I have had to deal with trade-oﬀs between accessibility and thoroughness.
To help make the points where accessibility trumps thoroughness
more bearable for the academics, I have tried to ﬂag the spots where crucial
issues have been bracketed, and in some places I include in the footnotes
some of the requisite detail. Where the discussion makes unavoidable
the introduction of some nuance or complication that could test the
patience of a non-academic reader, I try to slow down and raise a few
examples. Unsurprisingly, neither of these strategies is perfect with respect
to appeasing the incompatible demands of the diﬀerent audiences that
I am trying to address simultaneously, but this might be the best one can
do. In any case, if this book stimulates reasoned criticism and counterarguments
from those who oppose my claims, I will have achieved some
measure of success.
10 Democracy and moral conﬂict
chapter 1
The problem of deep politics
In the Introduction, I characterized the problem to which this book is
addressed as that of ﬁnding an alternative to a Hobbesian war of all against
all under conditions of moral pluralism. This characterization of the problem
is, of course, very rough and imprecise. In order to make headway in
understanding, and hopefully solving, the problem that moral pluralism
sets for democratic politics, we will need to begin from a more detailed and
nuanced analysis of that problem. This is what I provide in this chapter.
i the paradox of democratic justification
Framing the paradox
Imagine a society in which the legitimacy of the government – its institutions,
procedures, laws, decisions, oﬃce-holders, and policies – is held to
rest, at least indirectly, upon the consent of those it governs. Imagine further
that action on the part of both the government and the citizenry is constrained
by a set of rules speciﬁed in a public constitution. This constitution
contains procedural provisions not only for holding regular elections,
dividing political authority, checking political power, and punishing abuses,
but also for its own criticism and revision. Additionally, let us say that the
constitution speciﬁes a set of protections for individuals from interference
by the government, by foreign governments, and by other individuals, what
is often referred to as a “menu” or “schedule” of rights and liberties. This
menu speciﬁes rights to hold and exchange property, to privacy, to equal
protection under the law, to due process, and so on. In addition to these,
the constitution also identiﬁes rights of individual conscience. That is,
individuals in our imagined society enjoy freedoms of thought, expression,
assembly, petition, and religion, all within the constraint that each is
entitled to as extensive a share of such liberties as is consistent with there
being an equal share for all.
11
Under political conditions secured by such a constitution, it is natural
to expect there to emerge a bustling and vibrant civil society of multiple
organizations and groups directed to a diversity of ends. Accordingly, we
may imagine that our citizens belong to, or participate in, a range of
voluntary and aﬀective associations, from religious groups, ethnic organizations,
and political alliances to social clubs and cliques. One result of this
is that a variety of moral doctrines will ﬂourish in the society. We should
expect that our imagined citizens will not share a common collection of
moral commitments; instead, a diversity of such commitments should be
expected to thrive among citizens.
It seems suitable to further suppose that citizens will generally take
certain percepts among these commitments to be basic. That is, each citizen
will take the core of his moral or religious doctrine to specify values, aims,
and ends that are fundamental to living a proper life, both individually and
in relation to others. Moreover, we should expect that the varied moral and
religious doctrines that thrive among citizens do not form a consistent set.
Accordingly, our imagined citizens will disagree over fundamental matters
of right, obligation, duty, value, good, virtue, happiness, and justice. Of
course, we should expect that many, if not all, of the doctrines endorsed
by citizens will include a conception of toleration and will accordingly
prescribe or require toleration with respect to a certain subset of opposing
views. But we should also expect the notion of toleration to be interpreted
diﬀerently by each doctrine, such that within every doctrine there will be a
discrimination made between opposing doctrines that are acceptable objects
of tolerance and those that are not.
