An interview with an expert on democracy and government

In the NPR program, The Takeaway, Melissa Harris-Perry interviewed Duke U. Professor of Law Jedidiah Purdy. Purdy believes that our democracy is imperfect and messy, but nonetheless its better than autocracy-theocracy. Some of his comments are quite interesting.

Melissa Harris-Perry: Right now, about the dangers to our existing democracy, imperfect as it might be, what do you identify as the biggest dangers to democracy?

Professor Jedediah Purdy: I see a few dimensions of threats. The fact that the Republican Party increasingly identifies itself with the denial of valid election results and is flirting aggressively, maybe more than flirting, with the idea that if the wrong people win an election, that election can't be valid. That is the most basic existential threat to a democracy if elections can't solve the question of who's in charge.

I think there are some subtler threats. One is that the constitution itself as it's been interpreted is a deeply anti-democratic document in some ways. The Electoral College is an anti-democratic institution. The Senate is an anti-democratic institution. The Supreme Court is an anti-democratic institution. A lot of people who grew up thinking, "Basically, whatever democracy is, it probably is what's in the constitution. The Supreme Court is probably a wise and good interpreter of that idea," have been reminded that the reality can be exactly the opposite.

I guess I would put it this way. A party, Republican Party that has developed an increasingly anti-democratic politics, depends existentially on the support of an anti-democratic constitutional design. A Supreme Court that has become a leading threat to democracy values is produced and sustained by the anti-democratic presidency and the anti-democratic Senate, as well as by a constitution that, because it's so hard for living democratic majorities to affirm or amend, ends up meaning that our fundamental law is decided by a small set of judges.

I think the problem with the constitution is that they did constitutional politics essentially once and then froze it by making the barrier to amend so high that we haven't had a meaningful constitutional amendment in 50 years. We're not currently expecting to see one anytime soon. The beauty of the constitution in some ways is in the opening phrase, "We, the people," because it says the authority of this thing, what makes it fundamental law, is that it's made by a democratic politics of people deciding together what their own binding basic law is going to be.

I think that shouldn't be once and for all. As it recedes further into history, and we can't pick that ball up again and take it in a new direction, it becomes less democratic. It becomes a kind of tyranny of the past over the present and it also becomes a tyranny of the interpreters over the rest of us. It's often been thought that it is a perfect document or perfect enough that we can just interpret it a little better and it will guide us forever into the future. I think that can't be right.

I think questions like, "Is there a fundamental right to choose abortion? Are corporations allowed to spend unlimited funds in politics? Are race-conscious policies' affirmative action permitted or not under the equality principle?" I think, fundamentally, these are questions that the people who are going to live with them have to answer. The constitution is set up now in such a way that we can't. "We, the people," is only them. It's not us. We can't be framers anymore. I think that's an unnecessarily undemocratic place for our fundamental law to get stuck.

I've seen arguments by experts that the barriers to amending the constitution were intentionally made to be high so that one group cannot easily overthrow democracy and install some form of tyranny. That is understandable. 

On the other hand, the constitution's inflexibility needed to be deal with somehow to adopt the law to changes in society and technology. The courts responded to natural changes by relying on American Legal Realism, which I discussed in this book review. 

At present, the Republican Party in its authoritarianism-Christian theocracy rejects and crushes ALR whenever it gets in the way of Republican dogma demands. To get what they want, Republican Supreme Court judges invent (i) unworkable legal theories like Originalism and Textualism, (ii) make their reasoning up out of nothing, or (iii) do some of both and/or God only knows what else, e.g., latter day haruspication.*

* Divining the law by looking at a fresh pile of animal guts. 

I've posted this quote about ALR many times, but it's relevant and worth recalling again:

“This is an attempt to describe generally the process of legal reasoning in the field of case law, and in the interpretation of statutes and of the Constitution. It is important that the mechanism of legal reasoning should not be concealed by its pretense. The pretense is that the law is a system of known rules applied by a judge; the pretense has long been under attack. In an important sense legal rules are never clear, and, if a rule had to be clear before it could be imposed, society would be impossible. The mechanism accepts the differences of view and ambiguities of words. It provides for the participation of the community in resolving the ambiguity by providing a forum for the discussion of policy in the gap of ambiguity. On serious controversial questions it makes it possible to take the first step in the direction of what otherwise would be forbidden ends. The mechanism is indispensable to peace in a community.”

Those comments reflect the need in law for some mechanism like ALR to respond to natural social and technological changes. Amending the constitution is not a practical means to do that. Legislatures either cannot keep up with change, or they do not want to keep up. That leaves it to the courts to try to keep up, assuming that is what the judges want to do.

It is not the case that Republican Party authoritarian-theocratic dogma wants no changes. It demands massive changes to society. Most of those ordained-by-God changes involve undoing important things that ALR led to, e.g., same-sex marriage rights, abortion rights, secular public education, due process, and anti-discrimination laws.

This is just another warning about the dire threat that modern Republican Party authoritarianism-Christian fundamentalist theocracy poses to American democracy, the rule of law, tolerant pluralism and civil liberties. The anti-democratic threat is right now, not sometime in the future.