More on Egypt, Constitutionalism, and Democracy

At the Liberty and Law blog, Michael Rappaport has posted a thoughtful response to my recent post arguing that liberal democrats are sometimes justified in supporting restrictions on democracy in cases where the majority public opinion is highly illiberal. I cited survey data and other evidence suggesting that Egypt is probably such a case. Michael endorses my main point, but suggests various qualifications:

I agree with Ilya, but there is more going on here. Democracy is a vague concept. A single election can be thought of as democracy, but few thoughtful people would defend it as such. Democracy, even if it is not necessarily liberal democracy, still requires a system whereby the people’s will is regularly consulted and done in a fair process. Morsi instituted decrees that purported to be unreviewable by the courts. Such absolute power is not the way to have democracy….

But there is another aspect of both democracy and consensual government, and that is compromise. If a majority of the people or the legislature favors a policy, that does not necessarily mean it should be instituted, if a large minority strongly disapproves of it. This is a tricky issue, but consensual government involves compromises and it appears Morsi was having none of it.

Finally, there is the important issue of enacting a constitution. In my view, a constitution should be enacted through an inclusive, supermajoritarian process. It should reflect the views of a large percentage of the country. The U.S. Constitution did this, at least as to those who had the right to vote. Much of the problem in Egypt appears to involve this matter. A largely Islamist assembly was elected in a single election, which then appointed a largely Islamist constitutional assembly, which then sought to entrench its power.

I largely agree with Michael’s points here. It is true that a “single election” does not a democracy make. As I indicated in my original post, one of the dangers of allowing radical Islamists or other illiberal parties to hold power is that the outcome could well be a “one man, one vote, one time” regime in which authoritarians take power through the democratic process and and then prevent future free elections. I also agree that compromise is desirable in a democracy and that constitutions should be framed by supermajorities, rather than narrow majorities of the moment.

Ideally, such devices as judicial review, institutionalized compromise, and supermajoritarian constitutions can constrain illiberal public opinion without resorting to the use of force, as just happened in Egypt. Unfortunately, however, in some newly emerging democracies, such institutions either do not exist or do not function effectively. And it may not be possible to quickly establish them. Therefore, in practice, there can still be situations where the only feasible alternatives are either blocking the democratic process or allowing a repressive, illiberal regime to hold power. As I mentioned in my original post, such restrictions on the democratic process need not take the form of a violent military coup. There are other alternatives, such as post-World War II West Germany’s policy of banning illiberal parties such as the Nazis and communists from taking part in elections.

None of the options for dealing with these kind of situations are ideal. A coup could potentially bring to power authoritarians as bad as those it displaces. Restrictions on party participation in election could potentially be extended to cover liberal democratic parties as well as illiberal ones, and enable to ruling party to monopolize political power (though West Germany managed to avoid this danger). But such tragic tradeoffs have to carefully considered rather than preemptively dismissed on the grounds that it is always wrong to constrain the democratic process.

Finally, a brief word on terminology. When I refer to “democracy” in these posts, I use the term in the narrow sense of a regime where the government is chosen by some sort of majority vote. I recognize that many people define democracy more broadly to incorporate respect for a variety of liberal values, including minority rights. Michael’s post is perhaps an example of this kind of broader usage. I don’t object to the broader definition on linguistic grounds. But I do think it tends to obscure the potential conflict between majoritarianism and other liberal values. We cannot assume that a majoritarian regime will necessarily also involve compromise, protection for minorities, and the other institutions Michael enumerates. I also see no inherent incompatibility between democracy and very broad executive power of the kind wielded by Morsi (as long as the executive is elected). In cases like Egypt today or post-1945 Germany, we cannot assume that all good liberal values go together. Sometimes, we can have either majoritarian democracy or respect for other liberal values, but not both at the same time.