Former Democratic Chairman Howard Dean wondered aloud the other day whether Republicans even believe in democracy. Dean said he had his doubts after listening to Republican campaign consultant Scott Tranter (whose company was paid more than $3,000 by the Romney campaign) state matter-of-factly during a panel discussion on the 2012 election sponsored by the Pew Center on the States that of course Republicans try to make it harder for minorities to vote.
If voters in states run by Republicans, specifically Florida and Ohio, are forced to endure waits as long as seven hours in the hot sun or pouring rain that was AOK with the smirking Tranter, who confessed: "A lot of us are campaign officials -- or campaign professionals, and we want to do everything we can to help our side. Sometimes we think that's voter ID, sometimes we think that's longer lines -- whatever it may be."
Tranter is interesting only because he so perfectly exhibits the contempt for democracy which is manifest in the Republican Party today. Otherwise, he is the sort of harmless misfit people who do politics for a living invariably encounter throughout their careers -- the street punk who thinks politics is nothing more than a game or a sport and who sees stratagems to disenfranchise his fellow citizens as less a grand ideological imperative than as just another clever prank which tilts the playing field to his side's advantage.
Justice Antonin Scalia, on the other hand, is a far more dangerous adversary because his ideas, though equally undemocratic, run far deeper and so are the seeds out of which entire worldviews can spring.
That worldview was on vivid display in a recent exchange with Princeton freshman Duncan Hosie, who asked Scalia why in the reactionary justice's dissents in gay rights cases does he repeatedly link homosexuality with such things as murder, polygamy, cruelty to animals and bestiality?
"Do you think it's necessary to draw these comparisons, to use this specific language, to make the point that the Constitution doesn't protect gay rights?" asked Hosie, who is gay.
"I don't think it's necessary, but I think it's effective," was Scalia's chilling reply.
Critics miss the point when they accuse Scalia of equating homosexuality with murder. That is because to focus on this admittedly obscene comparison distracts us from the larger implications of Scalia's worldview, which are much worse, because they constitute a recipe for autocracy and absolutism.
Scalia himself denies he equates gay sex with murder. What he says he does compare is the "principle" that a society may use its law to "adopt moral sanctions," or to enshrine "moral views" against certain conduct. And it is only with respect to that legal principle that Scalia says murder and homosexuality are the same.
Scalia is called an "originalist" because he claims to interpret the Constitution according to what the Founders and other lawmakers originally intended. But that's not what Scalia does at all. He can't, since the language of the Constitution is too vague and the historical record about lawmakers' intention too imprecise and contradictory to permit Scalia's method from ever becoming an entire school of Supreme Court thinking about how to make sense of an 18th century document in the 21st.
In truth, Scalia is not a legal "originalist" but a social traditionalist and paternalistic Catholic whose legal "originalism" is nothing more than fancy if deceptive packaging for a philosophy of society that is pre-Vatican II if not pre-modern.
And so Scalia believes it was wrong for the Court to strike down "morals" laws like those criminalizing gay sex on grounds such laws merely expressed the irrational prejudices and primitive superstitions of those who subscribe to Scalia's conservatives family values. In doing so, said Scalia, the Court undermined the entire body of ancient and inherited belief that gives humans the capacity to tell right from wrong at all.
In case after case in which the Supreme Court has said the government has no business caring what consenting adults do in the privacy of their own homes, Justice Scalia has stood up for the principle that it's not only permitted but praiseworthy that people "consider certain conduct reprehensible."
Reading Scalia you get the impression that the symbol for his idea of law is the slippery slope not Blind Justice holding her evenly balanced scales.
Allow this behavior and that conduct will inevitably follow. That's Scalia's idea of rule of law. Legalize homosexuality or sanction gay marriage and before you know it murder will be legal, too. The same body of ancient and inherited belief which declares homosexuality to be "immoral" tells us it is wrong to kill our fellow man. And so you trifle with "God's Law" at your own peril.
It is all connected. And once you start down that slippery slope by permitting the little things like gay sex you've lost that connection with right and wrong we inherit from traditional faith and organized religion (a Catholic one in particular) which prevents us from excusing much greater atrocities.
As Scalia wrote in the Lawrence case de-criminalizing sodomy: "State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of laws based on moral choices."
Every single one of these laws is called into question by the Court's decision, said Scalia. And yet, he said, the Court made "no effort to cabin the scope of its decision" by limiting the application of the principle that the state should not care about consensual sex or other kinds of "morals" issues.
