DEMOCRACY'S DISCONTENT: POPULISM'S PERILS AT HOME AND ABROAD
Gidon D. Remba
"Liberal democracy in what used to be called 'the West' is in decline…It has become…a simulacrum of political freedom rather than the real thing…." Jeffrey C. Isaac, Democracy in Dark Times
"There is no tyranny more dangerous than an invisible and benign tyranny, one in which subjects are complicit in their own victimization…" Benjamin Barber, A Passion for Democracy
In the furor over the rise of Jörg Haider's racist and xenophobic "Freedom Party" to the Austrian coalition, it is widely forgotten that America too slouches towards its own special pit of democratic illiberalism. Unfettered political and market forces—free only because we have thus far refused to constrain or direct them—are driving bold new applications of information technology, raising the specter of unprecedented corporate and state invasions of individual privacy. Conventional wisdom expects public outrage to stanch the hemorrhaging flow of personal data, perhaps unfolding privacy as the sleeper issue of the fall presidential and congressional campaigns. But the problem runs much deeper.
In many areas the public is likely to consent—through a democratic process—to infringements of individual liberties in exchange for desired benefits, like Jacob trading his birthright for a mess of pottage. Emerging patterns of Internet use are rendering a constitutionally enfeebled electronic direct democracy less and less remote, in the view of a growing number of legal scholars and political observers. E-balloting, already the practice in presidential primaries in several states, will spread to national elections; digital referenda cannot be far behind. Such prognostications might be more easily dismissed were they not emanating from sober, well-schooled voices. More worrisome still is that they have often passed the threshold from prophesy to advocacy. These ill winds are fanned by populist promoters of local empowerment who would barter away individual rights to privacy and constitutional protections against unreasonable search and seizure as weapons in the battle against crime and catastrophic terrorism, threats which the federal government believes loom larger than ever before.
May the rights of the individual, and the dissenting minority, be sacrificed for the welfare of the community? That minority will consist, more often than not, of foreign immigrants, both citizens and those seeking its privilege, and members of the homegrown underclass already suffering from economic, political and social disabilities. Those who believe such questions were long ago settled (and answered in the negative) will be surprised to learn that they are being subject anew to radical reexamination by prominent constitutional revisionists in the most venerated temples of jurisprudence in the land.
While the forces at work are both various and insidious, their champions labor under a common intellectual mistake: the idea that the moral basis of democracy is popular self-government by majority rule. Yet doesn't every schoolchild know that democracy is government by the consent of the governed? In this banal truth lurks the most vexing problem of political philosophy; on its resolution rests the fate of liberal democracy. Equally familiar is that democratic decisions by majorities must, in a liberal republic, be bounded and informed by a constitution which vouchsafes to every individual, including minorities who may dissent from the majority's will, a set of inviolable equal rights and liberties. But even the most fundamental moral principles of the constitution on which our polity's legitimacy rests must be seen as deriving ultimately from popular sovereignty, from the consent of the people. Here's the rub: How are we to respond when the people opt for an illiberal law, government or constitution, as Germans did in the 1933 elections—or a regime which flirts rhetorically with illiberal, anti-humanitarian politics?
Liberal democracy is vitiated not only by such electoral outcomes, but by the deeply flawed objections of the critics of anti-Austrian sanctions. It is they who legitimate dangerous democratic choices at home and abroad by spinning misbegotten populist apologetics for electoral democracy. These intellectual currents are reinforced, in turn, by a rising tide of illiberal economic and political waters. The wholesale marketization of American life is "assaulting and undermining democratic politics—ideologically and institutionally…weakening state, polity and community alike," laments Robert Kuttner in Everything For Sale: The Virtues and Limits of Markets. It behooves us, then, to get straight about the connection, so contested of late, between human rights, constitutions and democracy.
Must We Respect Illiberal Choices?
The ascension of Haider's "Freedom Party" to power prompted the fourteen other nations of the European Union, plus Canada, Israel, and to a lesser extent the United States, to impose now-fraying diplomatic sanctions against Austria. This unctuous Austrian atavism has not evolved in a Continental vacuum. Ultra-national far right parties, fed by broad anti-immigrant sentiment, flourish in other European Union countries, notably Belgium, France, Denmark, Italy and Switzerland. In the wake of the campaign finance scandal surrounding former German Chancellor Kohl, the center-conservative Christian Democrats reached a moral and financial nadir, raising palpable fears that the resurgence of Austria's far right could be repeated in Germany. A foundation associated with the Christian Democrats has awarded the Konrad Adenauer Prize to German historian Ernst Nolte, who has argued that given Jewish support for Bolshevism, Hitler may have had "rational reasons" for attacking Jews during the Holocaust. "With Haiderism thriving in neighboring Austria, the ground has become fertile in Germany for a nationalist and right-wing intellectual awakening," observes the New York Times' Roger Cohen from Berlin.
Yet the steps taken by many Western governments against Austria provoked smug denunciations from some liberals and conservatives, proving once again that politics makes strange bedfellows. From American Civil Liberties Union president Nadine Stossner, and Ian Buruma in the New York Times, on the liberal left, to the Wall Street Journal's Jacob Heilbrun and George Melloan on the right, the critics crow in unison that the Western response to Haider is "authoritarian." (Heilbrun's essay was dubbed "The EU, Not Haider, Threatens Austrian Democracy.") The democratic West is guilty, they charge, of disrespect for the democratic choices of the Austrian electorate. The ACLU's Stossner went so far as to equate the object of the West's outrage—racist, neo-fascist ultra-nationalism—with the West's very methods of protest: "To protect democracy and human rights," she demurred, "the Europeans have adopted the very authoritarian methods that they say they are acting to forestall." When national security advisor Sandy Berger explained President Clinton's recall of the U.S. ambassador to Austria, Melloan, criticizing Berger's point that "Democracy is about more than elections; it is about shared values," took common sense out for a holiday with the claim that "suppressing the expressions of values by some individuals with the purpose of establishing a polity with 'shared values' has a name. It's called totalitarianism." The critics not only huff in Orwellian doublespeak confounding authoritarianism and totalitarianism with public criticism and sanctions by liberal republics against racist leaders, democrat and autocrat alike. They are blind to the warp of liberal democracy's moral texture, woven as it is from the fabric of human rights. They have forgotten that racism, populism and ultra-nationalism, all essential to Haider and Freedom's politics, are filaments in the cloth of fascism, and that fascism and popular democracy are by no means enemies.
