Ever since the deplorable January 6, 2021 attempt by supporters of outgoing President Trump to seize the U.S. Capitol, the political left has raised and amplified the cry of “our democracy under assault”.
Last Thursday in Philadelphia President Biden devoted a speech to delivering, in the words of the supportive Washington Post, “a dark message about threats to the very fabric of American democracy”, posed by what he has called the “semi-fascist MAGA Republicans” loyal to the former President.
The speech came a week after an NBC News national survey asked voters “What do you think is the most important issue facing the country?” “Threats to democracy” ranked first with 21%. (“Climate change” came in fifth with 8%,.)
Let’s step back from the partisan speech making, shelve our personal views for a moment, and take a long look at just what “democracy” means, historically and now.
“Democracy” has long been associated with the Greek city states of the 4th Century BCE. The philosopher Aristotle, in his major work Politics, considered what sort of political constitution was best to produce government where all share in the benefits of justice and goodness. He analyzed rule by the One (tyranny), the Few (the rich aristocracy, four varieties) and the Many (the common people, four varieties of democracy.)
America’s Founding Fathers, educated in the classical and British traditions, were republicans. They were opposed to rule by a Monarch, but also basically distrustful of democracy, rule by a majority, even though that majority did not include minors, women, slaves, indentured servants, criminals, aliens, and for many, those who owned no property. Those exclusions left democracy to less than ten percent of the population.
Our Declaration of Independence does not include a defense of “democracy”, a concept then viewed as alarmingly close to anarchy (no rule at all) and mob rule (“ochlocracy”). What the Founding Fathers wanted was liberalism: governments that protected the unalienable rights and liberties of the people. Those rights were declared in many state constitutions like Vermont’s of 1777 – a splendid example – and in the Bill of Rights in the national Constitution.
The Founding Fathers loathed Tyrannical rule, especially from abroad. They agreed that Democracy was essential to balanced government, along with the influence and wisdom of Aristocracy and an independent judiciary to impartially rule on controversies. The people were given the right to democratically choose their Representatives, mindful of the admonition (in the Vermont Constitution) to “hold them at all times, in a legal way, accountable to them.”
Now fast forward 246 years. All Americans still have their local, state and national democracy. People in all fifty states can freely establish their eligibility, go to the polls (or request a mail ballot), and vote their preferences, protected by state and (with the 15th Amendment) federal law. Yes, ballots are in some places miscounted or tampered with, but that’s not proof of a faulty system, just malfeasance and illegality never absent from human behavior.
So where is the threat to democracy? The real threat is to the rule of law.
The rule of law is cast down when a mob attacks the Capitol to prevent the Members of Congress from declaring the results of the Presidential election.
The rule of law is threatened when even well-intentioned government officials seek to infringe or limit rights guaranteed in our constitutions. The Supreme Court protected the rule of law this June by striking down a New York law that gave arbitrary control to the police to decide who could or could not exercise the right protected by the Second Amendment.
But there’s another never-ending and more ominous threat to the rule of law. It’s the threat of government employees deciding what the law shall require, even when our democratically elected Congress and legislatures have not enacted those requirements.
In this year’s West Virginia v. EPA decision, the Supreme Court dealt a serious blow to the assumption of unlegislated authority by government bureaucrats, saying “it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme in Section 111(d).[of the Clean Air Act]. A decision of such magnitude and consequence rests with Congress itself, or an agency acting pursuant to a clear delegation from that representative body.”
Finally, there is the really terrifying threat of a President – an Obama, Trump, or Biden -simply declaring an “emergency”, and decreeing results that are far beyond his lawful authority. A current example is President Biden’s cancelation of as much as a trillion dollars of student loan debt.
Our democracy is not seriously threatened by communists, organized crime, street riots, or even “semi-fascist MAGA Republicans”. What is constantly threatened is the Rule of Law, essential to preserving our democracy.
John McClaughry is vice president of the Ethan Allen Institute and the co-author, with Frank Bryan, of The Vermont Papers: Recreating Democracy on a Human Scale.