A distinction is called for here. I have said that every doctrine which
contains a conception of toleration will distinguish between opposing
doctrines that deserve to be tolerated and those that do not. In this latter
category there will be, on the one hand, opposing doctrines that, while not
deserving of toleration, nonetheless may be tolerated under appropriate
circumstances; on the other hand, there will be opposing doctrines that not
only do not deserve toleration but must be not tolerated. In other words,
every doctrine that contains a conception of toleration will nonetheless
identify certain opposing doctrines as beyond the pale and, therefore,
intolerable; in the case of intolerable opposing doctrines, what is morally
required is intolerance.
Thus, it is possible to specify for each doctrine the scope of its conception
of toleration. On some doctrines, toleration will be construed very broadly;
very few opposing doctrines will be taken to be undeserving of tolerance
and fewer still will be taken to require intolerance. Other doctrines will
12 Democracy and moral conﬂict
contain a narrow conception of toleration, extending tolerance only to
those opposing doctrines that are very close relatives to themselves. There
will, of course, be a wide variety of positions in between these two poles.
Many doctrines will endorse the roughly Millian standard of toleration:
one must tolerate anything that does not constitute harm to others. Others
will draw the line between the tolerable and intolerable diﬀerently and on
the basis of diﬀerent considerations. And even among those that accept a
roughly Millian standard, there will be considerable disagreement about the
scope and nature of the concept of harm.
Accordingly, the citizens I have been asking you to imagine will diﬀer not
only at the level of their substantive doctrines of the good; they will also
disagree about which sub-optimal moral and political arrangements are
even tolerable. Given this, there will be not only disagreements, but conﬂicts
among citizens holding diﬀerent doctrines.
In addition to this, let us suppose that conditions of moral pluralism
obtain. That is, let us suppose that there is a plurality of moral doctrines –
religious, secular, what have you – that conﬂict with each other but nonetheless
individually meet some rather loose conditions for minimal plausibility.
Let us say that a doctrine is at least minimally plausible if it is
internally coherent, is able to speak to the normal range of moral phenomena,
seems based in a reasonable conception of human moral psychology,
can proﬀer moral prescriptions that are able to guide action, and is supported
by a range of considerations typically thought to be relevant to the
justiﬁcation of a moral doctrine. As I said, we need only a loose conception
of plausibility here. The presumption of moral pluralism, then, comes to
this: for every citizen holding a plausible doctrine, there are other citizens
holding opposing but also plausible doctrines. We need not worry over
diﬀerent degrees of plausibility, or whether and when opposed doctrines are
equally plausible. Further, we need not take a position concerning citizens
holding implausible doctrines, or whether and when such doctrines deserve
toleration. We are simply concerned to say that the fact of persistent and
deep disagreement over fundamental moral doctrines is not in itself an
indication of deeply entrenched irrationality; in other words, we are committed
to the idea that sane, intelligent, sincere, and informed persons can
come to hold diﬀerent (and opposing) moral doctrines.
To be clear, moral pluralism in this sense is not moral relativism. In
supposing that moral pluralism obtains, I am not thereby committing to the
idea that all moral and religious doctrines are true (despite their being
inconsistent with each other), or that their truth is relative to an agent’s
beliefs, interests, community, or culture. Moreover, moral pluralism is not
The problem of deep politics 13
skepticism. By accepting moral pluralism, one is not committed to the
claim that all moral and religious doctrines are false, or nonsense, or noncognitive,
or unjustiﬁed. One can acknowledge moral pluralism while being
committed to the ﬁnal, objective, universal truth of one’s own moral
doctrine. All that moral pluralism requires is that one countenance the
possibility of what might be called honest moral error – well-intentioned,
sincere, informed, and rational agents doing their epistemic best can still
wind up with false moral beliefs. This is simply the recognition that getting
moral matters right is diﬃcult. We can say, then, that moral pluralism, as the
term is being employed here, is not itself a moral theory or a theory about
morality; it is rather a claim about moral theories. More precisely, it is a
claim about the travails of moral theorizing. And it is a rather mundane
claim at that. Moral pluralism is the strictly descriptive claim that, at
present, there are many minimally plausible moral doctrines, both secular
and religious. To deny moral pluralism, then, is to assert that those who
hold moral doctrines that are diﬀerent from your own are not only mistaken,
but necessarily inept, benighted, stupid, and perhaps insane. In other
words, to deny moral pluralism is to deny that there is a distinction between
being wrong and being out of one’s mind. Only the most extreme fanatics
take such a view.