When Ian Buruma cavils, "as long as the democratic nation-state persists, people should have the right to choose their own governments, even people whose views many of us find distasteful," one would imagine that Western armies have occupied Austria, barred racist parties from running in elections, and forced the Austrian people at bayonet's point to establish a new, more enlightened liberal government and constitution (much of which the Allies actually did to the vanquished Japan and Germany after the Second World War). It bears reprise: The EU is not taking any steps to curtail Haider's freedom of speech. As a French member of parliament smartly noted: "I am not for hampering Haider's free speech or even questioning the right of Austrians to vote for him…But I do not want to sleep in the same bed and make legislation with him for Europe." Nor, I imagine, does he wish to see other nearby electorates swept along in a continental undertow when the burgeoning interdependence of economic and legal ecologies, bound more closely by global communication and information networks, blows cultural and political currents across national borders with gale force. In a widening arc, the decisions taken in one state precipitate, like acid rain, across the landscape of other societies. Neighbors, both near and far, can no longer reasonably be expected to remain mute or impassive when their futures are so intertwined.
What are we to make of the claim that the West should respect the democratic will of the Austrian electorate? Let's set aside for now the factual question of whether EU sanctions will deter or encourage the spread of extremist politics in Europe or Austria itself: the early evidence is ambiguous on this score, suggesting that they may have had salutary impact elsewhere in Europe but, for the short-term, possibly goading more Austrians to support Haider in a backlash effect. While Robert Wistrich, the European Jewish historian, proclaims to the readers of Commentary (April 2000) with oracular certitude, and scanty evidence, that the sanctions will backfire, Andrew Nagorski, Newsweek's Berlin Bureau Chief and Senior International Editor, reports in Foreign Affairs (May-June 2000) that support for the Freedom Party "remains about the same as before the sanctions." If he is right, the backlash has been decidedly short-lived. And newer opinion polls suggest that Freedom's support has indeed declined from 27% to 22%.
I want to focus instead on the charge that whatever their effects, public criticism and diplomatic sanctions against antiliberal but democratic governments represent a kind of authoritarianism or totalitarianism, trampling on the popular sovereignty of the people—the demos whose will democracy is supposed, so it is thought, to express. The trouble with this way of understanding democracy is that it turns on its head the true connection between self-rule and human rights, and so misappropriates the moral basis of the liberal republic. It feeds on the hegemonic laissez-faire fiction of the electorate as a pure and sacrosanct free market, while state intervention, even where only symbolic, is perforce an execrable evil. It is a mistake which, uncorrected, hampers the struggle to stem not only the proliferation of anti-human rights ideologies abroad, but the withering of our own vaunted constitutional imperatives at home.
For the cheerleaders of these trends, among them former Clinton adviser Dick Morris in his nouveau-tech libertarian ode, Vote.com: How Big-Money Lobbyists and the Media are Losing Their Influence, and the Internet is Giving Power to the People (Renaissance/St. Martin's, 1999), subscribe to what we might call the populist fallacy. They manage to avoid the Scylla of special interest politics, under the hypnotic sway of its siren song "one dollar, one vote," by falling into the arms of the equally loathsome Charybdis of direct democracy. While the judiciary surely has its defects (witness the Supreme Court's unsound rulings on the constitutionality of capital punishment and campaign finance contribution, to name just a few), they have proven over time to be far better guarantors of rights than popular referenda, which have often been regressive. Morris imagines that once on-line referenda have eviscerated Congress and courts, we'll be able to put Humpty Dumpty back together again. The technological, cultural, political and market forces Morris describes are both real and revolutionary, and he is far from alone in identifying them. It is incumbent on government, information technology companies and the public to proactively address this urgent problem now, developing new processes and forums—in both real and virtual neighborhoods—for informed deliberation about the common good to insure that electronic politics become a tool for rejuvenating the republic, not dismantling it. But it is as unlikely that business, bureaucracy, or a poll-intoxicated "leadership" will arrest democracy's decline as it is that the public will spontaneously mobilize in the name of an embattled counter-majoritarian dream.
Urban Crime and Impoverishing Respect for Privacy
The populist mirage still haunts the interstices of our politics, rising like a golem, now here, now there. In a new book of essays titled Urgent Times: Policing and Rights in Inner-City Communities (Beacon Press, 1999), legal scholars Tracey L. Meares from the University of Chicago and Dan M. Kahan of Yale contend that the existing preferences of a local elective body, in this case the Central Advisory Council of the squalid housing projects run by the Chicago Housing Authority (CHA), should determine how the U.S. Constitution's Fourth Amendment protection against unreasonable searches and seizures by the state should be understood for that community. The title of their lead essay tells all: "When Rights are Wrong: The Paradox of Unwanted Rights." Part of the New Democracy Forum series, it is printed with replies from a dozen prominent legal thinkers, and a preface by the Rev. Eugene F. Rivers, 3d, a Boston minister who organized churches and local police to work in tandem to transform a gang-infested neighborhood. If the local representatives, including the aldermen of the Chicago City Council, enact a law permitting warrantless and indiscriminate searches of all apartments in CHA buildings, in a bid to confiscate more illicit guns and drugs and arrest more of their owners, judges should, argue Meares and Kahan, defer to such democratic majoritarian decisions, so long as "the community in question is participating in the burden that a particular law imposes on individual freedom."
