The Political Consequences of Liberalism: The Bill of Rights and the Due Process of Law
May 16, 2006
INTERNATIONAL SEMINAR ON LIBERAL DEMOCRACY Democracy, Freedom and the Rule of Law Atlas Economic Research Foundation, Diário do Comércio e MidiaSemMascara
5/16 May, 2006
*Remarks prepared for Delivery Clifford D. May President, Foundation for Defense of Democracies
If you don't happen to live in a liberal democracy, you probably don't know much about liberal democracy.
How would you? In totalitarian states, information about the nature of free societies prohibited. In authoritarian states, it's at least hard to find.
Discussion and debate about freedom, democracy and human rights was stifled in Germany under the Third Reich, and in the Soviet Union until the era of glasnost.
When I was an exchange student in the Soviet Union many years ago, my friends would be questioned about what they had discussed with me. They would insist: “We were educating the American about the Soviet system and socialism.” And indeed, in many cases they were.
Information about democratic governance is prohibited today in North Korea and to a large extent in China and in Cuba.
The same is true in the autocratic Arab and Muslim countries such as Libya, where the most prominent Libyan dissident, Fathi Eljahmi, is currently in a dungeon, perhaps about to be sentenced to death and probably dying in any case.
Even in such relatively moderate Arab states as Egypt and Tunisia there is oppression of Muslim pro-democracy dissidents.
It's also true that if you are an Arabic or Farsi speaker without facility in other languages, very little has been translated. So even if the oppression is lifted, it's very difficult to get access to information and ideas.
If you do happen to live in a democratic country, you still probably don't know much about democracy. That's because most of the people who live in such societies take democracy for granted: The last thing a fish is likely to think about is water.
The most common confusion is between democracy and majoritarianism. Majoritarianism is the notion that democracy means that the majority rules without limits.
This notion does not bear up under even the most casual scrutiny.
As scholar James Bovard has said: "Democracy must be something more than two wolves and a sheep voting on what to have for dinner."
Elections alone do not a democracy make.
If elections were all it required to qualify as a democracy, the Soviet Union would have been one, since Soviet citizens regularly went to the polls to elect whichever candidates the Communist Party chose.
In Iran, too, people cast ballots. But Militant Islamist mullahs decide who may run and who will win.
Hamas, a Militant Islamist terrorist organization in the Palestinian territories, was, elected over Fatah. Does that mean that the Palestinian territories have a democratic system of government? I would say it does not. Anyone who stood up on a soap box and Gaza city and announced the creation of a “peace party” would not remain standing for long.
At best, these are all examples of what political scientists call “electoral authoritarian” regimes.
What determines whether such forms of government evolve into democracies? Can freedom be given -- or must it be earned? Can dissidents spread democratic values even in oppressive states? Or does it require democratic institutions to create democrats?
Contrary to popular belief, President Bush and his “neo-conservative” supporters were not the first to ask such questions. Nor were they the first to involve the United States in the business of promoting freedom and democracy abroad.
President Woodrow Wilson famously fought in the Great War in Europe, what we now call World War I, to “make the world safe for democracy.”
Today, those conservatives and Republicans who strongly support democracy are derided by others on the right as “neo-Wilsonians.”
Beginning in 1983, a Democratic congress, backed by a Republic President, Ronald Reagan, began appropriating funds to something called the National Endowment for the Democracies (NED), a private, non-profit organization “guided by the belief that freedom is a universal human aspiration that can be realized through the development of democratic institutions, procedures, and values.”
NED has given us, if nothing else, some good if fairly obscure scholarship on democracy and democratization.
Based largely on that scholarship, I would argue that democracy, or more precisely liberal democracy, requires the creation and maintenance of institutions of civil society, in particular:
* The rule of law
* An independent judiciary
* Freedom of association
* Guarantees of minority rights
* Frequent and fair elections
James Madison, one of the principle framers of the US Constitution, spelled out in the Federalist papers (No. 51) a challenge faced by democratic governments:
“In framing a government, which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed, and in the next place, oblige it to control itself.”
In other words, the government itself must be subject to the law and those in the government must be subject to the law.
One way to accomplish this is to define and limit the powers of the government under a constitution – which a country's basic and overarching law.
The Constitution sets out the rules that the citizens of the state agree to follow for governing themselves.
The Constitution enumerates the powers the people delegate to the government and the procedures that will be used to expand or reduce those powers.
The Constitution enumerates the rights of citizens; rights the government may not take them away without due process of law.
An effective Constitution serves as a contract between the governed and their government. It must be not merely what a majority wants, but what all citizens can reasonably be expected to accept.
