“The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!”
“What is our country coming to when a judge can halt a Homeland Security travel ban and anyone, even with bad intentions, can come into U.S.?”
Do you recognise these quotes? You probably do. These are just two of the tweets made by The US president Donald J. Trump in the aftermath of the lifting of his travel ban operated by a federal judge in Seattle. For the records, on the 10th of February, the judges of the US Ninth Circuit Court of Appeals refused to reinstate the travel ban, putting the whole matter to a halt, at least until the Supreme Court is called in to give a definitive ruling over it, which seems unlikely.
As per usual, Trump’s tweets have been reported by all existing media agencies and inflated in their meaning, as it happens with whatever he posts, resulting in a worldwide exhaustion on this topic. So, what’s the point in analysing these statements again? The point is that, in my opinion, they represent the incarnation of the great identity crisis that Western democracies are living right now, lacerated between principles of direct democracy and the representative and institutional structure that history gave them.
It is very easy to demonstrate that such a thing is not a characteristic of the US alone but of all western countries. Just try to recall that front page title of the Daily Mail after the English High Court ruled that the government didn’t have the power to trigger Brexit without the consent of the parliament back in November 2016, that headline “The Enemies of the People”, with the photos of the three judges attached below spoke for itself.
All of these are expressions of a common tendency that is revising the very meaning of democracy substituting it with the idea of the “will of the people”. Thus, if an idea, a policy, or even a candidate is backed by “the people” it is immediately considered as legitimate and any attempt to stop it is regarded as an attempt to stop democracy.
But democracy, at least the modern democracy, is completely disjointed from this principle. In fact, modern democratic states are founded on constitutions, that are rules and laws, not just “the people”. And the reason for such an arrangement is that without rules nothing more than chaos may be obtained. In an assembly, where everyone speaks and then decides, every choice is absolute and imposes itself on the previous ones because the will of the assembly itself is absolute, thus leading to different and often contradicting decisions that are not constrained by anything. But in that way democracy is most likely to destroy itself by choices that are not democratic at all, like electing a dictator, or promulgating a law that negatively address a specific category of citizens that have no power in the assembly itself.
For that reason, constitutions emerged, in order to limit the absolute power of the assembly and to make rational decision making processes possible, allowing for policies to be adopted under some previously agreed rules that ensure the control of these resolutions by other organisms, like the judiciary power.
Constitutions exist to ensure freedom, because full direct democracy has shown not to be able to preserve such a principle, and when they were override “in the name of the people” only dictatorships rose.
These rules are not set in stone though, neither they should be conceived as always rightful. They are the product of human actions and as that they can be changed and ameliorated, but such a process must follow the legal path that it requires. Trying to override these rules without following the required institutional measures that such a thing would require means to threaten the very existence of the modern state.
But why are western democracies taking this dangerous direction?
There is a variety of complex reasons behind this development, but part of the responsibility surely lies with the politicians belonging to the mainstream political parties who often hid behind the complexity of the checks and balances’ system to justify their inability to produce good policies. Moreover, add that to an ever more complicated and unstable socio-political environment, where poor people get poorer and rich ones richer and you obtain the ultimate argument against traditional policymaking.
The increasing popularity of “anti-system” parties (sorry for the oxymoron) is just one effect of this crisis and of the disaffection towards the traditional representative democracy, with politicians that see in the autocratic Putin the image of the perfect leader.
To conclude, what can we do to stop such a process?
First, get informed. Try to get as much information as you can about your country and about how the policymaking system works.
Second, listen carefully to who talks (or better, pretends to talk) on the behalf of “the people”. Then asks yourself: but who is the people? To whom are they referring to when they say that? You will notice that maybe their entitlement is just as fake as their arguments.
Third, try to take back the control of the political sphere and to actively participate to the political debate as much as possible. To solve the global crises that the world is facing and will continue to face there will not be the politicians that already failed us and created these problems, nether the ones that think to solve them simply acting over the rule of the law. This is a task that we will be asked to address, and we will have to be ready.