Strength as Weakness; or the Double Edge of Political Form

The US Supreme Court recently oral arguments for why it should judge “gay marriage” to be required by the United States Constitution. One of the main objections brought against the argument was that this question should not be settled by “nine people outside the ballot box,” but rather “the people acting through the democratic process.” I have little sympathy for this line of argument in the abstract. I approve of the idea of nine learned judges wielding great power in the state by deciding which laws are in conformity with the basic principles of the nation.

The current state of things is almost an example of corruptio optimi pessima. While I certainly don’t think that the United States has the best constitution, I do think that it is superior to those of most other Western liberal democracies. And this is because it is not a pure democracy, but a mixed form, a republic. It includes a strong monarchical element in the presidency, and the supreme court is (in one sense of the word) an aristocratic element. But all this shows how secondary the form of government is compared to its purpose. A good mixture of the the three forms of government is only good is the state really sees itself as ordered to a real common good, and human law as dependent on natural law. To the extent that a state is liberal— in the sense of ordering the law to giving each individual an equal opportunity to pursue whatever they happen to desire— to that extent a good form is actually harmful. The more effective aristocratic and monarchical elements of a liberal republic will be more efficient and consistent in their opposition to the claims of natural law than the muddled and inconsistent public. In a liberal order the people at large are generally more conservative than the elites.

Take the example of abortion. In The United States, abortion was made legal without any restriction by the Supreme Court applying a consistent understanding of liberal politics to the question. In Austria, which has a more parliamentary form of government, abortion law was slowly liberalized through muddle of the “democratic process.” Today in Austria abortion is technically illegal, but officially tolerated for the first three months of pregnancy, if the mother has taken council. After the first three months abortions are only officially tolerated if the mother’s health is in danger, or the baby is handicapped. An evil law, certainly, but not quite as bad as the American one. In Switzerland,  with its preference for direct democracy over representation, similar restrictions hold, and Switzerland has one of the lowest abortion rates in the world.

One could argue that given a culture that accepts a liberal conception of politics, the least harmful form of government would be the most chaotic and ineffective— say, a ancient Greek style democracy in which all the citizens vote on any matter of importance, and the officers of the state are chosen by lottery. This is not a new argument— it is basically the same as the ancient insight that while monarchy is the best form of government, its corruption (tyranny) is the worst, and that while a democracy might be the least good of legitimate forms, its corruption (ochlocracy, or the tyranny of the many) is the least bad of illegitimate forms.

7 thoughts on “Strength as Weakness; or the Double Edge of Political Form

  1. You write : “I certainly don’t think that the United States has the best constitution”

    Should be written as “I certainly don’t think that the United States have the best constitution”

    That change alone answers the question at issue on why it should not be these nine judges.


  2. Pingback: Weekend Reading | The Ordeal of Consciousness

  3. Pingback: Is marriage ‘pre-political’? | Sancrucensis

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