Democracy Comes In From The Cold

It is (kind of) heartening to see ideas one long advocates gaining a increased hearing (kind of) after being long ignored. I'm speaking of Joe Klein's latest in Time, A New Idea For Democrats: Democracy

The Schiavo case has provoked a passionate American conversation, which is taking place on a more profound level than the simple yes and no answers of the polls. Yes, the vast majority disdain the politicians who chose to exploit the case. And yes, a solid majority would not want their own lives prolonged in a similar situation. But the questions that cut closest to home are the family issues. What would you do if Terri Schiavo were your daughter? Why couldn't Michael Schiavo just give custody over to the parents? What do we do about custody in a society where the parent-child bond is more durable than many marriages? The President's solution, to "err on the side of life," seems the only humane answer—if there is a dispute between parents and spouse, and the disabled person has left no clear instruction.

The Democrats' relative silence on all this has been prudent, but telling. Their implicit position has been to err toward law. "The notion that Florida failed to do its job in the Schiavo case is wrong," said Congressman Barney Frank, one of the few Democrats willing to speak about the case. "Procedurally, there was a great deal of due process." Frank was right, but it was a curiously sterile pronouncement, bereft of the Congressman's usual raucous humanity. It exemplified the Democratic Party's recent overdependence on legal process, a culture of law that has supplanted legislative consideration of vexing social issues. This is democracy once removed.

The Democrats come to their dilemma honorably. It dates back to the civil rights movement, when federal courts had to enforce federal law in states that refused racial integration. But the courts soon wandered into unlegislated gray areas. They imposed forced busing to achieve school integration, allowed racial preferences in hiring and school admissions, extrapolated a constitutional right to privacy and declared abortion legal in the 1973 Roe v. Wade case (and more recently, on the state court level, allowed gay marriage). Many of these were worthy decisions, but they were never voted on. Over time, as the Democrats became the minority party, their efforts to hold on to this last area of solace became more desperate.

I've always found it difficult to comprehend something about my staunch Democratic friends. They could launch into impassioned defenses of this or that matter of public policy, but when it came time for a decision to be made by a part of the government on the issue they never wanted a democratic vote. Instead they would say, "Let's let this hand-picked group of oligarchs make the decision for us! Hooray!! My side wins!" It made the idea of "democratic discourse" farcical. Why engage in these sorts of discussions if you are never going to be allowed to have an input on pulic policy, either directly or indirectly? For too long the Democrats have been in the position of arguing to justify what the courts have done in their name, instead of arguing to change people's hearts and minds. There is a very large difference between the two.

I think of capital punishment as the prime example of this situation in action. The liberal position against capital punishment (which I agree with whole-heartedly) has been decimated by the reliance on the courts to impose our will. Every time the issue of capital punishment comes into the news these days it is because this or that court has attempted to throw a road-block in its way, but there is no attempt to engage with and change the majority opinion. Indeed the ideas you hear on television against the death penalty are usually awful. Of course they are awful. They are never being made to appeal to people with doubts on the subject, they are made to justify an oligarchical decision making process against a democratic decision making process. No wonder 70% (or more) of Americans support the death penalty.

Back to Klein:

Oddly, a solution to the Dems' dilemma may be on offer from liberal academia. "The hot new idea in liberal law journals is called popular constitutionalism," says Paul Gewirtz of Yale Law School. "It argues that legislatures and voters should have more control over government, and the judiciary should take a more subsidiary position." [Is there anything in this world that makes you doubt the intellectual utility of an idea more than hearing it is "the hot new idea in liberal law journals"? I didn't think so.] In other words, issues like abortion should be put to a vote. This is an idea unthinkable to most Democratic politicians, who believe the right to an abortion is tucked somewhere in the Constitution—and also to the more extreme religious conservatives, who believe abortion is murder. That leaves the rest of us. And I imagine most of us would prefer some good, messy legislative compromises, hammered out at the state level, with the unimpeachable imprimatur of public approval. Perhaps it is time, finally, for Democrats to embrace democracy.

It is strange to see such ideas getting such prominent exposure. Ten (plus) years ago when I was making the same sorts of arguments they never would have shown up in a publication like Time. I'm not really sure they will resonate with the majority of mainline Democrats (or Republicans for that matter.) Politics seems to be becoming an "all or nothing" sort of game these days. Hell, you have Democrats that want to expel Joe Lieberman from their party for even talking about compromise with the other side. And Lord knows if the Republicans attempt to moderate from the positions that the evangelical right has staked out, the right wing will go all screwy (screwier.) It remains to be seen who will be left to move to the center to engage in the debates and form a public policy that doesn't involve imposing it with judicial edicts.

Maybe if we can get folks on the left and the right to agree that the democratic process is worthwhile in and of itself, whether in the short run you win or lose, then maybe we will have something.