John Hood: Everyone favors limits on Democracy

RALEIGH — Why won’t North Carolina Democrats accept the results of an election? Don’t they believe in democracy?

In 2018, North Carolinians went to the polls to cast ballots for congressional, legislative, and local candidates. They also voted on several constitutional amendments. One of them required the presentation of a photo ID in order to vote. The measure was extensively debated for months. Some 1.6 million voted against it. Just over 2 million voted for it. By a 55% to 45% margin, North Carolinians added a photo-ID requirement to the state constitution.

But it has never been implemented. Democratic politicians and progressive activists refused to let the majority have its say. They sued. The issue remains in litigation.

Now, let me answer those initial questions. First, why won’t North Carolina Democrats accept the results of that 2018 election? Because they don’t like the outcome.

Second, does resorting to court challenge mean that these Democrats and activists don’t believe in democracy? No. They believe that in a free society, direct democracy must face some constraints. They believe that even if a majority of the population favors a particular policy, that shouldn’t necessarily lead to the policy being implemented.

I don’t agree with them about requiring photo IDs to vote. It’s a reasonable, low-cost precaution against a low-probability but potentially outrageous result: fraudulent votes determining the outcome of an election. But I do agree with them about the underlying principle of necessary constraints on democracy. You do, too, though you may not have thought about the issue in those terms.

That is, if you believe in America’s system of constitutional government, you think a mix of democratic and non-democratic elements is better than a simple majoritarian democracy. You favor checks and balances, including checks on the power of elected lawmakers and balancing popular will with individual rights. You aren’t just comfortable with judges (including appointed ones) striking down laws that most voters favor. You’d be upset if judges didn’t exercise such a power.

Consider the Bill of Rights. The First Amendment states that “Congress shall make no law” abridging the freedoms of religious exercise, speech, press, assembly, and petition. The argument was never that restricting core freedoms is okay as long as it’s the majority who does it.

During segregation, the right of African-Americans to vote in federal, state, and local elections was routinely denied in many places. But even if it hadn’t been, even if blacks had been voting in those places at rates compared to whites, the latter would often have prevailed in democratic elections. That wouldn’t have given white-run governments the moral authority to infringe on the personal and economic freedoms of their black neighbors. Nor would it have rescued such Jim Crow policies from being overturned by federal judges in defense of constitutional rights.

In Aristotle’s classic work Politics, he articulates two different definitions of freedom. “One principle of liberty,” he writes in Part 2 of Book 6, “is for all to rule and be ruled in turn,” by which he means that “the majority must be supreme, and that whatever the majority approve must be the end and the just.” But that is only “one note of liberty which all democrats affirm to be the principle of their state,“ he continues. “Another is that a man should live as he likes.”

There’s an inherent tension here, as Aristotle recognized thousands of years ago and that we still see and experience today. Majority wins (or, at least, plurality wins) is the proper decision rule for electing politicians and settling some other questions. It is not the only proper decision rule in a constitutional republic, however. Constitutions are essentially supermajority requirements that constrain government action. Some progressives, exhibiting either bad faith or an embarrassing lack of self-awareness, accuse conservatives of being “against democracy” when we make procedural arguments or file lawsuits challenging a policy that was enacted by a majoritarian institution.

It’s a silly claim. And they don’t really mean it.