democratic and anti-democratic
mpollack at uidaho.edu
Sun Oct 30 14:32:33 PST 2005
Well, I completely disagree with your statement that "Whether mass lay
opinion is maximized or intelligently structured within a certain
pluralistic confine is not something critical as far as democratic morality
goes." To the extent that I understand the statement, you are using
"democratic morality" in a way that has nothing to do with the every day use
of "democratic." I consider such useages misleading and, therefore, not a
preferable mode of discussion.
As to "democracy as an ethic is DEVELOPMENTAL." I find that
statement uninteresting. Having now developed, I don't see any reason why
we should argue that the historical use of a process we now consider flawed
is a reason favoring our now living by some decision made by the earlier
process. Of course, if our current standards happen to agree with the
content of these old decisions, that agreement would be a good reason.
Since I like neither the old process nor the content of the old decisions, I
am willing to follow the current government for the simple reason that I
don't have a better alternative to offer. I don't believe that civil war
would be an improvement.
As far as I can tell, you are conceding that under the view that
'democratic' means something like 'chosen (or supported) by a majority of
the population', the ratification was not democratic. So we agree on the
historical fact. We disagree on the conclusions supported by that fact.
Professor, American Justice School of Law
Visiting Univ. of Idaho, College of Law
mpollack at uidaho.edu
From: Sean Wilson [mailto:whoooo26505 at yahoo.com]
Sent: Sunday, October 30, 2005 2:16 PM
To: Malla Pollack; 'Scarberry, Mark'; conlawprof at lists.ucla.edu
Subject: RE: democratic and anti-democratic
(2) is not important. It is clearly uninteresting. Whether mass lay opinion
is maximized or intelligently structured within a certain pluralistic
confine is not something critical as far as democratic morality goes.
(1) is where you are simply deploying improper logic. It is as if you have
just said this: the only way to call a person a "person" is if he or she is
emancipated. Hence, a person in an embryonic state or in childhood couldn't
meet the definition. The problem is that you do not understand that
democracy as an ethic is DEVELOPMENTAL. Taking a democratic regime's
accomplishments and using it as a basis to deny the legitimacy of the
genesis of the regime's ideal is simply an historical fallacy. It's called
by historians being "presentistic." It actually is a bias of some sort.
Saying the constitutional regime we live under TODAY is not "democratic"
because, in effect, the process that approved it had not yet seen the
benefits of the the democratization movement that took 100s of years in its
future (is it finalized yet? urban voters have longer lines) is simply being
Look at it this way: would you say that the wright brothers didn't fly in
an airplane if you found out that the vehicle couldn't climb or descend like
real planes could? Would you say that in colonial times there were no real
roads because they were not paved? Would you say that the American
revolution wasn't really fought with firearms because their weapons did not
meet the current statutory definition of a firearm?
Tell me something: did all the surgeons back then commit malpractice?
If you answer yes to these questions, you see the problem you are
Malla Pollack <mpollack at uidaho.edu> wrote:
To me, the only acceptable bases for currently (as in this listserv
discussion today) labeling the US Constitution "democratic" would be either
(i) it won election support from the current population in a democratic
election, or (ii) it allows issues (other than the structure of government
already set by the Constitution) to be decided by democratic means. In my
opinion, neither is true, though the second is less false than the first.
If you want to discuss this claim, go ahead.
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