A bevy of civil libertarians, from Alan Dershowitz to Carol Steiker, mount a heroic defense of the view that constitutional rights are inalienable, not subject to sale, or contractual bargaining, in exchange for other benefits. Meares and Kahan, seconded by Jean Bethke Elshtain in her concurring essay, give short shrift to the idea that people might ever be mistaken in their judgments as to the respect they owe themselves and others. On their account, such mistakes are inconceivable, since any majority decision by a community's elective body which meets their minimal criteria of burden-sharing will justify the chosen interpretation of the constitutional rights of the citizens they represent. Elshtain, like Meares and Kahan, dismisses much too casually the notion that poverty, lack of education and opportunity, and other forms of deprivation, can deform people's preferences, wrongly equating this with what she calls the "the Marxist canard about false consciousness."
But the evidence of preference deformation is incontrovertible. Amartya Sen, applying its insights to the measurement of economic well-being in developing countries, reminds us in his recent collection of essays, Development as Freedom, of the "underdogs in stratified societies, perennially oppressed minorities in intolerant communities, traditionally precarious sharecroppers living in a world of uncertainty, routinely overworked sweatshop employees in exploitative economic arrangements, hopelessly subdued housewives in severely sexist cultures. The deprived people tend to come to terms with their deprivation because of the sheer necessity of survival, and they may, as a result, lack the courage to demand any radical change, and may even adjust their desires and expectations to what they unambitiously see as feasible." In Race Matters, Cornel West has described the "profound sense of psychological depression, personal worthlessness, and social despair so widespread in black America."
In a study on Women and Human Development: The Capabilities Approach, a new contribution to feminist internationalism and human rights theory, Martha Nussbaum cites the classic testimony of Rabindranath Tagore's "Letter from a Wife," poignantly confirmed in her own field work with women in India, showing how "habit, fear, low expectations and unjust background conditions deform people's choices": "The doctor was rightly upset [about the unsanitary conditions in the women's quarters]; but he was wrong in one respect. He thought that it was a source of constant pain for us. Quite the contrary…To those with low self-regard, neglect does not seem unjust, and so it does not cause them pain…Whatever the condition that you kept us in, it rarely occurred to me that there was pain and deprivation in it." In his contribution to the question, Is Multiculturalism Bad For Women?, Cass Sunstein observes: "People's 'preferences'—itself an ambiguous term—need not be respected when they are adaptive to unjust background conditions; in such circumstances it is not even clear whether the relevant preferences are authentically 'theirs.'"
When the CHA case was taken to court by tenants who refused consent to the searches, Judge Anderson held that the resident councils' support for the searches clashes with an independent constitutional ideal of individual dignity and privacy. He urged them to reclaim their "self-respect and respect for other human beings." If the direct democrats have their way, every judge would defer to her community's popular democratic will and its peculiar valuation of its members' privacy, as expressed in legislation, referenda, local ordinances or even unreflective opinion polls and ad hoc comments in the media, on Kahan's latest proposal. As John Rawls famously maintained in The Theory of Justice, the value of civil liberties is not exhausted by the advantage we believe we gain by honoring them, when compared to other benefits we might enjoy. Our basic rights and liberties hold intrinsic, though not absolute, value; their violation is wrong in itself. But can we grasp concretely what these rights and liberties amount to without situating them in what Kahan calls "some field of shared understandings, practices and norms?" And, presses Kahan, doesn't that simply pit the social conventions to which judges subscribe against the equally worthy, perhaps superior, conventions of some local communities? Decidedly not, if we hold, as I believe we must, that human imagination has the power to critically assess the social conventions of our own communities by ideal standards. These are the standards we would choose when, unencumbered by oppressive circumstance, we envision ourselves as belonging to the community of mutually respecting moral persons. It is that field of shared understandings, practices and norms, emanating from, yet at the same time transcending, local happenstance, to which we must appeal.
Meares and Kahan's valorization of democratic self-government overlooks that citizens have the right to such self-rule, but not to subject every constitutional principle to majoritarian negotiation under existing preferences, and certainly not to do so by the lights of each local community. We should promote democratic autonomy within a range that is suitably circumscribed, not as an absolute value. The proper response to public housing resident Alberta Munlyn's complaint—"I understand the right to privacy, but when my baby can't play outside and your baby can't go to school without being shot and killed, what about their rights?—is not to permit local or even national elective bodies to decide when Fourth Amendment violations of privacy occur. Such judgments are reliable only when alive to the full range of alternatives, the principles at stake, and formulated under fair conditions of deliberation. They must raise the kinds of questions never broached when the CHA council decided to invite mass police searches, on behalf of all CHA residents, including those who withheld consent: Are there other ways to quash gang violence, drug-dealing and murder without paying in the precious coin of civil liberties?
In the aftermath of the Diallo tragedy we have come to learn that cities like Boston and San Diego succeeded in doing just that, while enlisting local religious leaders like the Rev. Rivers and neighborhood volunteers to work in concert with the police in a cooperative effort. Through "community policing," they avoided inflaming the deep wound of mistrust between minorities and the police with the heavy-handed, racially tainted tactics of the NYPD and LAPD, which raise the odds that cops will find themselves in a position to shoot an innocent person—all-too-often an immigrant—and that he in turn will, from fear or error, fail to heed their commands. (For compelling evidence, see "Cities Cut Crime Without New York's Conflict," New York Times, March 4, 2000, and "Citizens as Allies: Rethinking the Strong Arm of the Law, NYT, April 9, 1999.)
There is, it seems clear, a more just, responsible communitarianism than that on offer from Elshtain, Meares and Kahan. Even Amitai Etzioni, the movement's founder, eschews "random searches of homes" in Rights and the Common Good: The Communitarian Perspective (1995). In The Limits To Privacy (1999), Etzioni implores us to combat dangers to communal well-being "without first resorting to measures that might restrict privacy;" and "to the extent that privacy-curbing measures must be introduced, a communitarian society makes them as minimally intrusive as possible." Indiscriminate mass home searches fail decisively on both counts, Etzioni concurred when I posed the question to him recently. Majority support and community consensus by themselves are tenuous grounds for justice, weak reeds unable to bear the weight required of arbiters of constitutional rights, he argues in The New Golden Rule: Community and Morality in a Democratic Society (1996). When a local or national public opts, through democratic procedures, to countenance severe and needless intrusions on its members' privacy, it flouts the artful balancing of rights and the common good which Etzioni demands of a responsive community. It is the role of the courts, Etzioni insisted to me, to perform that interpretive act, and the fact that the public wishes to trade a given configuration of liberty in exchange for a perceived enhancement of communal well-being, has neither ethical nor constitutional standing.