Scalia is actually right about that. Once the Court opened Pandora's Box by severing the assumed and axiomatic nexus between what may at one time or another have been thought "immoral" and what must therefore be "illegal," there really was no logical reason outside of actual, provable harm to other people for thinking gays should not marry or laws against other "outrages" offensive to traditionalists like Scalia should not be stricken from the books as well.
What more liberal courts have done, of course, is to allow the idea of individual rights and evolving community standards to enter into their calculus of what's legal or not. Yet, like all American autocrats who sense their power slipping away, Justice Scalia has tried to portray himself as a democrat standing up against all those "tyrannical, activist judges" and for the American People and their right to codify their values, sentiments, prejudices and superstitions into the law.
But why is "The People" on whose behalf autocrats like Scalia claim to speak always such a selective one? Why do they almost always seem identical to those devout "democratic" masses the late Catholic theocrat Fr. John Richard Neuhaus had in mind when he defined "popular sovereignty" as a free people exercising its inalienable freedoms by freely subordinating itself to the dictates of its God and to those church leaders who claimed to speak on God's behalf?
Which brings us to the real point of Scalia's obsession with "morality" and its treatment in American constitutional law.
At the end of the day there is no room in Scalia's worldview for popular self-government at all because a paternalistic autocrat like Scalia would never leave to chance anything as important as the morality by which a society or culture defines itself. He would never, in short, allow the people, the masses, the mob to establish its own "values." Not really.
And since traditional morality is the basis of Scalia's law, control of that law must be separated from democracy and popular rule as well.
It is no surprise, therefore, that in case after case (such as Citizens United) which promotes some elite ruling class over the larger population, Scalia reliably sides with the few over the many.
In an influential essay from 1994, well-known historian Alan Brinkley said the "problem with American conservatism" was that too few Americans understood conservatism for what it really was.
Most people, he says, associate conservatism with Milton Friedman's free market fundamentalism, or Friedrich A. Hayek's "road to serfdom," where economic control by the state through state regulation can never be thought of as separate from political control of our cherished freedoms. This is where some get the idea that the Security and Exchange Commission is the thin-edge of European-style totalitarianism.
As Brinkley says, these so-called "conservatives" routinely expressed "essentially liberal concerns," whether it was fear of the state; "the elevation of individual liberty above all other values;" or the insistence that personal freedom was inseparable from economic freedom. That is why most scholars, he said, dismissed conservatism as being "simply a rigid and unreflective" form liberalism itself, and "not a fundamentally or intellectually important challenge to the reigning political assumptions of American life."
What most Americans overlooked, said Brinkley, was a conservative tradition that was not about economics at all but was rather "intensely normative" in that it did not accept the basic modern, liberal, democratic assumptions about the nature of modern society at all. Preferring faith over science and conformity to free will, this conservative tradition saw America as a "cult of liberty" that posed a dangerous threat to civic virtue and social stability.
These beliefs, commonplace among European conservatives, held that a good society must find its grounding not simply in liberty but also respect for moral traditions, universal values and inherited social hierarchies. (emphasis added).
Conservatives who are icons today, like Russell Kirk, were considered to be cult figures when they did their most creative thinking and writing in the 1950s.
In his most famous book, The Conservative Mind, Kirk spells out the "six canons" of conservative thought that, today, provide the philosophical raw material for the planks the modern GOP now hammers together every four years to be its party platform.
Kirk includes as part of this conservative cannon: "The belief that a divine intent rules society as well as conscience;" that "political problems at bottom are religious and moral problems;" that "civilized society requires orders and classes;" and finally, that "tradition and sound prejudice provide checks upon man's anarchic impulses."
The genuine conservative, said Kirk, "may be a resolute and strong-minded clergyman, endeavoring in his parish to redeem men and women from their bondage to modern appetites, contending against all the power of the cheap press and the dreary cinema and the blatant radio, reminding them that they are part of a great eternal order, in which it is their lot to serve the ends of love and justice, venerating the mysterious social union of the dead, the living and those yet to be born."
All beautiful poetry, to be sure, some of which I even subscribe to. But there is a big problem. Or, better yet, a serious omission.
It is all well and good for the local parish priest to tell his congregation that they must put their lives in the hand of God. But since God does not reveal himself to us individually and directly, or at least He does not reveal himself to me that way, then someone must speak on His behalf. Someone, in short, must play God. And throughout history as we know there has been no shortage of candidates willing accept the part.
Except for the smallest clans and tribes where important questions could be decided by a show of hands, all human societies have had to confront the basic question of who its leaders will be and on what basis they will exercise political power.
