No Government Believes in Democracy

An open letter from the UK protests the American invocation of how interested we think we are in having the UK remain in the EU. There's a tremendous irony in the United States lecturing the UK on the need to maintain a political union its people no longer find acceptable, of course, but the author lets that pass. He's after a more serious point about democracy:

The President of the United States is considered by many to be the leader of the free world, and the United States itself considered to be a beacon of democracy. So it is profoundly disappointing to see the United States administration endorsing and encouraging something that is fundamentally undemocratic. I would like to ask you the following questions.

* Would it be acceptable to you and your fellow United States citizens that over 70% of the laws and regulations they were forced to comply with across all 50 states were created by a supranational government comprising layers of complex political and judicial structures, mostly unelected and unaccountable, and made up of delegates from not only the US, but Canada, Mexico, Guatemala, Honduras, Belize, El Salvador, Panama, Colombia, Venezuela and Peru?
* Would it be acceptable to you, your fellow United States citizens and members of the Senate and House of Representatives that they were routinely handed diktats from the various bodies that make up the supranational government and were bound by law to implement the directives or be fined or dragged into a supranational court operating an alien form of judicial code and process? Further, that Congress was denied the ability to draft, and the President sign into law, other legislation of national interest whenever the supranational decided it was not appropriate?
* Would it be acceptable to you, your fellow United States citizens and the Justices of the Supreme Court that decisions made by the bench, the highest court in your land, could be appealed to a supranational court overseas with the hearing presided over by foreign judges and if overruled the Supreme Court would have to accept that as a binding ruling?

If these scenarios do not sound very democratic or judicious to you and your fellow Americans it is because they are not.... No one who believes in democracy – people power – would endorse and encourage a continuation of this anti-democratic situation for the United Kingdom.

The problem is that the author has just made a criticism of the EU that is just as valid a critique against the UK itself, viewed from the perspective of Scotland's independence movement. Indeed, it is just as valid a critique against the United States government. There is simply no possibility that such a criticism, however valid, can be entertained by the political class of either nation.

The only difference between the EU and the US in the first point is the question of whether the super-sized government is 'alien' or not. Measured in the most obvious way for a democracy, that is by the values that the people hold dear and want to see protected and furthered, the complaint may be no better. Probably the people of Belize, a former British colony, have at least as many common values with the people of the UK than the people of Alabama do with the delegates from California (whose people include some conservatives, but whose government no longer does). The Federal government here also generates a massive percentage of regulation via bureaucracy rather than democratic processes. These bureaucracies are staffed by people never elected to make law, who lack any actual Constitutional authority to make law, and who are only in a small percentage of cases vetted by elected representatives.

The same is true for judicial fiat. Is it acceptable to have laws settled upon by the state legislature, approved by state courts, overturned by the Supreme Court in direct defiance of the ordinary values of the people? It has become usual. When the Supreme Court set aside the laws of thirteen states in Lawrence v. Texas, the Bush administration said that they considered the issue a state matter. Linda Greenhouse replied that the SCOTUS had said otherwise: what had been a state matter was now a matter of "binding national constitutional principle." Yet this was only the latest occasion when the SCOTUS had taken a matter where states had legislated according to the traditional morality of their people, and pronounced the issue was one on which the democratic process could not be trusted. It has likewise removed the power from Congress to legislate on issues very traditionally ordered by law, and is considering whether to do so again in the Defense of Marriage Act. We find that more and more issues are matters of "binding national constitutional principle" from which no dissent from democratic organs is tolerated.

This is not democracy. The invention of "binding constitutional principles" by the court is the repudiation of the method by which such principles were meant to arise: that is, following rather than preceding the development of constitutional consensus. A new Constitutional principle was supposed to follow the process described in Article V of the US Constitution, whereby a supermajority of support from the states would be required. That was the democratic ideal: that we would alter the fundamental bargain governing American life only when the vast majority of Americans agreed it was wise and proper. Instead the Federal government has learned to pretend that the bargain always was whatever it now wants the bargain to be. We are told that we simply misunderstood the bargain when we ratified it, and perhaps for two hundred years after.

There's nothing magical about a "national" as opposed to a "super-national" government that gives the national government a better claim to legitimacy. Legitimacy was supposed to arise from adherence to the Constitution, whose limits and forms were meant to ensure that the government remained within the bounds of the powers actually delegated to it. The EU and the US are no longer different forms of government at all. The citizen of the United Kingdom who works to move her nation out of the EU is acting wisely, and in the defense of what remains of her democracy. But she can expect no support from the 'leader of the free world.' Our political class has learned to hate the ideal she advocates.