A worthy decision process would raise questions the local councils in the housing projects, or the city council, are ill-suited to address: What is the impact of permitting such indiscriminate, warrantless home invasions by CHA police on the protection of individual privacy in society at large? Can the deflation of dignity be quarantined once we treat civil liberties and rights, our own no less than others', as fungible wares for sale in the marketplace? Will the public's conception of privacy change, so that when state or corporate power is used in future for the appropriation of confidential information about individuals, support for a robust ideal of individual privacy will erode? The potential for doing so through electronic means is growing exponentially as vast tracts of personal data, including our medical and financial records, our buying habits and interests, are becoming more accessible to marketers, banks, insurance companies, and other corporations. Employers are increasingly monitoring not only the electronic mail but the very computer keystrokes, mouse-clicks and cursor movements of their employees by means of spy software. In The Control Revolution: How the Internet Is Putting Individuals In Charge and Changing the World We Know, Andrew L. Shapiro cites a report released in April 1997 by a presidential advisory panel which warned that "privacy could emerge as a market commodity in the Information Age."
The Clinton Administration and Congress have done little but defer to the unreasonable expectation that the industry, the market, will adequately self-regulate, instituting mechanisms which will accord proper respect to privacy. The President has belatedly come to recognize this in a speech before the Aspen Institute, whose Internet Policy Project is headed by Shapiro (NYT, March 4, 2000). It remains to be seen whether this epiphany will be translated into law, and the law sufficient to the task; thus far Congress remains an immovable object. And why will it move when its members remain hooked on finance from many of the very companies—the insurance and financial services industries, info-technology and media enterprises, mass marketing conglomerates—whose profits would be most burdened by muscular privacy regulation?
Lawrence Lessig concludes his odyssey, Code and Other Laws of Cyberspace, with this dark prophesy: "We will watch as important aspects of privacy and free speech are erased by the emerging architecture of the panopticon"—the vast array of databases collecting ever-richer troves of information about us, that protean army of Little Brothers whom we pray will not choose to merge assets—"and we will speak, like modern Jeffersons, about nature making it so—forgetting that here, we are nature." Will the utilitarian notion that privacy may be traded for maximizing desirable net social outcomes (e.g., reducing crime) abet the widely noted market commodification of privacy already occurring as a result of the Internet and consumer e-commerce? Will this result in unjustifiable inequities between more and less powerful social groups, so that the better advantaged will be able to afford more privacy, while the less advantaged will feel a need to trade theirs away—"voluntarily" and "freely," in exchange for desired social gains? Shapiro rejoins: "Just as we don't allow people to sell their vote, their body parts, or themselves into slavery, maybe we shouldn't allow them to sell their privacy." Much the same may be said of allowing people to trade away their Fourth Amendment rights.
More radical questions ensue: What will be the impact on American social norms of further empowering the police to trample individual liberties, especially of underprivileged minorities, in pursuit of collective security, rather than attacking the root causes of drug-dealing and gang activity in the urban ghettos of our nation? How many more Amadou Diallos must die? How many more "unfortunate police errors" will be vindicated? Does justice not demand that we raze the projects where gang crime thrives, dispersing now-besieged residents throughout the city and suburbs in livable and unsegregated housing unlike the CHA tenements, than set a precedent allowing such searches and the understanding of the Fourth Amendment which underwrites them? The CHA and the U.S. Department of Housing and Urban Development have started down this very path, with a five- to seven-year plan to demolish 51 unsalvageable project high rises in Chicago, consisting of what the CHA describes as "18,000 obsolete, distressed housing units plagued with crime and drugs," where residents live in "untenable conditions," replacing them with new low-rise dwellings. Fully 15,000 of these high rise units were built in a flawed "open gallery" design which, "coupled with lack of maintenance" and virtually no improvements since their construction in the 1950's, results in what the CHA admits is frequent failures of heating systems and of elevators exposed to the elements during the harsh winter months. It will also relocate 6,000 families to private housing (out of the 130,000 citizens it "serves"), subsidizing them with rent vouchers. The $1.5 billion plan has received extensive input from the residents, who have participated in over one hundred town meetings, and their ongoing participation has been incorporated into its execution. Here we see community self-government at work without putting constitutional interpretation into local hands.
But these first steps remain exiguous: not only is the pace of relief glacial for these people due to under-funding, but the subsidies are so niggardly that relocated families often end up in poor, segregated neighborhoods, violating the fair housing laws, as a suit filed against HUD by the Legal Assistance Foundation of Chicago argues, and as the CHA candidly acknowledges in its "Plan for Transformation" (January 2000). And because the agency still has insufficient federal funds to renovate or replace all 38,000 units, it must engage in triage. Progress may be delayed if, as expected, there are not enough low-rent apartments available in the private rental housing market for voucher holders, creating a Catch-22. Nor does the initiative respond to the urgent social and economic needs of the urban and ex-urban ghettos throughout the nation where impoverished minorities and immigrants frequently settle—the very neighborhoods to which the vouchers will drive tens of thousands of project dwellers. While other cities sometimes have sufficient low-rent housing for relocating project tenants, Republicans in Congress have slashed the number of vouchers they will fund by half from President Clinton's request, from 120,000 to 60,000, despite a nationwide waiting list of 600,000 families. The wait has stretched to ten years in Newark and Los Angeles, seven years in Houston and five years in Chicago and Memphis. Even George W. Bush has more backbone than Meares and Kahan when he lambastes the Republican Congress for balancing the budget on the backs of the poor.
