The vindication of democracy

As pro-abortion protesters and the mainstream media rush to try and frame the narrative surrounding the U.S. Supreme Court’s historic decision to overturn Roe v. Wade, it hasn’t taken long for them to settle on a dominant theme: The Supreme Court launched an attack on democracy. No doubt you have seen the headlines and the polls: The court’s action represents a “tyranny of the minority” and a “mockery of democracy” while 60 percent of Americans wanted to keep Roe and only 25 percent have confidence in the high court. Conservatives might retort that such poll numbers are the result of misleading questions and media-fueled confusion about what the court actually decided. And principled Christians might bite the bullet and say that we serve a higher standard than the will of the people—some things are simply immoral, and we must pursue justice, come what may.

Still, all of this hysteria about the end of democracy looks positively bewildering from the standpoint of what the court actually did. Writing for the majority, Justice Samuel Alito lamented how in previous abortion decisions, “the Court short-circuited the democratic process by closing it to the large number of Americans who dissented in any respect from Roe.” To correct this evil, the court’s ruling in the Dobbs case sought to restore democracy by giving power back to the people: “Our decision returns the issue of abortion to those legislative bodies, and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office.” In other words, according to the court, if 60 percent of Americans want abortion on demand legal, all they need to do is go out and vote for it.

However, in a majority of states, it seems clear that a majority of legislators, elected by pluralities or majorities of popular votes, will vote to radically increase protections for the unborn. And even if Democrats tried to follow through on their promise to use Congress to guarantee abortion access by national law, it seems unlikely that such legislation would pass soon. All of this suggests that when people shriek about the “demise of democracy,” they are using the word in quite a different sense than what generations of Americans have celebrated: a “government of the people, by the people, and for the people.”

In calling it such, Abraham Lincoln might have seemed at first to contradict John Adams, who hailed our constitutional order as “a government of laws not of men.” Both agreed, however, about the basic shape of our democratic republic: one in which the people, politically organized through their authorized representatives, governed themselves by laws of their own making. “The people,” after all, as nearly everyone understood until our generation, are a different thing than simply “people.” And “the will of the people,” as expressed through the soberly considered acts of self-binding that we call laws, is a different thing than “what people want,” expressed as an opinion poll snapshot of the momentary passions of a multitude.

More than 2,000 years ago, in surveying different senses of the word “democracy,” Aristotle noted that in one version of democracy, “not the law, but the multitude have supreme authority.” Such a polity, he muses, is not a polity at all and thus not a true democracy, “for where the laws have no authority there is no constitution.”

It is the authority of law, as a general rule that stands above momentary whims, that distinguishes a form of government from a mere mob. Indeed, if state borders, which are meant to mark out distinct law-making polities, are irrelevant, and a New Yorker’s response to a pollster about a law in Mississippi is “democracy,” then why even care about national borders or states? Why shouldn’t we shape abortion policy by what a majority of all human beings, randomly sampled for a five-minute opinion poll, feel about the subject? Sadly, we are not far from this reductio ad absurdum—at least according to many in the media.

In response to this attempt to shame conservatives into silence by portraying them as “undemocratic,” we need to forcefully remind our neighbors and opinion-shapers what actual self-government means. A people can only genuinely govern themselves through laws, passed within constitutionally defined borders, not by mere opinion—if that could ever be determined anyway. As our Founders well understood, political self-government presupposes individual self-government. Those who refuse to shackle their passions will not know how to limit the passions of a multitude by laws. Little wonder, then, that our society that has so rejected the reality of moral law can no longer understand the meaning or value of political law.