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A “Krytocracy”? Yes and No

“The Bush brothers’ refusal to prevent Terri’s killing will do lasting political damage to them both,” writes [Jack]Wheeler. “As John Fund of the Wall Street Journal points out, if Janet Reno could override a court order and have Elian Gonzalez kidnapped at gunpoint to be returned to Communist Cuba, either Jeb or George Bush could have overridden Greer to save Terri’s life. Her death will be an ineradicable stain on GW’s presidency and Jeb’s chances for the White House.”

Wheeler then mentions a possible silver lining to the story.

“If any good is to come of this tragedy it would be to catalyze the recognition among Americans that America is no longer a democracy,” Wheeler explains. “It has become a krytocracy, a government of judges. We no longer have a government of, by and for the people. America today is ruled not by elected representatives, but unelected judges, governed not by law but by the arbitrary – and in the case of George Greer, homicidal – whims of people in black robes.” ~WorldNetDaily.com [1]

One of the things that has bothered me about the obscene political controversy over the late Mrs. Schiavo is just this sort of confused contempt for the courts among “conservatives” and the resulting trust in “the people” (as if it were not the people’s representatives who had created the laws that they have found so inadequate). Besides being probably the exact opposite of real conservative instincts, which never trust “the people,” though they may trust in groups of people known to us, this particular reaction is seriously misguided. There are good reasons to have contempt for the federal and state judiciaries on the many occasions when they exceed their legitimate authority to engage in effective legislation, taxation or social engineering. For those of us of a very strict constructionist persuasion, the very idea of federal judicial review is an unconstitutional invention, the first judicial usurpation from which all the others sprang. When judges substitute foreign law, personal ideology, popular opinion or faddish notions for the law, then we can accuse them rightly of subverting the law. When they pretend to be the ultimate authorities in the land, we can properly accuse them of setting up an unaccoutable, unchecked oligarchy. None of these things really happened in this case, and yet the contempt for the law and the courts is immeasurably stronger because of this case than it has been for many other legitimate causes of outrage.

Though this is not the main reason to have taken a less hysterical view of Mrs. Schiavo’s plight, we should be aware that the consequences of this inordinate contempt for any court and law that “conservatives” find disagreeable will be to weaken any possibility of reducing the scope of the judiciary’s jurisdiction. The real kritokratic tendencies will be aided by this blind and senseless attack on the courts for having for once simply fulfilled their proper mandate.

The usurpers, lawbreakers and ideologues were the moving forces behind the Florida legislature’s bill of dubious constitutionality, and then behind the preposterous federal legislation. Such are the same who would have wanted police or soldiers to abscond with this poor woman’s body, quite forgetting the appropriate scandal and horror people on both sides of the debate felt when they saw men armed with automatic weapons dragging away Elian Gonzalez. I have heard the argument, “If it was good enough for Clinton…” more than a few times from many so-called conservatives, and it seems as if they have no conception of the terribly base and low thing they have just said. It was often used to justify the invasion of Iraq (“even Clinton supported regime change!”), as if the recommendation of the morally wayward and disreputable was a vote of confidence in the justice of a cause.

Very often, though not always, these sorts of debates have boiled down into a partisan fight in which it is assumed that the illegitimate means of the other party, if used by “one of us,” will suddenly become legitimate. Arbitrary and unconstitutional decisions become acceptable if they further the cause of “life” rather than “death,” and the unprovoked attack on another country becomes better if done out of spurious “self-defense” than “human rights.” There is the even worse response that the “means” have ceased to matter, as long some general principle is upheld, at which point one has become an ideologue. For that rara avis who is unreservedly pro-life, opposed both Kosovo and Iraq and finds the hysteria over the late Mrs. Schiavo more than a touch hysterical and bizarre (because it appears quite distinct from opposition to real euthanasia and the rest of the culture of death), the contending parties in this latest controversy appear to have lost all sense of proportion, which is one of the essential qualities of justice.