Perhaps the subtext of our Constitution is this: when our prior social and economic choices press us to the point where waiving civil liberties seems unavoidable, we are obliged to take whatever morally permissible steps are called for, no matter how demanding, to free ourselves from having to make new choices from which we are forbidden by a strict moral requirement. Meares and Kahan's there-is-no-alternative realism noir represents nothing so much as a failure of moral imagination and human conscience. They would sooner redefine away cherished liberties in a communitarian sleight of hand than take a stand on principle and use their moral authority as citizens, activists and jurist-scholars at the nation's most prestigious law schools to help mobilize Americans' sense of justice and shame over the obscene conditions of federally-funded and city-managed public housing. Nor will they halt their ideological juggernaut against the "obsolescent 1960's conception of rights"—which Jeremy Waldron rightly reminds us is in truth the 1760's conception of rights as inalienable by their bearers, who are their stewards rather than owners—to commend the enhanced partnership of citizens and police which has proven effective in so many localities. The new CHA plan incorporates just such a strategy, coupled with tenant patrols, augmented social services, new mixed-income housing, property management by experienced private real estate firms, and the hiring of hundreds of new officers and private security guards, until the demolition and reconstruction of what the Chicago Tribune calls a "hellish" environment is complete. The "transformation plan," if executed wisely and fairly, will eventually uproot the very conditions which led some tenants and jurists to clamor for diluting constitutional protections to privacy, while adopting interim measures to reduce the pressure until it is fully realized. Smitten with the dulcet tones of communal union, the romance of group autonomy, political and legal scholars like Meares, Kahan and Elshtain have ignored the practical wisdom of moving project dwellers out of the projects and into mixed-income private housing through voucher subsidies, of constructing more livable public accommodations no longer restricted exclusively to low-income tenants, of demolishing unlivable high rises and replacing them with new low-rise habitable buildings, and of integrating mixed-income public housing into city and suburbs.
Meares and Kahan's belief that "anyone who listens to project resident Alverta Munlyn's explanation of why she supports building searches…will come away with immense respect for [her] local knowledge," is wide of the mark. No one doubts her local knowledge; but such knowledge can be acquired by others, who can review some of the considerations raised above, as well as others, so that a fuller, more adequate review will take place, whose proper venue remains the federal courts and the Supreme Court of the United States. The Court must decide not only in light of what it takes to be the best moral reading of the Constitution, as Ronald Dworkin has it, but in dialogue with the reflective judgments of citizens and legislators. A democracy based on equal respect for persons will treat privacy as an integral part of that respect, for privacy is essential to personhood. In such a republic, privacy must remain a constant value across all persons and so a constitutional pillar protected at the federal level. In Judge Anderson's words, "All Americans are bound together in law and in fact. The erosion of the rights of people on the other side of town will ultimately undermine the rights of each of us." It may well be Alverta Munlyn's fear, not her knowledge, and her all-too-real sense of powerlessness, which impede a more balanced and considered inquiry by her fellow council members.
Civil Liberties Through A Glass Darkly: Catastrophic Terrorism
In an ironic twist befitting the Sophoclean stage, the decision we brave in the bowels of the urban ghetto now burdens us all on a new plane, writ large: how to confront the prospect of catastrophic terrorism with biological, chemical or nuclear weapons within the United States. The American public is increasingly urged to reevaluate the priority of civil liberties against the need to provide for the security of citizens, or face the potential of drastic retrenchment of these freedoms, in the event catastrophic terrorism cannot always be preempted, as experts agree it cannot. Following a spate of homicidal attacks by loners in the grip of racist, anti-Semitic white supremacism, some, most prominently B'nai Brith Anti-Defamation League chief Abraham Foxman, have called for "recalibrating the balance between civil liberties and national security" in the face of the growing terrorist threat of weapons of mass destruction to American citizens.
President Clinton has stated that “it is ‘highly likely’ that a terrorist group will launch or threaten a germ or chemical attack on American soil within the next few years.” A federal advisory commission has released a report warning that "'the most serious threat to [American national]…security may consist of unannounced attacks on American cities' by terrorist groups using germ warfare….In one of its grimmest predictions, the report added, 'Americans will likely die on American soil, possibly in large numbers.'" (NYT, September 21, 1999). The National Commission on Terrorism, established by Congress after the twin embassy bombings in Africa, reiterated similar warnings in its latest report, summarized at a White House press briefing on June 5 this year. The commission has issued controversial calls for waiving human rights concerns in recruiting terrorist informants, "monitoring" foreign students studying in the U.S., and setting up a federal committee to set the rules under which the President could authorize the Pentagon and Department of Defense to take over from civilian bodies like the FBI and FEMA (the Federal Emergency Management Agency) as the lead agencies in responding to a catastrophic attack on U.S. soil (none of which did the New York Times see fit to print; the Washington Post provided full coverage). "The threat is changing, and it's becoming more deadly," said L. Paul Bremer III, the commission's chairman.
If the calls for rethinking the balance between civil liberties and security are already being sounded when the number of victims is still relatively low, and the perpetrators are on the fringes of American society (e.g., Christian Patriots), how much will the pressure increase for the government to invade privacy, engage in indiscriminate searches and seizures overriding civil liberties, when the number of potential or actual victims is in the thousands, or hundreds of thousands, and when foreign perpetrators have domestic supporters, who may be aiding and abetting them, among large minority groups like American Arabs and Muslims? Richard K. Betts, Director of National Security Studies at the Council on Foreign Relations and Professor of Political Science at Columbia University, and a member of the commission, typifies the swelling chorus chanting the mantra for trading more civil liberties away preemptively ("The New Threat of Mass Destruction," Foreign Affairs, January-February 1998):
U.S. law enforcement has been unbelievably lucky in apprehending terrorists…Those who fear compromising civil liberties with permissive standards for government snooping should consider what is likely to happen once such luck runs out and it proves impossible to identify perpetrators. Suppose a radical Islamic group launches a biological attack, kills 100,000 people, and announces that it will do the same thing again if its terms are not met. (The probability of such a scenario may not be high, but it can no longer be consigned to science fiction.) In that case, it is hardly unthinkable that a panicked legal system would roll over and treat Arab-Americans as it did the Japanese-Americans who were herded into concentration camps after Pearl Harbor. Stretching the limits on domestic surveillance to reduce the chances of facing such choices would be the lesser evil.
