Between Liberalism and Democracy John O. McGinnis

The new Israeli government has proposed legislation that would rein in the power of its unelected judiciary. The reform would prevent the Supreme Court from striking down laws simply because they were unreasonable. It would allow the Knesset Israel s legislature to overrule decisions by a majority vote. It would reform the current judicial selection process where judges have a huge say in choosing their successors and instead allow the Knesset much greater leverage in selection.

Not surprisingly, these proposals have been very controversial not only in Israel itself but around the world. But perhaps more surprising has been a constant refrain: the proposals are undemocratic. Even the United States Secretary of State implied as much on his latest visit, expressing concern about the core importance of democratic principles and institutions. Such criticism on the surface seems very odd. Under the simple definition of democracy, these proposals seem quite democratic, transferring more power to the representatives of the people from a self-perpetuating oligarchy. And deployment of this kind of incongruous democratic critique is not unique to Israel. When Poland reformed its judiciary to give more power to its representative branches, its actions were called anti-democratic. Even the overruling of Roe v. Wade has been termed anti-democratic, although Dobbs returns abortion policy to the choices of the citizens of several states.

Perhaps this linguistic inversion can be dismissed just as the transformation of a political concept into an epithet. Fascist is often used as a term of opprobrium to attack whatever right-wing idea a left-wing speaker dislikes; perhaps undemocratic is following a similar trajectory. But in my view, the reasons are more complicated. What passes for the modern ideal of democracy in the West is not the pure rule of the people what defined democracy in classical times. Instead democracy today is a shorthand for representative liberal democracy. And the problem is that liberalism is in substantial tension with democracy because it seeks to put (some) liberties beyond (some) degree of democratic control. Thus antidemocratic can be used to mean that the lines drawn between liberalism and democracy are the wrong ones. But the concept of liberal democracy in itself does not tell us which are the right ones and thus the criticism is indeterminate and always available as a partisan attack.

via lawliberty.org