Added to the American Constitution, as you know, is a Bill of Rights, a list of specific freedoms that the government may not take away from the people.
If you read the Bill of Rights carefully, you'll note that each one is really a restriction on government power, for example:
“Congress shall make no law respecting an establishment of religion … or abridging the freedom of speech, or of the press…”
“…the right of the people to keep and bear Arms, shall not be infringed “
The government is prohibited from conducting “unreasonable searches and seizures …”
Also: In the US and most countries of the Free World, we don't permit the same branch of government to make laws, administer laws and judge laws.
Rather the powers of government are divided between separate and independent branches. In the US, the executive, legislative and judicial branches also are intended to have equal power.
Winston Churchill called democracy the “worst” system of government – except for all the other systems that have been tried.
In other words: Democracy is not utopian. It doesn't attempt to eliminate conflicts. Rather it provides forums in which inevitable conflicts can be fought out within non-violent boundaries.
Most of you here today probably see democracy as superior to other models of government. The scholar Robert Dahl has summarized the advantages of democratic governance:
* Preventing rule by cruel and vicious autocrats
* Guaranteeing citizens fundamental rights
* Ensuring a range of personal freedoms
* Providing maximum opportunity for self-determination
* Promoting peace – modern democracies disagree but they do not fight one another.
In the 20th century a serious challenge to the democratic experiment was mounted by an alternative governmental model: totalitarianism, which took various forms, including Fascism, Nazism, Japanese Militarism and Communism.
One after another, those movements were defeated or died or weakened substantially. And after the collapse of the Soviet Union, it seemed to some that democracy was the only rational way to organize a government. This was the theme of Francis Fukuyama's controversial book: “The End of History.”
Because of this, regimes that are not democratic yet – such as Russia – claim that they are. Or, like China, they say they are moving “step by step” toward democracy.
Even North Korea chooses to call itself the Democratic People's Republic of Korea.
What was not counted on was the emergence of another variant of totalitarianism: Militant Islamism, an illiberal and anti-democratic transnational alternative to liberal democracy.
This ideology comes in a number of forms but it's fair to say it is based on the theories of two radical Egyptian intellectuals, Hassan al-Banna and Sayed Qutb.
It combined with the older teachings of Saudi Arabian Wahhabism, a variant of Islam that had worried Winston Churchill. The Wahhabis, he observed in 1921, “hold it as an article of duty, as well as of faith, to kill all who do not share their opinions and to make slaves of their wives and children.”
In addition, while Militant Islamism derives its legitimacy by citing religious doctrine and appealing to religious identity, but it incorporates key components of the totalitarian movements of the 20th century. For example:
Nazis believed in the supremacy of a race: Nazis insisted that Aryans must rule.
Communists believed in the supremacy of a class: the proletariat must rule.
Militant Islamists believe in the supremacy of a religion: Muslims must rule.
Yes, it's as simple as that.
Scholar Michael McFaul has said that if Hassan al-Banna and Sayed Qutb were the Marx of this ideology, Osama bin Laden can be seen as the Lenin.
Like Nazis and Communists, Militant Islamists – whether members of al-Qaeda or ruling clerics in Tehran – oppose the whole notion of democratic governance.
In this worldview of the movement, McFaul writes, “the central conflict in international affairs is not between states seeking to maximize their power. Rather, it is a normative Manichean struggle between the forces of good and evil.”
Rejecting democracy, this movement insists on “an alternative, values-based polity, which it submits is both better than any Western mode and also essential to living a proper Muslim life.”
It also is claimed that this model is divinely mandated. The Tunisian-born Muslim reformist Lafif Lakhdar has said simply: “Islamists are against democracy. For them, the legitimacy of government derives from Islamic religious law, not from elections." (MEMRI May 5, 3/17 Haaretz)
This also was very clearly articulated in Iranian President Mahmoud Ahmadinejad's recent letter to President Bush. For example, Ahmadinejad wrote:
"Liberalism and Western-style democracy have not been able to help realize the ideals of humanity. Today these two concepts have failed. Those with insight can already hear the sounds of the shattering and fall of the ideology and thoughts of the liberal democratic systems."
Militant Islamists believe that the law has been given by Allah and that this law – sharia – is perfect. They further believe that only members of the umma, the Muslim community, are entitled to rule or to participate fully in society.
Divinely granted authority can not be lent to unbelievers, to infidels and apostates.
Militant Islamists do not believe and cannot accept, as liberal democrats do, that the people, the citizenry, are sovereign, and that they merely delegate some of their sovereign power to the government, and that this delegation of power is the source of the government's authority.