I will have something further to say about fanatics below and in a later
chapter. For now the point is this: given that moral pluralism obtains,
conﬂict among citizens over fundamental commitments is not only inevitable,
but many such conﬂicts are, at least at present and for practical
purposes, rationally irresolvable. To repeat, the fact that citizens disagree
at the level of plausible doctrines does not entail that at least some citizens
are irrational, foolish, or benighted. Moral pluralism means instead that
reasonable, intelligent, and sincere persons operating under favorable epistemic
conditions can come to diﬀerent but plausible conclusions about
fundamental questions. Indeed, it is widespread consensus at fundamental
moral levels, not moral disagreement, that is a symptom of irrationality,
insincerity, or even, as John Rawls held, oppression (2005: 37).
Thus, we have before us an imaginary society. Let us say that the
constitution I have asked you to imagine instantiates a kind of political
and social order that can be called constitutional democracy, or just democracy
for short.1
If you are willing to allow that this imagined democracy resembles
our own in the relevant respects, then we must confront a potentially
1
I shall use the term democracy in this way throughout this book. Some would insist that I have
described a liberal democracy. Depending on the details regarding what is meant by the term, I would
14 Democracy and moral conﬂict
crushing dilemma: the core democratic idea that legitimacy of the democratic
state rests upon the consent of those governed by it requires us to
articulate principles that supply the justiﬁcation for our government;
however, the fact that citizens are deeply divided over fundamental commitments
renders any such principles essentially contestable and, therefore,
unlikely objects of widespread agreement. It seems, then, that the very
liberties that constitute the core of democracy render the democracy’s own
conception of legitimacy unsatisﬁable. This is the paradox of democratic
justiﬁcation.
It may appear that the paradox of democratic justiﬁcation is a puzzle
of merely academic interest and, therefore, of little consequence for the
real world of democratic politics. But this is not the case. The paradox
of democratic justiﬁcation pervades our politics; contemporary democratic
societies are plagued with controversies and clashes that emerge from the
need for a democratic political order to justify itself to a morally and
religiously conﬂicted citizenry. Let us consider brieﬂy a few examples.
(1) The science curriculum
Throughout the United States, citizen groups and various religious organizations
have fought to introduce referenda regarding the state-controlled
science curriculum in public schools. According to many citizens, the
theory of evolution, the cornerstone of modern biology by any reasonable
measure, conﬂicts with their fundamental commitments concerning the
origins, nature, and purpose of human life. In fact, according to some
citizens, the theory of evolution is not simply incorrect in its account of
life, but, in addition, is morally and intellectually corrupting. Given the
compulsory nature of primary and secondary education, citizens demand
that the curriculum of the public schools reﬂect – or at the very least not
undermine – the values and commitments of the communities they serve.
Biologists and other science advocates contend that the evidence in favor
of evolution is overwhelming, and that the duty of a science curriculum
is to impart science’s best understanding of the truth. Opponents have
countered that the theory of evolution is in fact not the best understanding
of biological life, and have contended that a competing theory, the theory
of intelligent design, is a viable competitor; they have thus called for a
curriculum that gives equal time to intelligent design theory, insisting
that the biology curriculum should “teach the debate.” Biologists have
not resist this. However, I think the terms liberal and liberalism, as they are employed in the academic
literature (to say nothing of how they are used in popular discussion of politics), have become nearly
useless, and so I avoid them when possible.
The problem of deep politics 15
responded that intelligent design is not properly a scientiﬁc theory and
hence not a viable alternative to the theory of evolution; hence, they
contend, there is no debate to teach.
