Iraqi and American democracy

Mortimer Sellers msellers at
Wed Jul 20 14:09:42 PDT 2005

John Parry asks whether democracy is really necessary for legitimate government.  The answer is yes.
Whenever any members of society get excluded from the public debate, their interests get overlooked, even by well-meaning people.  That is why women, slaves, minorities etc. must have the vote.  If slaves had the vote, slavery would not last long. This is because it is unjust and can easily be seen to be so, so long as slaves have a voice in the discussion. 
This is not to say that all democracies are just, for the reasons John raises.  Minorities can be outvoted and oppressed in plebiscitory democracies.  That is why just constitutions also include checks and balances to protect the common good and fundamental human rights.
            Tim Sellers


From: conlawprof-bounces at [mailto:conlawprof-bounces at] On Behalf Of John Parry
Sent: Wednesday, July 20, 2005 3:46 PM
To: conlawprof at
Subject: Re: Iraqi and American democracy

Not to beat a dead horse but . . . oh well, why not.  
The "majority rule" definition raises so many issues.  First, how do we define a majority.  Do you mean voters, or legislators (is a majority of unelected legislators a democratic entity)?  Or neither?  Schmitt, for example, insisted that democracy could be conceptually separated from parliamentarianism.  He preferred a form of direct democracy in which acclamation would play a role instead of voting (and of course his wish came true in Germany) -- because acclamation was truer to the popular will and provided an experience of "real" politics that the sterile process of voting and counting never could (but see Florida in 2000).
Second, what does the majority of voters actually do?  If voting turns out to be just a spectacle and does not translate into meaningful shifts in governance (a point I raise knowing it is debatable and perhaps even controversial), then democracy becomes a cover for other things -- interest group politics, perhaps, or force.
Third, who gets counted if we use voters as a benchmark?  Equality, as we all know, depends on someone being unequal.  In the early republic, it was propertied white men with some exceptions who were more equal than others.  Now it is adults without a felony record as a matter of formal law, and a smaller category when one considers real-world issues that impact the decision to vote.
This of course also loops back to what I took to be Marci's point:  that at least women literally counted as whole and complete people and were not cut into pieces as "other persons" were -- even if this did not translate into full citzenship.  Of course it is also true that women and slaves were both used as units (or partial units) to determine how many white male representatives a given piece of territory would get.
And finally, few people on this list -- as the exchange between Tim and Sandy makes clear -- really take democracy to be sufficient for legitimacy.  I wonder whether it is even really necessary (one can have constitutionalism without democracy, after all).  The definition of what makes a legitimate government is not fixed in stone, and there have been times when large proportions of populations have supported increased authority or even dictatorship at the expense of democracy (and democratic constitutions have at times provided for temporary dictatorship).  Put differently, would you rather have rights (or even real liberty) or democracy?  Government benefits from cradle to grave, or democracy?  "Freedom from fear" or democracy?  I suspect we all would have our price.  Or, we would redefine democracy as whatever we think is the best way to balance these interests (democracy as what we do or should do) -- which means that all of us would insist on some form of limited democracy as necessary, but full democracy would be illegitimate.
John T. Parry
Visiting Professor, Lewis & Clark Law School
Associate Professor, University of Pittsburgh School of Law
parry at

----- Original Message ----- 
From: Mortimer  <mailto:msellers at> Sellers 
To: Sanford Levinson <mailto:SLevinson at>  ; Hamilton02 at ; conlawprof at 
Sent: Wednesday, July 20, 2005 1:18 PM
Subject: RE: Iraqi and American democracy

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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