Betts fails to note that we may well end up with both: a state which has preemptively reduced basic liberties, then failed to prevent every attempt at catastrophic terrorism, leading a stunned and traumatized public, already accustomed to weakened protections for such freedoms, to press for mass round-ups of the "appropriate" minorities and immigrants. Civil liberties are not the only principles Betts is prepared to compromise in the name of national security. He counsels, with remarkable naiveté and even greater moral recklessness, that the U.S. reconsider its financial, diplomatic and military support for Israel and moderate Arab regimes—and, by implication, its pursuit of policies designed to foster the peace process—the better to discourage Islamic terrorists from targeting us. Once we abandon our Middle Eastern allies and the promotion of humanitarian political values and stability in areas beyond Europe and the Americas, and step out of Islamic fundamentalism's way, the heartland, so he imagines, will be safe once again (if not absolutely, then any gain in domestic security, intimates Betts, is worth the price of capitulation). No reasonable person should minimize the dangers of terrorism, or favor less than vigorous preventive activities by the nation's law enforcement bodies. Wanton invasions of the right to privacy or the liberty of minority groups without a reasonable basis for suspicion of a given individual, even if popularly approved in some localities, must not be among the arsenal a liberal democracy may deploy in this fight. This is so, as it is with the local councils of the Chicago Housing Authority and the Chicago City Council, who chose, through completely democratic means, to waive their own and their neighbors' constitutional rights to privacy, in an effort to more zealously fight crime and promote their collective security.
In the black public housing ghettos of Chicago, fearing for their lives and the lives of their children, a council representing the majority decides to waive the right to privacy of all, including a nonconsenting minority, by allowing the police to search every home for weapons and drugs in the belief that only so more lives will be saved. Under the dark cloud of biological, chemical or nuclear terrorism which our leaders are convinced will in time befall us, may a majority, through perfectly democratic means, sacrifice the liberty or privacy of an entire ethnic minority which may harbor members who aid the terrorists, on the reasonable belief that by overriding their rights we may stop more assaults and save more lives? Do not both impel some among us to uphold the community's engaging in a democratic process, through representatives who heed what may be a widespread popular preference, where the rights of a minority of nonconsenting members are traded for the greater good of the majority? Do we not find both abhorrent to human dignity? Should we not question whether such popular democratic decisions are truly consensual and morally tolerable?
Should we not insist on limits to what the people can "freely" do in a democracy, even in extenuating circumstances? Should those limits not be expressed in a constitution, refracted through an interpretive tradition, immune from the popular will, and in global treaties embodying publicly recognized, universally enforceable norms? Should the virtues essential for sustaining these values not be taught through an extensive program of civic education? If the answer to these questions is affirmative, should we tolerate any less the democratic revocation of a nonconsenting minority's rights in the black and Hispanic ghettos of America? Like Matrioshka dolls, as Bernard E. Harcourt has cleverly noticed in his reply to Meares and Kahan, there are minorities within minorities, as the dissenting project residents who sued the CHA remind us, and their dignity and basic rights must not be subject to the vicissitudes of the vox populi.
Democracy and Human Rights: The Golden Braid
In a liberal democracy we must be able to see even the most basic moral principles of the constitution as growing from the soil of popular sovereignty, the consent of the people. But who are "the people," and how does this "consent" take place? The idea that human beings possess equal rights to protection from genocide and massacre, trumping claims to national sovereignty, and to basic liberties, overriding the majority will, is not incidental to the notion that people have a right to self-government through free and fair elections. It is widely and mistakenly believed that the idea of democracy as popular self-government by majority rule is the more fundamental ethical norm. The moral basis of democratic self-rule is equal respect for each person as an autonomous being. It is this quality of humanness which fills us with awe. Of this common nobility Martha Nussbaum has written in Women and Human Development: The Capabilities Approach: "We see the person as having activity, goals and projects—as somehow awe-inspiringly above the mechanical workings of nature, and yet in need of support for the fulfillment of many" of her ends.
Without the material and social conditions necessary for maintaining good health, for example, most human purposes are frustrated, especially those whose fulfillment enable a person to take active part in the life of a community, through work, play, religious, cultural and political activity. The value of bodily integrity is not only that it makes other worthy pursuits possible; it is itself a part of a valued human life. This account of moral and political rights and responsibilities focuses not on the "normal functioning" person, but regards all human beings, including the disabled, as dependent in varying degrees on other people and on the conditions necessary for the realization of the basic human capabilities. Drawing from literature, myth, religion and philosophy, it begins from a cross-cultural understanding of what a "flourishing human life" is like, of what is essential for a life with dignity, around which various moral, religious and cultural traditions can converge, even despite their divergence over other elements of the good. It recognizes that every individual, given her distinctive circumstances and natural endowments, will require different measures of support from others to achieve a life that we would recognize as equally flourishing. (Hence to measure true well-being, quality of life, spanning continents, comparing lives in developing and advanced societies, or between genders, we must look not at aggregate quanta across an entire society like GDP, nor at people's preferences or satisfaction levels, but at what capabilities they are able to exercise given their overall environment. It is just this normative reconceptualization of economic welfare which Sen has helped institute in the United Nations' reports on international development.)
When we view ourselves and others through this prism, we adopt the moral point of view. As Jürgen Habermas has argued, most recently in The Inclusion of the Other and in his magisterial Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, human rights and popular sovereignty are "co-original." By this, means Habermas, the people who consent to a constitution must be those who think of themselves as free and equal citizens, as autonomous moral persons with equal standing. Yet these people are none other than us, as Rawls affirms, when we regard ourselves from a moral standpoint. Constitutional government does not depend on the will of just any people, or upon any expression of the majority's popular sentiment, no matter the conditions under which that will is formed or exercised. It requires a public which imagines itself through the lens of human rights. On the public correction of this mistake rests the fate of liberal democracy.
