Imagine a place where free citizens could be called before tribunals on charges brought against them by other citizens. The charges might be as general and unprovable as “corrupting the youth” or maybe “not believing properly in the gods of the community.”
Five hundred citizens would gather and hear the charges. They would then vote and a simple majority of the assembly was enough to convict the accused—sometimes sentencing him or her to death. Imagine no rule of law, no expert investigations, no judicial rulings on evidence.
Imagine that an accusation and the simple momentary will of the people was enough to end a person’s livelihood and life.
The place I have in mind wasn’t a fictional dystopia. It was not Pol Pot’s Cambodia or Mao’s China. These people who ran this system weren’t Soviet apparatchiks. In fact, the city-state I just described was the first and greatest of the world’s democracies. This was celebrated Athens—the birthplace of philosophy and democracy, the home of renowned sculptors and architects and scientists. This was the home of Plato and Aristotle and the authors of the great Greek tragedies.
A Democracy or a Republic?
Today, we consider ourselves to be living in a “democracy.” This word has come to replace what Benjamin Franklin and the other framers of the Constitution believed they had given us—a republic. What is the difference? To the framers, democracy meant an unbridled majority will that could trample on the rights of minorities. A republic, by contract, was a system of government based in representation in which institutional checks and balances would be in place to protect minority rights.James Madison made the best contrast between what they understood to be democracies and republics in Federalist No. 10. In that essay, he reminds us still that majorities aren’t always right and, in fact, are often very wrong and are willing to trample the rights of individuals and minorities when it’s their will to do so. Minority groups are seldom better, when given power.
In this current summer of mass protests, a rampant “cancel culture” roving through cyberspace claiming their trophies, vandalism brought against buildings and public art, and groups declaring autonomous zones free of police and the rule of law, it’s essential that we remind ourselves of the wisdom of Madison and the framers of our constitutional order.
We’re beginning to see serious cracks in the institutional framework and cultural expectations that are meant to protect individuals from the will of a momentary assembly. Feckless politicians are giving the streets over to mobs. Police have been ordered to stand back as groups, under the cover of darkness, descend upon statues and pull them down. Governors are banning gatherings in churches and large family picnics but turn the other way when mass gatherings of people, some masked, some not, link arms and march.
Breonna Taylor
While it’s happening all over the nation, we should pay particular attention to what’s happening in Louisville, Kentucky.On March 13, shortly after midnight, Louisville police executed a no-knock search warrant at the home of Breonna Taylor, where police believed drug dealing was occurring; there seems to have been some intelligence that her home was being used to receive and store the product. The results of the full investigation have yet to be released, but we do know that her boyfriend, Kenneth Walker, had a gun, and when police bashed in the door, he fired at them. The police returned fire into the residence and Taylor ended up fatally shot.
While Walker and Taylor seem to have believed they were victims of a home invasion, the police believed they were under hostile fire.
It’s a tragedy that, second only to the killing of George Floyd, has fired the wave of protests and the accompanying violence across the country. It has also sparked police reforms and a newly empowered Black Lives Matter movement.
What is unfolding in Kentucky is worth watching, because it’s a microcosm of the attack on the rule of law that’s sweeping the nation. Peaceful protests have become riots. Riots have damaged buildings and forced the closure of businesses, and the mayor has been powerless to stop it.
One officer has been fired for firing blindly into the home and charges have been dropped against Walker for shooting a police officer. But the protesters are demanding something else. They are demanding “immediate” justice. They’re not demanding a full and thorough investigation that takes time and is done right. The case is now in the hands of Kentucky’s young black Attorney General Daniel Cameron, who has urged patience and said the investigation will take time.
But that’s not good enough for the protesters.
Their cry is “What do we want? Justice! When do we want it? Now!” “No Justice, no peace,” they chant.
Our Only Hope
The United States has had serious problems with the legal system being used in a racist manner. But what the more radical among the protesters and the cancel culture warriors fail to realize is that the rule of law is our only hope if we want to live in a world in which actual justice and not mere force (of the establishment or of an aggrieved group) is to rule the day.Our founders knew their history and knew how Athenian assemblies had hastily sinned against justice and free thought. Americans built a system to prevent force from replacing judgment, and that was to protect minority thoughts from majority tyranny. On the internet and in the boardrooms, in the streets and in our classrooms, we’re beginning to lose trust in the institutional and cultural safeguards past generations so carefully worked to construct.
We need more Socrates’ and less Athenian assemblies in 2020.
