is “decorated with every disposition” and accords the philosopher the liberty to “organize his life privately in whatever way pleased him”.

However, the central virtue of democracy is also its self-destructive vice—the freedom that typifies democratic life is corrosive of the reverence of the law, fear of authority, and the salutary sense of shame necessary to sustain a regime (Laws, 3.698b-701e). Since democratic freedom expresses itself as a liberation of private life from the unwieldy civic obligations of public life, it repudiates the centrality of honor so important to the organization of aristocracies, oligarchies, and timocracies. Also, honor is a public mechanism that helps to regulate private conduct and presupposes a publicly recognized order of rank—for one to give honor to another entails the legitimacy of political superiority. However, democracy distributes “a certain equality to equals and unequals alike” (Republic, 558c4-6) undermining the distinctions among men regarding virtue and the honor differentially rewarded for its exercise.

According to Socrates, freedom is certainly not identical to virtue and when elevated above all other political principles vitiates the obedience to law and the moral conditions requisite to it. It is not merely that democratic citizens are free to pursue or neglect political office—Socrates actually suggests they can freely choose to fight in war (Republic, 557e2-558a2). If the only rationale for a regime is unlimited individual liberty, then both ordinary obligation and extraordinary sacrifice must appear to be unpalatable, even indefensible demands. The problem with democracy is the hyperbolic lionization of freedom ignores, even denigrates the restraints and bonds that make political life possible. In a strangely prescient way, Plato anticipates the criticism of democratic rights Marx forwards in On the Jewish Question: the apolitical character of universal rights, and its inclination to loosen the social ties that are indispensable to community, destroy the possibility of democracy to become a sustainable political arrangement.

Plato largely treats democracy as a degenerate state of chaos that is little more than the decayed result of oligarchic greed and a prelude to eventual tyranny. What makes democracy such a salubrious environment for philosophy—its lack of uniformity and the freedom from authority to interrogate the law—is from a political perspective a symptom of irresoluteness and frailty. The licentiousness democracy feebly disguises as liberty overwhelms the respect commanded by the law’s prohibitions. The democratic man acknowledges the law, begrudgingly unless its enforcement tends to his private advantage, but denies that its authority eclipses the sovereignty of his own individual freedom. The friendliness of democracy to philosophy is the flip side of its incompatibility with stable law—the problem of the relation between democracy and law in its classic formulation is a precursor to the modern difficulty with reconciling the autonomy of the a-political individual with the unavoidable heteronomy of political life. When freedom understands itself as an end in itself, the law ceases to be an instrument of order and becomes a weapon of rivalry and competition. Dissenting from his more famous father’s encomium of Athenian democracy, Pericles’ son captured this criticism of the democratic type succinctly: “In both public and private gatherings, they are the most quarrelsome of men; they often bring one another to trial and would rather compete with one another than cooperate. They treat matter of the public as foreign but fight battles over these concerns and take the greatest pleasure in possessing the skills requisite for such strife” (Xenophon’s Memorabilia, 3.5.16-17).

As will be examined later in the essay, part of the problem with the role of the judiciary in America today is while we take for granted the compatibility if not mutual dependence of democracy and law the distance between what the law commands and what the people will, or to put it in more old fashioned terms, between who rules and who obeys, opens up the space for considerable controversy and discontent. While we often complain reflexively, and not always unreasonably, that our judiciary is far too undemocratic, the Framers followed Montesquieu in making our judiciary independent of the popular will precisely so it could remedy the defects of democratic rule; the sequestering of the judicial branch from the partisanship and self-interest of the people was understood as a guarantor of the impartiality of the rule of law. There is certainly an erosion of the authority traditionally understood to be necessary for the law to be effective today just as there was in Athens but the modern problem is complicated by the fact that we now worship at the altar of a new authority-scientific reason has replaced tradition and religion as that which legitimates this or that rule. The classical problem of authority is now exacerbated by its marriage to the modern problem of technology—modern science is only ambiguously democratic and given its view of progress only ambiguously deferential to settled law. Even more problematically, it might contain within itself, however sometimes surreptitiously, preferences of its own regarding who rightfully commands and who should in turn be commanded.

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