Militant Islamists do not believe in equality between believers and infidels; do not believe in freedom of religion, do not believe in separation of church and state.
But it goes even deeper than that. For example, in 2002 Afghanistan was liberated from Taliban rule.
Before that, under Taliban rule, there could be no freedom of worship. The regime even when so far as to destroy the 1500 year-old Bamiyan statutes of the Buddha, viewing them as offensive reminders of a religion that has largely been eradicated in Afghanistan.
Afghan's Islamist clerics issued a decree declaring all the Buddhist statues in the country should be destroyed.
Mullah Mohammed Omar said: "Muslims should be proud of smashing idols. “
Even now, in liberated Afghanistan, tolerance is not a value that is widely embraced. Earlier this year, an Afghan by the name of Abdul Rahman, as part of a divorce proceeding, tried to get custody of his daughters in Kabul.
His wife's family told the court that he was unfit to care for his children because he had converted from Islam to Christianity some 16 years ago.
A prosecutor, hearing of the case, charged Mr. Rahman with apostasy, a crime punishable by death under some interpretations of Islamic law.
Within Afghanistan's new Constitution there was a tension, if not a contradiction. On the one hand, it states that "followers of other religions are free to exercise their faith and perform their religious rites within the limits of the provisions of the law," and it requires the state to adhere to the Universal Declaration of Human Rights, which clearly protects freedom of conscience and the right to change one's religion.
On the other hand, Afghanistan's judiciary upholds conservative Islamic values and views Sharia law as superior to any constitution written by human hands.
That idea is embedded in the Afghan Constitution as wel. It explicitly says that no law can be "contrary to the beliefs and provisions of Islam," and it gives judges broad power to interpret and apply Islamic law.
In the end, Afghan officials were faced with a Hobson's choice: Allow Mr. Rahman to be executed and suffer international condemnation; or antagonize Afghanistan's clerics which could have resulted in violence and even rebellion.
The solution: Mr. Rahman was spirited out of Afghanistan to Italy where he will be able to live and worship in peace among the infidels. (Whether the same will be true for his children, it is too soon to say.)
Now I should add that moderate and reformist Muslims have come up with creative solutions to such dilemmas. In Egypt, for instance, the Islamic Research Center decreed that although apostasy may be a crime, the time period for redemption is limitless - in other words, it is up to the individual, not the state, to adhere to divine will.
The difficulty is that moderate and reformists Muslims are everywhere under intense pressure. They are being threatened, intimidated and even attacked by Militant Islamists. And we in the West have done little to support them.
I agree with J. Alexander Their, a scholar with the Hoover Institution, that it is in our enlightened self-interest to partner with the citizens of other fledgling democracies -- particularly in Islamic countries -- as they struggle to understand the theory and practice of democratic governance.
Those who argue that there are few examples of democracy being exported to foreign lands have a point. But there are plenty of examples of democrats being supported in foreign lands.
In the 20th century, Americans and others expended vast resources on behalf of pro-democracy dissidents living under repressive regimes in Eastern Europe.
By contrast, until recently, there has been virtually no support for pro-democracy dissidents living under repressive regimes in the Middle East. Even today, the assistance we provide to those in the Middle East who share our values is a trickle compared to the river of funds that flow from Iran and Saudi Arabia to their allies around the world.
Iranian and Saudi rulers expect big returns on these investments.
It was not inevitable that Nazism, Fascism and Communism would fail in their attempts to destroy the democratic experiment. Nor can we be certain that the free peoples of the world will survive the war now being waged against them by Militant Islamism.
Unless America and its European allies show more resolve and unity than they have to date, the most radical regime in the Middle East will soon have nuclear weapons. The House of Sa'ud is being enriched as never before.
It is unlikely that the most devastating terrorist attack of the 21st century is behind us.
In the long run, freedom will advance or retreat depending largely on who is more determined -- its enemies or its defenders.
Maintaining the international status quo – liberty for those who consume gasoline, repression for those who pump it – may be the least realistic option of all.
“Advancing democracy is a struggle,” NED president Carl Gershman has written, “not a process of social engineering undertaken by bureaucrats.” And it requires much more than an occasional election in a place where government-controlled media, mosques and schools have glorified hate and celebrated suicide-bombers for years.
I am not arguing that democracy is the antidote for terrorism and the anti-democratic ideology of Militant Islamism. I am arguing that supporting democrats and pro-freedom dissidents must be part of the treatment. Backing oppressive regimes to maintain “stability” is a policy that has been tried and which has failed -- rather spectacularly.
Author: May, Clifford D.
Publication Type: Commentary
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