For once in our own times, the judiciary has served as a mediating and moderating force, rather than an empowering force, on the foolishness and lack of proportion in popular government. Rather than helping to dissolve intermediaries between central power and the family, the courts reaffirmed one of those barriers. Not being able to see the forest for the trees, as usual, the activists and single-cause conservatives are now damning the court system even when it does what the law requires, because at that point they have discovered they no longer agree with what the law says, either. So it has ceased to be a matter of arrogant judges usurping authority, but simply an impatience with the rule of law where the law does not fit “our” preferences–this is potentially a revolutionary and unhealthy impulse. The remedy for unacceptable laws, if there is one, as Dr. Wheeler might consider, is changing the law through the very representative government he seems to believe is so very dead.

Finally, not to be too pedantic, the proper transliteration of a rule by judges from Greek would kritokrateia or kritocracy, not krytocracy (krites is spelt with an iota, not an upsilon).

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2 Comments To "A “Krytocracy”? Yes and No"

#1 Comment By Jim Newland On April 3, 2005 @ 1:37 am

I think, Daniel, you have too knee-jerk a reaction to the word “democracy.” While I agree that a pure democracy is a form of government to be avoided, nevertheless there are strong democratic elements in our Constitution which were put there for good reason. Hence, when I for one call for “more democracy” in America, I’m not suggesting that something should change or be added to our laws. Rather, I’m asking only that the measure of democracy that is already in our laws be respected, which it currently is not. (I’m not talking about the Schiavo case here; I just mean in general.)

I can’t answer for others who are hankering for “democracy,” but I wanted to clear up what I meant when I talked about it earlier.

#2 Comment By Daniel Larison On April 4, 2005 @ 11:13 am

It is possible that I have developed something of an instinctive aversion to democracy, whether real or supposed, but I want to reiterate that what I am objecting to here and elsewhere when I deride democracy and popular government is the unrestrained democratic impulse and the much more unmediated practice of democracy of the last century that has devastated the healthy balance that mixed government afforded. I’m afraid I have neglected to edit the review of Prof. Lukacs’ book as I have been keeping up with the most recent controversies and news, but I think you will find that the target of my criticism is the same unmitigated populism that his book condemns.

I think I still understand your respect for the role the democratic element plays in the constitutional, mixed system, and this not what I am critiquing. As I tried to explain when this point came up earlier, just such a balanced republican system in which a democratic element is an important part, but not dominant, is exactly the sort of sustainable practice of democracy that Tocqueville perceived and which the Old Republic, which I believe we both respect very much, possessed. When democracy becames unrestrained and untrammeled, as it has become and as it had been operating in the controversy over Mrs. Schiavo, it is not just prone to error but capable of becoming genuinely destructive of good order. We are suffering from tendencies towards the lawless democracy that Aristotle associated with the rule of demagogues. The attitude I was criticising in the excerpts from Dr. Wheeler’s article was the very mob-like hostility to the rule of law springing up in the name of “the people” as expressed by various “conservative” activists. Those who, such as Hugh Hewitt or Marvin Olasky, regard the Schiavo case as proof of “judicial tyranny,” when this case involved anything except that, are the people whom I am arguing against.

It may be that the chosen rhetoric of such activists and pundits, invoking democracy against the “kritocracy,” is as fraudulent as the neocons’ exhortations to democracy, but in the process of this controversy we have seen activists demagogue this issue and also seen the people’s representatives meddle in the issue precisely because of the demagoguery. It is that impulse latent in all popular government that the rule of law is meant to check, and for once the judiciary did its job in not bowing to popular hysteria or faddish notions. Instead of acknowledging this, the activists, supposed representatives of popular government, have denounced the judges involved with every insult under the sun. This is not an example of the common wisdom of ordinary people halting the schemes of self-serving ministers and legislators, which is the real value of a democratic element in government, but of the passions of the crowd being incited to tear down legal barriers in the (perhaps unwitting) service of the expansion of state power.