5.7: The Paradox of Liberal Democracy

Americans’ beloved civil liberties have been redefined and reinterpreted many times since they were articulated in the Constitution and the Bill of Rights. This is due in part to the Founders’ brevity: phrases like “freedom of speech” and “cruel and unusual punishment” are vague enough to be interpreted numerous ways, and it often falls to the Supreme Court to determine which interpretations are most faithful to the Founders’ intent.

Technological changes have also cast civil liberties in a new light. The right to bear arms has a decidedly different ring to it in an era of automatic and semiautomatic weapons. The proliferation of the automobile raised new questions about what constitutes an unlawful search when vehicles are involved. The invention of the Internet had major implications for unlawful searches, free speech, and self-incrimination. (Can the police demand that you give them your laptop password if they have a warrant to search it? The Supreme Court hasn’t decided...yet.) In these and other instances, we have no choice but to go out on a limb to answer questions the Founders never anticipated.

Civil liberties are inextricably bound up with the idea of democracy: the diminishment of the former imperils the latter. Yet, paradoxically, protecting civil liberties is inherently undemocratic. Democracies are predicated on majority rule, which dictates that the course of action favored by most citizens is the one government should undertake — but the Bill of Rights is a long list of things the government cannot do, even if a majority of the people favors them.

The antimajoritarian nature of civil liberties illuminates whom they are protecting from whom. A civil liberty protects the people, but which people? People with popular opinions hardly need legal protection for their expression, but people with abhorrent, fringe, offensive views rely on the First Amendment to protect their right to say things most of us find reprehensible. Those of us lucky enough never to be charged with a crime will never benefit from the Sixth Amendment right to counsel, but alleged murderers and rapists (who are often convicted in the “court of public opinion” long before their trials, and whom the public would likely deny the right to legal representation if it could) definitely will. The Sixth Amendment right to counsel will never benefit those of us lucky enough to never be charged with a crime, but alleged murderers and rapists (who are often convicted in the “court of public opinion” long before their trials, and whom the public would likely deny the right to legal representation if it could) definitely will. If civil liberties protect these people from their government, and if democratic government is of, by, and for the people, then civil liberties protect the people from themselves — specifically, they protect the minority and the marginal from the majority and the mainstream.

Civil liberties are a vital “safety feature” of the American political machine. As with many machines, users are often tempted to disable the safety features for one reason or another. When we hear someone spew hateful rhetoric or watch someone accused of a heinous crime get off on a technicality, we sometimes fantasize about modifying one civil liberty or another, just this once. The paradox of liberal democracy reminds us that such modifications can backfire on us the moment we find ourselves in the minority and facing the majority’s wrath.