For the practical reality is, as Walter Lippmann wrote in Essays in the Public Philosophy, "a mass cannot govern."
Not only is it mathematically and logistically impractical for large populations to resolve most political disputes themselves, neither is such direct democracy likely to produce results that are fair, just or in the public interest.
That is because, says Lippmann, "in ordinary circumstances voters cannot be expected to transcend their particular, localized and self-regarding opinions. As well expect men laboring in the valley to see the land as from a mountain top. In their circumstances, which as private persons they cannot readily surmount, the voters are most likely to suppose that whatever seems obviously good to them must be good for the country and good in the sight of God."
A rational man acting in the real world is one Lippmann defines as knowing where to strike a balance between "what he desires and what can be done." Likewise, he says, "the public interest may be presumed to be what men would choose if they saw clearly, thought rationally, acted disinterestedly and benevolently."
And so it matters a great deal on what basis those a society tolerates to be its leaders choose to govern, and on what basis they exert political and legal power. It matters greatly, in other words, whether a leader's vision of his society and her responsibility to it is such that it leads them to either preserve a stale and self-serving traditionalism or embrace the dynamic unpredictability of popular sovereignty. The one path leads to absolutism; the other, democracy.
Brinkley says that the traditionalism which finds favor with Justice Scalia has also had a special appeal to elites in the American South, that region of the country which has, throughout our history, "bred a number of defenses of hierarchical and organic notions of society -- not only as rationalizations for white supremacy and economic oligarchy but also as an expression of intellectual unhappiness with the progressive norms of the industrial world."
Indeed, says Brinkley, it is the South's special commitment to an "organic" view of society and its traditional and established hierarchies that has historically set the South apart from the rest of the country as a distinctive region, culture and even country. It is also why the aim of Southern conservative politics has always been to build walls around its own community instead of bridges to other ones.
Brinkley, of course, wrote his essay in 1994 just as a Southern provincial conservatism once thought to be the exclusive inhabitant of the South's backwoods rural communities was bringing Newt Gingrich and a newly Dixiefied Republican Party to national power for the first time.
This reactionary strain in the GOP caught Washington by surprise. It certainly unnerved the Massachusetts Republican Congressman I later worked for who was serving in 1994 and whose career in the House was cut short after just two terms once Bay State Democrats were able to wrap Newt Gingrich and his red neck Southern conservatism around my Congressman's own outstretched neck.
It is this preference for rigid traditionalism over democracy which currently distinguishes the GOP as a rump Southern regional faction that seems intent on depriving the GOP of its once proud heritage as a national governing party.
This sorry state of affairs is clearly evident from the cannon-fire echoes we now hear of the ideas and actions that marked the last time in our history an entire region alienated itself from the forward progress of the rest of the country. I am talking of course about the filibuster, nullification, secession, and sedition against the country's well-being, carried out this time by means of serial debt ceiling crises and fiscal cliffs instead of armed insurrection by men dressed in butternut gray.
"In framing a government which is to be administered by men over men," said James Madison, "the great difficulty lies in this: You must first enable the government to control the governed; and in the next place oblige it to control itself."
Whenever I have read that famous rationale for checks and balances which Madison provides in Federalist Number 51, I have always assumed Madison was making an argument in favor of limited government and the division of power between state and national governments in our federal system.
But, of course, when Madison speaks of "the government" he did not mean it literally. He did not mean the Congress, or the Executive with its four tiny departments or the Supreme Court.
Madison was talking directly to his fellow Virginia planters - fellow slaveholders who fancied themselves transplanted heirs of Old World aristocrats, entitled to rule over slaves who counted as just three-fifths of a human being -- and other lesser beings however whole -- by means of privileges and prerogatives this ruling class thought it had inherited from birth. They were "the government." They were the ruling class that had to learn to control its own ambitions and lust for power if its members were to be responsible leaders of a democratic republic.
"A dependence on the people" is no doubt one way to bring the ruling classes to heel, Madison reasoned. But experience has also taught "the necessity of auxiliary precautions," by which Madison means not only the formal checks in the Constitution on upper class power but also the more important informal ones -- the checks of habit, custom and attitude.
The dilemma confronting America today is the same one that stared Madison in the face in 1787. Will America's rich and powerful elites find within themselves the discipline to be the responsible leaders of a democratic republic? Or will they seek to leverage their self-appointed and self-serving role as guardians of some ancient moral tradition in order to give themselves arbitrary powers not found in Madison's Constitution to play God - no matter how hard Justice Antonin Scalia tries.