Constitutional democracy

A few excerpts from Roger Scruton’s The Meaning of Conservatism on republican versus democratic governance:

De Tocqueville wrote of democracy that it “not only makes each man forget his forefathers, but it conceals from him his descendants and separates him from his contemporaries; it ceaselessly throws him back on himself alone and threatens finally to confine him entirely in the solitude of his own heart”. That is a strong way of putting it, and one that reflects the bitterness spread by the French Revolution in the feelings of all its descendants. But it contains a truth. The great difficulty lies in finding the language with which to persuade people to acknowledge de Tocqueville’s meaning.

The social fragmentation presaged by de Tocqueville is as elusive as it is virulent, while the supposed legitimacy of the democratic process is a conception of permanent and vivid appeal. Should politicians wish to criticize the democratic process they must represent themselves as opposed, not to democracy, but to some local or specialized form of it—proportional representation, say, or the single-chamber parliament, or the plebiscite. But these specialized forms exemplify the same principle that they must also claim to be defending, the principle that, in matters of government, it is the opinion of the governed that confers legitimacy upon what is done. It might be possible to argue against the use of a referendum, on the grounds that twenty million people ought not to be asked to make a momentous decision concerning a matter about which almost all of them know nothing (for example, whether to join or not to join the European Monetary Union). It might be possible to argue against proportional representation, on the grounds that it will generate a parliament that is weak, irresolute and peppered with crackpots.

But all such arguments rely on a principle that denies the basis of democracy. For they assert that popular opinion is a legitimate guide only in so far as it is authorized by a constitution that limits its excesses. Hence the legitimacy of government cannot be conferred merely by democratic choice. …

The underlying idea is … that legitimacy can reside only in contractual or quasi-contractual agreement, and not in established usage. Hence, it is thought, the only legitimate government, or procedure, is one that has been “chosen” or consented to by its subjects. Yet as soon as one considers the highly artificial circumstances of democratic choice, one must see that this “choice” presupposes in its turn that the citizens should recognize some prior legitimacy in that which they do not and cannot choose—namely the procedures which make choice available, and the people and offices which guard them.

A Republic, if you can keep it,” reported Ben Franklin after the 1787 Constitutional Convention. The demos, or the people themselves, have always been meant to be heard most forcefully through their elected representatives in our republican model. You might say that we’re a democracy in the sense that we determine in every generation to what extent we’re going to keep the republic. If you don’t like the “republic” language for whatever reason, try “constitutional democracy.”

Scruton continues:

… however fair and free, [the democratic process] will always give precedence to the needs and desires of those who are choosing now, regardless of the needs and desires of those who are not yet with us or those who are already dead. The very same theoretical weakness which afflicts the social contract, afflicts democratic choice—namely, that it privileges the living and their immediate interests over past and future generations.

Burke made the point in something like those terms in his great polemic against the French Revolution. But it is worth setting it in a more modern context, since it bears upon the most important questions that now confront us. Burke argued that we can view society as a contract (as the French Revolutionaries, following Rousseau, proposed) only if we recognize that the contract includes not the living only but also the unborn and the dead. Mention of the dead seems quaint to modern ears: after all, they are no longer with us, and therefore, you might suppose, have no interests which are affected by what we do. That is not how Burke saw the matter, however. The dead, he believed, have an enduring interest in our respect for them. Moreover, this is recognized by the law, which obliges us to carry out the will of a testator, whether or not it is in anyone else’s interest.

But there is a much deeper reason to include the dead and their wishes in our calculations. From the beginning of time, it is respect for the dead that has formed the basis of institution-building. Schools, universities, hospitals, orphanages, clubs, libraries, churches and institutions began life as private foundations, dependent on property given or bequeathed by people no longer alive. The present holders of that property were morally speaking, the temporary trustees. Respect for the dead forbade the arbitrary use of their bequests, and compelled the trustees to further the purposes which the founders and donors would approve. By honoring the dead, the living trustees were safeguarding the interests of their successors. Respect for the dead is the foundation of the attitude of trusteeship upon which future generations depend for their inheritance. Remove the dead from the equation, and you remove the unborn. And that, not to put too fine a point on it, is the real danger of unmoderated democracy.

Procedural limitations on democracy must therefore be designed to ensure that the voices of the dead and the unborn are heard in the political process. But not any dead and unborn: only those who belong to the first person plural over which the sovereign power presides — the community-through-time which in modern terms is usually seen as a nation, the term “nation” being etymologically connected with the idea of birth and descent without which the long-term perspective is seemingly impossible to grasp as a part of politics.

It’s an under-appreciated point that Scruton highlights there, that democracy naturally focuses on what we want now, at the expense of the future or the recent past. But context matters; even if you reject arguments about respecting the will, intent, or memory of the dead, it’s a fact that almost nothing in life can be understood out of its context. How can it be that whatever our immediate and present wants might be, that these are the only good worth pursuing?

They’re clearly not, as our entire society is built on the practice of deferring immediate gratification—from investing years of our lives in educating ourselves for future success, to planning in old age for the success of children and grandchildren, to saving as much as possible for retirement in youth and middle age, when immediate spending would be more rewarding in the present moment.

Yet when it comes to governance, we probably tip too much toward democratic interest in present-oriented concerns at the expense of long-term governance and planning for the future. It would explain why we can’t find consensus on energy and environmental policy that plans for the future and why we can’t solve the insolvency problems of our pension and social welfare commitments, for instance.