22
Apr
11

Types of Democratic Barriers

Quick Note: my facebook publishing feature has been broken for some reason, so if you read my articles fairly regularly, you may have missed some of my recent past stuff. Also you should go to policymic.com/beta and type in my name in the search bar if you like this post, because I’ve done some stuff on democracy there too.

Some people put great weight on stalling and slowing down democracy. Such people are usually fairly conservative (but don’t have to be. Y’all know how I feel about stereotypes), and they see the supreme court (in our system) as a bastion of freedom. These people are very interested in the constitution as a writ of personal freedom that democracy cannot encroach on. Tocqueville was worried about this same problem; he worried about the “tyranny of the majority.”

The modern trend is very much against this thinking. After Lochner v. New York, many people lost faith in the judiciary to regulate democracies decision on the basis of some SUBSTANTIVE theory of morality, such as one including strong protections of property rights.

Many modern day constitutional lawyers argue that democracy should rule and that the supreme court should only step in to curb the legislature when it ITSELF, takes action that endangers democracy.

Free speech is a good example. Some believe we should preserve free speech because people JUST HAVE THAT RIGHT (like we have rights to property — so these people think). The constitutional democrats will claim that we have to enforce free speech because doing so SUSTAINS DEMOCRACY.

So there is a debate about whether we should put barriers in place of the majority’s will, whether those barriers be the supreme court or supermajority requirements or whatever. I think the whole democracy-versus-rights things is very complicated and so I don’t have a firm opinion on it yet, I do think there are more subtle and farsighted ways to get the majority to NOT get its way in some situations.

For example, some countries give the minority party in the legislature the power of investigation. This is smart because it doesn’t give the minority to hold up laws or legislation that the majority judges to be important. They cannot hold things hostage with their minority status as the filibuster allows minorities in the senate to do. However, the power of investigation means that the minority has a way to make its voiced heard. It need not get railroaded by the superior numbers of a majority party. Such a minority can MONITOR the ruling party’s activities and initiate investigations to reduce its credibility. In other words, it can hold the majority party to stricter account as governance goes on.

One might call this a deliberative rather than a supermajority or veto point check on legislative activity.

But really the whole point of this post was to introduce something I recently found out about, which is that Indian politics (the subcontinent that is) makes fairly regular use of fasting as a way to push for political action. Think about that for a second. This is what I would think is a CULTURALLY SPECIFIC type of deliberative (is it deliberative or just something close by?) democratic action.

Take a situation. The majority party wants to pass something bad. The minority does not have any legal or legislative options to stall this option. In what way they can employ pressure to get the majority to reconsider? How can they get the majority to RETHINK its preference rather than simply THWARTING IT? Fasting seems like an answer, and in an article that will be coming out on the site I edit in the next day or two (policymic.com/beta), one of the writers I work with talks about how the vice president has even used fasting (fasting for only 30 minutes at one point!) to try and stir political change. This is a courageous cultural feature of Indian democracy and I hope they preserve it even as they gain the institutional trappings of a modern democracy.

The bigger lesson is that culture can matter for politics in a very serious way.

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