(2) Gay marriage
In 2004, twelve states in the United States placed on their election ballots
referenda calling for amendments to their respective state constitutions to
oﬃcially deﬁne marriage as a relationship between one man and one
woman, thereby blocking marriage among same-sex couples. Much of the
opposition to gay marriage is driven by the moral commitment, shared
by many religious citizens, that homosexuality is a grave moral evil and,
therefore, something that the state should not endorse. According to such
citizens, extending marriage to same-sex couples is tantamount to morally
validating homosexual relationships, something they feel morally compelled
to oppose.2
Advocates of gay marriage contend that the issue has nothing to do with
the morality of homosexuality, but is instead a simple question of justice.
Advocates hold that legal equality demands that the same rights and
privileges available to heterosexual couples by way of the institution of
marriage must be available to all citizens, regardless of sexual orientation.
To restrict marriage to heterosexual couples is to discriminate against
homosexuals on the basis of a morally irrelevant characteristic, which is
blatantly unjust.
(3) The jury and the Bible
In May 2003, Judge John E. Vigil of Adams County District Court in
Colorado overturned the death sentence of a convicted rapist and murderer
after discovering that jurors had consulted the Bible during deliberations.
According to Vigil, “Jury resort to biblical code has no place in a constitutional
death penalty proceeding.”3
Vigil’s reasoning has it that since not all
citizens accept the moral authority of the Bible, and are in fact not legally
required to do so, the jury’s appeal to the Bible in sentencing deliberations is
tantamount to imposing a moral authority on the convicted. In March 2005,
2
Compare the Vatican’s 2003 statement, “Those who would move from tolerance to the legitimization
of speciﬁc rights for cohabiting homosexual persons need to be reminded that approval or legalization of
evil is something far diﬀerent from the toleration of evil. In those situations where homosexual unions
have been legally recognized or have been given the legal status and rights belonging to marriage, clear
and emphatic opposition is a duty.” Considerations Regarding Proposals to Give Legal Recognition to Unions
Between Homosexual Persons, II.5 (www.vatican.va/roman_curia/congregations/cfaith/documents/
rc_con_cfaith_doc_20030731_homosexual-unions_en.html (accessed May 5, 2008).
3
New York Times, “Bible Reading Voids Death Sentence,” May 24, 2003, p. A-13.
16 Democracy and moral conﬂict
the Supreme Court of Colorado upheld Vigil’s judgment, holding that
jurors acted inappropriately in consulting “extraneous prejudicial materials”
during deliberations, which is explicitly forbidden in the instructions given
to jurors.4
Critics maintain that the rulings violate, or at least disrespect, the most
fundamental commitments of most US citizens. The courts’ requirement that
jurors must not introduce into deliberations moral considerations drawn
from their deepest convictions creates for many citizens a conﬂict of conscience.
On the one hand, they are charged with the task of discerning justice;
on the other hand, they are forbidden from bringing their fundamental
commitments concerning the nature of justice to bear on their deliberations.
The demand that jurors omit from their deliberations what they take to be
morally authoritative texts seems to some itself a violation of justice.
(4) Pharmacists and emergency contraception
Pharmacists in several states in the United States have refused to ﬁll
prescriptions for emergency contraception, the so-called “morning-after
pill.” Believing that such forms of contraception are abortifacients, prolife
pharmacists have appealed to a supposed right of conscience to refuse to
dispense them. They argue that to dispense emergency contraception is to
be complicit in the unjust ending of a human life, a complicity which
violates their deepest moral convictions.
Critics claim that since emergency contraceptives are legal, pharmacists
may not legitimately refuse to ﬁll legally obtained prescriptions for them;
to do so, the critics claim, is to unjustly interfere with the rights of those to
whom the contraceptives have been prescribed. Pharmacists have responded
that their refusal to dispense emergency contraceptives does not interfere
with anyone’s rights, since they are not preventing people from ﬁlling their
prescriptions with another pharmacist; at worst, the pharmacists say, they
are making the procurement of the contraception less convenient. Critics
reply that since the eﬀectiveness of emergency contraception is in part
determined by how soon it is taken after an unprotected sexual encounter,
a pharmacist’s refusal to ﬁll a prescription could seriously interfere with a
woman’s rights.
