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January 01, 2005

Posner on Why Democracy is Amoral and Ignorant
... and Why That's a Good Thing

Judge Richard Posner is guest blogging at Leiter Reports and has a post on why morality has to influence politics and why it is hopeless for liberals to attack policies merely because they are religiously inspired. In a sense, folks may try to disguise their motives but one's ultimate metaphysical beliefs will inevitably shape that policy.

On one level, Posner is arguing that demanding intellectual justification for policy just puts a premium on ex post rationalization:

Think of the rejection in our society of the Islamic punishment code, public nudity, polygamy, indentured servitude, chain gangs, voluntary gladiatorial combat, forced redistribution of wealth, preventive war, torture, the mutilation of corpses, sex with corpses, sex with nonobjecting animals, child labor, duelling, suicide, euthanasia, arranged marriages, race and sex discrimination. Are there really compelling reasons for these unarguable tenets of the current American moral code? One can give reasons for them, but would they be anything more than rationalizations?
If liberals attack religiously-inspired policies by demanding such rationalizations, all you get is rightwing think tanks churning out secular-looking rationalizations.

Not only is this no gain for real intellectual debate, a demand for such intellectual debate is fundamentally undemocratic. As Posner argues:

Rawls and others have thought that religious beliefs shouldn?t be allowed to influence public policy, precisely because they are nondiscussable. But this view rests on a misunderstanding of democracy. Modern representative democracy isn?t about making law the outcome of discussion. It is not about modeling politics on the academic seminar. It is about forcing officials to stand for election at short intervals, and about letting ordinary people express their political preferences without having to defend them in debate with their intellectual superiors.
I agree with this populist critique by Posner of the rhetoric of many liberals. Democracy is often based on instinctual decisions that can't even be voiced in acceptable academic rhetoric or motives.

More importantly, if you really believe in a pluralistic society, you can't demand agreement on philosophical principles to enact policies, since we inevitably have people coming at politics from views of the world that can't be easily integrated in some idealized national discussion.

Instead, democracy in our country depends on silent acts. When we vote, we don't have to justify our decision; we vote silently and anonymously. When juries make decisions, they don't have to publish a justification. They just vote yes or no on guilt or liability.

That right to silence should be respected and questioning the motives behind the enactment of a policy is dangerous territory for liberals to play. It is far more fruitful to argue over the negative effects of the policy, since that factual appeal to voters is the core of democracy, while questioning voters or legislators right to act on their beliefs is fundamentally anti-democratic.

Failing to make this distinction is probably a core of the problem for liberals on "social issues." It's one thing to argue for the bad effects of criminalizing abortion or preventing gay marriage -- even reasonable pro-life and anti-gay voters can respect a counter-argument and might even listen. But when you declare the belief system that motivates them to vote that way to be illegitimate, this just encourages resentment and anger.

I strongly argue that progressives should continue fighting hard to enact pro-choice and pro-gay policies, but I think this discussion highlights why pro-choice and pro-gay court decisions are so counterproductive in leading to rage in social conservative circles.

A court decision is not a vote which social conservatives have lost, where they have to accept the silent verdict of the ballot box. Instead, they have to accept a written argument that declares their values outside acceptable constitutional thought and reasoning. In this way, courts are the political space most like the academic venue that Posner notes is antithetical to our democratic values.

So disagreements with liberal social decisions get fused with anti-elitist rage, creating a toxic populist cocktail that usually hurts liberal social causes. The passage of DOMA in 1996, following the Hawaii court decision on gay marriage, and the passage this year of the slew of state constitutional amendments banning gay marriage this year, following Lawrence and the Mass Supreme Court decision, just highlight this dynamic.

It's not that intellectual debate should not influence politics; it inevitably will, since such debate is one thing that influences people. But Posner's point is that most such debate is built on a scaffold of inherent prejudices, values and morality that cannot be ignored and should not be delegitimized. Trying to decide social issues in court inherently is an attempt to do the latter. The answer is that progressives should continue to argue and fight vigorously for their values in the cultural and political sphere, but should abandon anti-democratic attempts to use courts to short-circuit the political debate on those social issues.

Posted by Nathan at January 1, 2005 02:38 AM