Iraqi and American democracy

Mortimer Sellers msellers at
Wed Jul 20 13:18:48 PDT 2005

Sandy is right about the value of clarity, which is why we should try to use the simplest and most straightforward definitions of important terms such as "democracy" in discussing constitutions.
Politicians will, of course, cling to any term that has positive connotations and try to use it for their own purposes.
Still, I think that President Bush is right to say that no government is legitimate unless it is democratic.  He should add (and sometimes has, I think) that just governments must also respect the rule of law, fundamental human rights and constitutional checks and balances.
Just because important values are abused and disrespected by politicians does not mean that they should not be praised and carefully articulated by law professors.
         Tim Sellers

-----Original Message-----
From: Sanford Levinson [mailto:SLevinson at]
Sent: Wednesday, July 20, 2005 4:01 PM
To: Mortimer Sellers; Hamilton02 at; conlawprof at
Subject: RE: Iraqi and American democracy

I have no particular objection to Tim's stipulative definition, especially when it is accompanied by his point that "democracy-as-unrestricted-majority-rule" is in obvious tension with standard notions of "constitutionalism," including protection of "fundamental rights" against majoritarian abridgement.  The point is to be clear about the definition one is using, which one rarely finds in the speeches of, say, George W. Bush (or, to be fair, John Kerry or any other politician who loves to prate about the concept).


From: Mortimer Sellers [mailto:msellers at] 
Sent: Wednesday, July 20, 2005 2:58 PM
To: Sanford Levinson; Hamilton02 at; conlawprof at
Cc: Mortimer Sellers
Subject: RE: Iraqi and American democracy

Sandy raises the question of what we mean by democracy and suggests that it may be an "essentially contested" concept.
Democracy does not strike me as a particularly difficult concept to grasp.  It means majority rule.  The problem arises from overvaluing democracy. Democracy is an important element in any just constitutional order, but not the only value.  Human rights, the rule of law and constitutional checks and balances (including the separation of powers) are also extremely important.  By using lazily "democracy" as a shorthand for this broader set of values we make it easier for governments to establish illiberal (and therefore unjust) democracies.  All legitimate governments are democracies.  Not all democracies are just.  Being a democracy is not enough, on its own, to legitimate the constitutional order in Iraq (or the United States).
             Tim Sellers

-----Original Message-----
From: conlawprof-bounces at [mailto:conlawprof-bounces at]On Behalf Of Sanford Levinson
Sent: Wednesday, July 20, 2005 12:20 AM
To: Hamilton02 at; conlawprof at
Subject: RE: Iraqi and American democracy

Marci writes:
.   I suppose the U.S. is going to have to decide what it means by a democratic Iraq.  Do we mean a democracy patterned after our values, or one that they choose?    
This, of course, raises the deepest question of what we mean by democracy.  I.e., is it enough that a newly empowered majority of Shiite Moslems will use their voting power to "put women in their place," or does "democracy" require some (but how much?) linkage to "liberal" values such as genderk, religious, or ethnic equality?  Do we expect our own political leaders (including our undemocratrically selected president (in 2000), at least if majority rule is a sine qua non of democracy) to have a coherent theory of "democracy," or is it sufficient for them to babble about "democracy" or "freedom" without recognizing that these are, to put it mildly, "essentially contested concepts"?  

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