Liberal democracy as a form of political life is woven from two golden strands: on the one hand, the belief that citizens, as well as non-citizen immigrants, possess a set of basic rights as human beings and moral persons, protections and immunities which the state and if necessary, the society of nations, must guarantee to all under international law; on the other, the right of the people to freely elect its government, for sovereignty ultimately rests with the people, not with a king or special class of rulers. These rights are articulated in part in a constitution, and best secured through the uniformity of the federal courts, including the Supreme Court, under which legislative power, the will of the majority, is limited. Popular democracy, unbound by the moral bulwarks safeguarded by courts and by other constitutional republics acting as one to promote their core values, may lead to the erosion of basic rights at home, and the election of racist governments abroad, endangering minority rights.
Seeing through the populist fallacy is surprisingly easy. Some electoral democracies are notoriously illiberal, conducting free elections but suppressing the human rights of their citizens; due process of law is a mockery, torture and massacre of minorities routine. While there is an overall tendency for electoral democracies to increasingly respect civil liberties and human rights over time, we often find the one without the other. There is no necessary move, either in idea or reality, from electoral democracy, understood as government by popular sovereignty, to equal political rights and liberties. But the reverse does not at all hold. Once we recognize that all people have a basic right to respect, to equal protection under the law, and to an essential range of liberties, it is immediately apparent that the right of each citizen to have an equal voice in choosing her government is inescapably among these. And so we find that every liberal constitutional republic is electoral.
Fighting Fascism: The Moral Values of Liberal Democracy
Let us return now to where we began: neo-fascism and democratic sanctions. For liberal democratic states to censure racist political leaders in other countries—particularly in those with which they have formed a partial union based on shared constitutional principles—and to impose diplomatic sanctions upon them, is hardly authoritarian. It is, instead, an affirmation of the conception of equal worth and respect for the dignity of all human beings on which the constitutional values of liberal republics are founded. On one understanding of the First Amendment to the U.S. Constitution, the norm of free speech is thought to allow all forms of political expression, including anti-democratic, racist, even certain forms of Nazi speech. This is the gloss on the First Amendment advanced by the ACLU. Government is expected to permit all manner of political expression, so long as it does not incite "imminent violence." The state, on this construction, is supposed to be value neutral when it comes to the permissibility of speech, allowing even points of view it finds abhorrent by its defining political norms. Analogous to the ACLU's absolutist take on free speech, there is a related interpretation of the First Amendment Establishment norm, under which government is supposed to be neutral with regard to religion, neither endorsing any one faith over any other, nor even, more controversially, favoring religion over irreligion. We stumble when we take these value-neutral understandings of the First Amendment as metaphor for the whole of the liberal democratic state.
After some two decades under the sway of this beguiling doctrine, most prominently defended in John Rawls' Political Liberalism and his The Law of Peoples (originally one of the Oxford Amnesty Lectures on Human Rights), many American political theorists have found it wanting, incapable of insuring for the stability of the constitutional republic against those outside the liberal tent, fundamentalists among them, or of underwriting human rights and liberal constitutions in societies lacking a liberal culture or tradition. But perhaps the most fatal flaw is its appeal to a neutered reasonableness so thin and bereft of substance that it is of little use in settling the most contentious normative disputes within our own constitutional order (the problems of abortion and assisted suicide come readily to mind). Nussbaum's approach, sketched all-too-briefly above, rescues the Rawlsian schema only by introducing the very element which Rawls leaves out: a thick, partially comprehensive account of what is good in human life, going beyond austere value-neutralism.
While she professes to remain within the Rawlsian minimalist camp—defending the capabilities essential for a good human life as being for "political purposes only"—Nussbaum's theory is unavoidably a defense of the common core of political and extra-political values unifying many moral traditions, East and West. It undergirds human rights and liberal democracy only by offering a vision of value, albeit incomplete. She never manages to distinguish between a partially comprehensive account of what is good, invoking some commonly held extra-political values (such as the importance of play and leisure to a worthwhile human life), offered in support of a conception of political justice (which might include maximum-hour labor legislation limiting the number of weekly hours a worker could contract for with an employer), and a consensus over a purely public political set of values harnessed for the same end. Rawls' later innovation was to suggest that people will, for example, endorse fair labor legislation for a host of conflicting sectarian reasons, each flowing from their various religious, moral and general philosophical commitments. Yet at the same time, each must be able to offer to the other her grounds for this endorsement not in the "private" language of her comprehensive religious or philosophical beliefs, but in a shared, civic language of public discourse, invoking only mutually acceptable norms capable of drawing wider assent.
For such a language to exist, Rawls stipulates, there must be a common public culture infused with liberal democratic norms. In Nussbaum's schema, no such public discourse is possible; we are left only with a convergence over nonpublic value between disparate religions and cultures, each supporting respect for liberal rights and capabilities for its own transcendent reasons, given its special conception of the good life, of redemption, of the divine. Because the capabilities are themselves the object of the "overlapping consensus" of otherwise discordant comprehensive value orientations, and the grounds for subscribing to them are always nested in the sectarian cacophony of comprehensive doctrines of the good life, Rawls' central idea of a republic, or an international order, governed by public reason, where citizens proffer one another arguments for public policy in a common normative idiom sanitized of goodness, becomes chimerical. We can speak, to be sure, in the shared language of rights and capabilities to one another, but when we differ about their ranking, or their very existence, we can only fall back into the sometimes dissonant, sometimes harmonic, sectarian trope.