These examples are by no means exhaustive. Consider also that similar
analyses can be produced regarding controversies surrounding aﬃrmative
4
People v. Harlan, Colorado Supreme Court, Case No. 03SA173, p. 2. www.courts.state.co.us/supct/
opinions/2003/03SA173.pdf (accessed July 14, 2005).
The problem of deep politics 17
action, abortion, stem-cell research, euthanasia, public displays of religious
symbols, the “under God” phrase in the Pledge of Allegiance, Catholic
bishops denying Holy Communion to pro-choice Catholic politicians,
conﬁrmation proceedings and so-called “litmus tests” for Supreme Court
nominees, and governmental intervention in end-of-life decisions.
Additional examples are easy to cite.
I introduce these cases not with a view to settling the disputes they
describe. Surely these issues are too complex to be captured adequately in
the brief glosses above, and I strongly suspect that no single book can
reasonably hope to address even one of these issues in any comprehensive
or ﬁnal way. I raise them instead for the purpose of demonstrating the
pervasiveness of the paradox of democratic justiﬁcation.
To be sure, there are many important respects in which these cases diﬀer.
For example, some deal directly with legal issues, others are focused on
public policy, and some concern the private sphere of individual relations.
Despite these and other important diﬀerences, however, the cases described
above share the following common structure. In each case a political
decision must be made that will impact persons on all sides of the dispute.
And in each case the legitimacy of the decision reached rests ultimately
upon the success of the justiﬁcation for the decision that can be oﬀered to all
aﬀected parties. However, each party to these disputes understands the
controversy in question to implicate some value that they hold as fundamental
and hence inviolable; accordingly, they see the violation of the value
in question to be intolerable. For example, in the debate over teaching
evolution in the public school biology curriculum, each side sees the
other as an opponent, indeed, an enemy, of proper education. According
to many religious anti-evolutionists, a proper education must bring one
closer to the truth that is contained in the Bible. Any proposed account of
life which contends that it can be explained without direct reference to
God’s act of creation is, on this view, therefore, anti-educative. Biologists by
contrast are more inclined to see the proper aims of education – especially
science education – in strictly secular terms. The aims of scientiﬁc explanation,
and of science education, are, on this view, diﬀerent from the aims
of religion and religious instruction, and, indeed, these diﬀerent aims must
be kept distinct. Hence one party to the debate takes its fundamental
commitment to be the dissemination of the best scientiﬁc understandings
of the world, whereas the other takes the salvation of souls to be the most
basic objective. When these two objectives clash, the conﬂict is intractable
unless at least one party is willing to compromise its fundamental commitments.
The situation is similar in the cases of gay marriage and emergency
18 Democracy and moral conﬂict
contraception. According to the advocates, in matters of public policy,
justice always trumps sectarian moral codes; opponents contend that
there could be no justice outside of the proper moral code, and that since
proper morality forbids homosexuality and abortion, so too does justice
demand that it be forbidden or at least discouraged. Again, the conﬂict is
intractable without compromise.
But for those who are embroiled in these conﬂicts and understand them
in this way, no resolution that does not fully reﬂect their own values is
morally acceptable or tolerable, and hence no compromise position is
morally available to them. Yet something must be done – even a decision
not to decide constitutes a decision to allow the status quo to stand – and in
each case some party’s most fundamental values will lose out. How can this
arrangement be justiﬁed to those whose fundamental commitments must
be compromised? Hence, the paradox: legitimacy requires that democratic
decisions be justiﬁable to all citizens, but when citizens are deeply divided at
the most fundamental moral levels, they are also divided over what constitutes
a successful moral justiﬁcation. And so it seems that democratic
justiﬁcation – and thus democratic legitimacy – is impossible when citizens
are deeply divided at the level of basic moral commitments.
