The recent health care debate has illuminated a common misconception about the nature of American democracy. Take, for instance, a recent comment by Bill O’Reilly on Justice Roberts’ ruling:
“According to his reasoning, the feds can now use the IRS to hurt any American who does not do what the feds think they should do. How is that different from a totalitarian government using agencies to control behavior? China does that, Cuba does that.”
The logic here is that what separates free and democratic governments from non-democratic, authoritarian governments is the list of things that government can’t make us do; essentially the Bill of Rights. China has no First Amendment, therefore the Chinese government can censure any speech it wants to, therefore Chinese society is not Free and China is not a Democracy.
But that’s actually inaccurate logic. In fact, many democracies have no Bill of Rights, and they get along just fine. To explain how, think about the obvious rebuttal to Justice Scalia’s argument when the health care law was being argued several months ago that if the government can force you to buy health insurance, then why can’t they force people to buy broccoli? The right answer to that question is that any politician which forced it’s people to buy broccoli would find probably find himself out of a job; and alternatively if the people decided that broccoli purchases were really that important to the common good that the politician were able to keep his job, that government then ought to have every right to do so.
The whole point of democracy is to put those decisions in the hands of the voters and their elected officials. The Bill of Rights doesn’t make us a democracy. Articles 1 and 2 of the Constitution make us a democracy. That’s where the Constitution lays out how we choose our leaders, and what fundamental powers those leaders have. That’s where the Constitution says that Congress has the ultimate power to set the budget and issue currency. That’s where the Constitution prevents the president from making unilateral appointments to fill high-level government positions. Jefferson and Madison originally didn’t even want to have a Bill of Rights; they thought that it would be unnecessary and were worried that the enumeration of some rights would imply that other rights did not exist.
Which brings us back to something that Roberts said in his decision: “It’s not our job to protect the people from the consequences of their political choices.” We are a democracy not because government has the ability to make us do things if it were to pass certain laws. We’re a democracy because we get to elect the people who pass those laws in the first place; and then every few years we get to decide whether or not they did a good job. Ultimately, Roberts got that. Because while the Supreme Court does have an important role to play as an arbiter of the law and the Constitution, at the end of the day if some other body usurps the right of the people to be the ultimate arbiter on important matters of policy–no matter if that body is a court, or a religious council, or a council of concerned and enlightened citizens–then we really have stopped living in a democracy.