The failure of value minimalist theory—its collapse into engaged narratives of goodness—is reflected in the troubles of societies too much in its thrall. A public sphere shorn of all commitments to what is good in human life is a sterile social world, where social bonds are feeble and citizenship—our responsibilities to our fellows and to the quality of our common public project—is not esteemed among the pursuits of a worthy life. To the extent that a political order embodies such value neutrality, implanted, as it often is, in a market economy whose one god is efficiency—the maximization of individual and collective gain—its members will incline toward narcissism, its social fabric to alienation and violence. It is just this untenable conception of liberal democracies as value-neutral structures all the way down which has so skewed the thinking of many on the question of how such states should, ethically speaking, respond to the rise to power of far right political parties in the heart of Western Europe. A just state cannot be a morally neutral state. It must imbue in its citizens a liberating vision of the common good within which human rights, civic duties and equal respect must enjoy pride of place.
When George Melloan of the Wall Street Journal rails against the notion that liberal democracies rest on shared values, he has tripped over what is by now obvious, the kernel of truth lurking within Rawls' husk: that the citizens in liberal democracies generally rally around certain common values, most especially a core of political constitutional ideals, despite their diversity of belief on many nonpolitical dimensions of what is good, beautiful and meaningful in life (and notwithstanding their discord over the full scope of the constitutional core to which most adhere). At the heart of these consensual norms is the root ideal of the American Declaration of Independence and the U.S. Constitution's Fourteenth Amendment, mirrored in the United Nations' Universal Declaration of Human Rights: No state shall deny to any person the equal protection of the laws, an idea which must be coupled with the Bill of Rights' commitment to respect for equal rights and liberties. Democracy, in sum, rests on the moral bedrock of human rights. When racist political leaders arise, through pluralities or majorities in a popular election, as Hitler once did, and now Haider—their differences notwithstanding—they may galvanize their national publics with the idiom of exclusion and intolerance. Left unchecked, their poisoned politics may corrode the social foundations of liberal constitutions and global justice. Human rights demand the inclusion of the other, charges Habermas from neighboring Germany, and the immigrant is the classical pariah in history.
Like most every Jew, my family is the story of immigrants. My parents and I spent the 1950's in a small apartment in the Bronx neighborhood which now attracts a melange of immigrants, including the Diallo family. My maternal grandparents, Bessie Zabel of Byalistok and Leon Angstreich of Lvov, fled the anti-Semitism and pogroms of Russia, Poland and Austria-Hungary for the refuge of American shores. While Leon likely deserted Emperor Franz Josef's army, Bessie was most probably an illegal immigrant to the U.S. Approaching retirement, she feared the U.S. Government would discover her secret and deny her social security benefits, despite having been a U.S. citizen for forty years. Death spared her the spectacle of a United States Congress denying food stamps to all immigrants, legal or illegal, and financial support for the aged and disabled among them, since only partly rescinded, under the guise of "welfare reform." It freed her from witnessing the people of California engaged in a glorious exercise of democracy in Proposition 187, denying almost all state services, including medical care, to millions of illegal immigrants, having already denied them public schooling and lawful employment. This, from the land which, in the sonorous couplet of American Jewish poet Emma Lazarus, proclaimed to all who enter the United States through New York Harbor: "Give me your tired, your poor, Your huddled masses, yearning to breathe free, The wretched refuse of your teeming shore. Send these, the homeless, tempest-tost to me…"
Wanted: A New Democratic Rhetoric
There is no compelling reason to wait, as Ian Buruma preaches, for a racist leader in a European state to begin espousing violence for the liberal democracies to begin to strike back against the rhetoric of hate. By doing so preemptively, we raise the moral price of antiliberalism, lessening the likelihood that assaults against despised minorities will be publicly advocated or committed. How quickly we forget that it was the Jews who were once such a minority, and often still are, as in Russia or Iran. Would we wish Western governments to hold their tongues and wait until the violence begins, if we, Jews and other minorities, are once again its potential victims?
Buruma's quietist proposal fails the elementary test of moral reciprocity. Robert Wistrich opines that nothing in practice will come of Haider and Freedom's hateful oratory. While under the watchful eye of an international community wielding diplomatic sanctions, the rhetoric itself may burrow underground, and Wistrich's forecast will come to pass, malgre lui: no rhetoric, no violence. But absent this counterweight, it is sure to resurface by the next election, when Haider seeks the Chancellory of Austria. The naysayers must consider: Haven't we witnessed how homophobic sermonizing legitimates violence against gays (as even the Rev. Jerry Falwell now admits), and anti-peace diatribes against Israeli peacemakers render political assassination thinkable—and doable? Such vitriol is once again emanating from among fundamentalist Israeli rabbis and settlers on the West Bank, now against Prime Minister Barak, as he moves toward a final Palestinian-Israeli reconciliation. The Federal Agency for the Protection of the Constitution in Germany reported that "the number of rightists deemed likely to commit acts of violence grew by about 10% to 9,000," and "recorded violent attacks by far rightists reached 746, up from 708 in 1998." (NYT, April 4, 2000) Germany's seven million foreigners are the most common targets of those attacks. Wistrich inexplicably suggests that Haider's Nazi sympathies and his party's slanderous vilification of black immigrants as "disease-infested drug peddlers" is in harmony with "the letter and the spirit of the EU's constitution."
It is among the legitimate and necessary functions of a liberal democracy to instill in its citizens, through public, civic education, the normative political values, virtues and standards on which it rests. Public censure and diplomatic sanctions against those who would subvert the human rights ideals of political and moral equality is not only a proper exercise of the state's function in cultivating the bedrock civic values in which its continued stability is anchored as a political community. It is a mandatory task for liberal democratic societies if they are to survive and further extend their humanitarian norms both within and without amidst the corrosive forces of xenophobia, racism and ultra-nationalism which may be among the unintended discontents of globalization in the new millennium. Not only Europe but we, too, harbor the toxic weeds of illiberal democracy. They will soon despoil our garden, unless we awaken from the political torpor which engulfs us and take concerted action to uproot them.
At the time of this essay’s writing in 1999, Gidon D. Remba was a Ph.D. student in political philosophy at the University of Chicago and an Internet consultant and business development manager at MCI. His writing on ethics, technology and politics has appeared in Tikkun, the Chicago Tribune and other periodicals. A previous draft of this essay was presented at the University of Texas at Austin.
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