Nonsense, precedented and petrified

When you hear the word “unprecedented,” reach for your . . . dictionary.

But when you hear someone say we should be “petrified” of “democracy,” what do you reach for, then?

Early last week, President Barack Obama railed against the Supreme Court and the possibility that it might overturn the 111th Congress’s Patient Protection and Affordable Care Act, what most of us know as “Obamacare.” He said that would amount to “an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

Nonsense, of course. Overturning laws based on the U.S. Constitution is the thing the Supreme Court is most famous for doing. You can hardly get more precedented than that tradition, which started with Marbury v. Madison in 1803.

I wrote about this misuse of “unprecedented” the first chance I got, even suggesting that the president wasn’t exactly engaging in honest rhetoric.

So I sympathize with extreme reactions against the prez’s bit of election-year political posturing and lobbying of the High Court. But one can go overboard reacting to it. As did columnist David Harsanyi. Writing on reason.com, he all but likens “popular government” with Medusa herself:

Anyone who’s had a casual conversation with his neighbors or is cognizant of reality TV should already be petrified of democracy.

And then he goes on to Obama’s tongue-rattling at the Supreme Court.

Mr. Harsanyi usually makes a lot more sense, and I bring up his bizarre turns of thought not to salt the earth against any future harsanyism, but as a not-uncommon-enough example of anti-democratic hysteria, oft observed amongst my conservative and libertarian compatriots. As is typical in such tirades, the anti-democratic bits derail his generally sane approach to the policy issue at hand, in this case the boondoggle that is Obamacare:

I can assure you that if Americans were asked to vote to get boatloads of money from government, democracy would quickly become a lot more expensive.

Yet, Obamacare was hardly an example of democracy in action.

Perhaps Mr. Harsanyi is confusing the name of a particular political party — “The Democratic Party” — with democracy in general. Like Republicans spurning republican principles for imperial ones, today’s Democrats are not exactly shining exemplars of democratic principles.

What the Democrats did in enacting Obamacare was to impose a law that the majority of Americans were against, in turn causing a huge popular backlash. It thus serves as a horrifying example of Representative Democracy, better understood as misrepresentative democracy.

For something closer to real democracy, the intermediaries in the process would have to be jettisoned. Twenty-four states have a so-called direct democratic option via the citizen initiative process. And ask the trillion-dollar question: Has it been used by citizens to spend boatloads of money on themselves? No. Unequivocally. Not even in California, where big-spending politicians often deflect attention by making that false claim.

And not in other states with the initiative.

More importantly, the citizen initiative has often been used to cut taxes, require super-majorities of legislators to raise taxes, block attacks on private property via eminent domain, limit politicians’ terms, require government transparency, etc.

Meanwhile, in our nation’s capital, where there is no citizen initiative or “direct democracy” option, government does everything but drop-ship crates of new dollars borrowed from China to every special interest, if not every neighborhood, it can find. A new entitlement program seems to get created every time a new president marches into office, and as each new notch of the spend-fest is passed by politicians, polls show the public growing (and growling) in opposition.

Harsanyi also argues that “Democrats have fought hard to undo safeguards against direct democracy, attaching a morality to a process that can do both good and bad. They have created ballot measures to do away with the Electoral College. They’d like Washington, rather than localities, to dictate nearly everything.”

Well, that’s just odd. True, there have been initiatives “filed” to effectively allow states to get around the Electoral College, but not a single state’s electorate has ever passed such a measure. Not one. Meanwhile, nine state legislatures have passed National Popular Vote laws without a vote of the people.

Furthermore, Democrats hate the initiative process at the state level. That is, office-holding Democrats do. Many office-holding Republicans harbor similar seething resentments.

The “democracy” they desire isn’t the direct democracy of people voting on a handful of important laws at the ballot box. Instead, the D.C. Democrats (and Republicans) want the “democracy” of elected officials doing whatever they damn well please, without regard to what the people want and with the hope of escaping any constitutional restraint via the courts.

Frankly, both parties in power want all decisions and money to flow through their hands. Has anyone anywhere failed to notice this? But it is certainly not through any sort of “direct democracy” that they are making their regular power-grabs.

For a straight-forward comparison, look abroad. There is one country in the world that has a robust system of initiative and referendum at the “state” as well at the national level: Switzerland.

The Swiss enjoy the highest per capita standard of living in the world. They’ve managed to live in peace, with a relatively high degree of individual liberty, throughout their history. Swiss money is more sound than our own.

The country isn’t exactly paradise, but it isn’t a hellish mob dystopia, either.

Indeed, for a hellish dystopia, our “representatives” in Washington, D.C., are working mightily to bring us that — most often against the will of the people. It’s not “democracy” that’s to blame. Is it democracy that “allows rhetoric, false empathy and emotion to pummel rational thinking,” as Harsanyi argues? All politics is prone to that. Harsanyi writes that “it’s no wonder so many politicians thrive in it.” But what politicians thrive in is a very hedged and limited democracy where two parties vie to control an increasingly unlimited and bloated state.

I’ve noticed, in working in the 24 states with initiative rights, that voters tend to be far more reasonable than politicians, far more prone to think of the bigger picture, on a constitutional level. They see the point of limiting government, by and large. Going into the voting booth, they tend to face incentives that nudge them into thinking constitutionally, at least better than politicians going into legislative chambers.

So, I agree with Harsanyi. Obama’s anti-Supreme Court rants are disgraceful. But the Supreme Court must rise not above “democracy” but above misrepresentative-politics-as-usual.

Democracy, within constitutional limits, is the best hope for saving our republic. Litigation will make headway towards sanity, now and then. I’m all for it, and for our constitutional rights trumping our democratic preferences. But it’s the anti-constitutional thinking in legislatures and executive offices that constitutes the real problem, and that thinking is as anti-democratic as it is irresponsible.

April 7, 2012

This column originally appeared on Townhall.com.