Will does little to resolve the tension between the libertarian model of constitutional theory and the conservative approach he purports to uphold.
“Illiberal Democracy” is much in the news today. Victor Orban, the prime minister of Hungary, openly espouses the concept, and the ruling Law and Justice Party in Poland is frequently said to embrace a similar regime. Some critics accuse Trump of promoting an illiberal democracy, although his appointees to the Supreme Court both support strong protection for constitutional rights against democratic overruling—a cornerstone of liberalism.
The condemnations of illiberal democracy are frequently shallow because they tend to assume rather than show the coherence of “liberal democracy,” that illiberal democracy displaces, ignoring the real tensions between liberalism and democracy. Democracy poses a threat to liberties. Liberties restrict the scope of democracy. Putting these concepts together into a simple package called liberal democracy is a difficult task. Indeed, under very strong versions of both democracy and liberty, combining them may be as impossible as squaring the circle.
Moreover, America has already established paradigms of illiberal democracy that are much more likely to influence our politics than some foreign import or new creation of Donald Trump. Perhaps the most obviously fertile ground for illiberal democracy is denying effective judicial review of constitutional rights. Opponents of effective judicial review either outright or through doctrines of elastic deference on both the left and right have been around since the beginning of the republic. They were first given a sophisticated defense by James Bradley Thayer and have many academic defenders today. A majority empowered to construct rights essentially as it sees fit opens up a plausible route to an illiberal democracy unless the political culture is so strong as to restrain the majority’s passions in turbulent times.
Social democracy or progressivism—another well-established American tradition—is at least half of an illiberal democracy. Social democrats generally do not believe that economic liberties should be protected against democratic abrogation. And despite disclaimers, this form of democracy tends to undermine the independent protection of all rights, leading to a more comprehensively illiberal democracy. One reason for this slippage is that the defense of setting aside economic rights is hard to confine to economic rights. For instance, if economic rights should not be protected on the grounds that there are no prepolitical rights, why are civil liberties not also up for political determination?
These theoretical concerns about slippage are now richly realized in practice. Progressives are willing to curtail even civil rights connected to the democratic process, like the right to speak out at election time, to protect an ideal of equality. And with the confirmation of Justices Neil Gorsuch and Brett Kavanaugh, some progressives are now openly calling for court packing. Amusingly, court packing is widely thought to be the paradigm case of illiberal democracy when proposed abroad, as in Hungary and Poland. Sadly, when progressives accuse Donald Trump of promoting illiberal democracy, they often have a bad case of projection.
In a subsequent post, I will describe how the American Constitution interpreted according to its original meaning does a good job of mixing liberalism and democracy.