Is the paradox pseudo-problematic?
Before proceeding, it may be helpful to dispose of two likely ﬁrst-blush
responses that propose to show that the paradox of democratic justiﬁcation
is pseudo-problematic. First, one may argue that in framing the paradox
I have cast democratic citizens as uncompromising fanatics. The critic will
continue that it is, of course, true that democracy cannot exist among
fanatical individuals, because it is a precondition of democracy that citizens
be willing to compromise. However, the critic continues, it is simply not the
case that citizens in existing democracies are divided over fundamental
commitments in the way my descriptions have supposed. So, the critic
concludes, the paradox of democratic justiﬁcation is of no serious concern,
it is at best an academic puzzle.
But this criticism is too hasty. It is certainly true that citizens in contemporary
democratic societies are not fanatical, and most are willing to
accept democratic compromises on the majority of issues. However, for
every democratic citizen there are limits to morally tolerable compromise
and, therefore, there are certain issues concerning which they feel morally
bound not to compromise. For example, no democratic citizen believes that
one must compromise with persons holding tyrannical, authoritarian, or
The problem of deep politics 19
fascist doctrines. To be sure, democrats must tolerate Nazis marching in
Chicago, for example. But tolerance is due only for as long as the marching
Nazis operate within the constraints speciﬁed by democratic law. The
marching Nazis must apply for the requisite permits, they must obey all
local regulations governing street demonstrations, they must remain
orderly, they must not make threats to onlookers or destroy property, and
so on. However, there is an important sense in which Nazis operating
within the requisite democratic constraints are not Nazis at all, but people
merely playing at being Nazis (Macedo 1990: 260).5
Real, bona ﬁde Nazis do
not recognize the authority of democratic law, and are committed to using
force to undermine or destabilize non-Nazi regimes. Accordingly, democratic
citizens cannot tolerate real Nazis in their midst, and cannot compromise
with real Nazis without thereby abandoning their own democratic
commitments. So, to respond to the objection, most citizens of contemporary
democratic societies recognize that democracy requires them to compromise
with other democrats. But where there are deep divisions among
citizens regarding fundamental matters, there is likely to be deep disagreement
over who is and who is not a true or “in good faith” democrat and,
therefore, there is likely to be deep disagreement about who is and who is
not tolerable.
The critic may concede these points, but insist that democratic citizens
are in general not divided to the degree that is required to generate the
paradox. Perhaps the critic is correct. Let us for the moment grant that he is
correct. However, there surely are cases of controversy that seem very close
to the kind of division I have been discussing. Consider, for example, the
abortion debate in the United States. The radical anti-abortion organization,
Operation Rescue, refers to legalized abortion as the “American
holocaust,” likening medical facilities that perform abortions as “death
camps.”6
By using language that compares the system of legal abortion in
the United States to Nazi Germany, Operation Rescue means to call into
question the democratic legitimacy of legalized abortion. A similar position
has been articulated by James Dobson, founder of the conservative
Christian group, Focus on the Family. Although Focus on the Family
oﬃcially condemns violence against abortion doctors, the organization
5
I hasten to add that this does not imply that neo-Nazi organizations operating in the United States
today do not pose serious threats.
6
Operation Rescue, “American Holocaust: Inside an Abortion Death Camp,” www.operationrescue.
org/?p=55 (accessed July 29, 2005).
20 Democracy and moral conﬂict
nonetheless supports other acts of disobedience, such as physically blocking
entrances to abortion clinics. Explaining this posture, Dobson writes:
To those Christians who feel prohibited from stepping across a property line to
save a baby, I would ask … What would you have done as a citizen of Germany in
World War II? The Nazi extermination camps were legal. Would you have broken
your country’s unjust laws in order to protect millions of people marked for death?7
Again, Dobson’s envisioned analogy between abortion and the Holocaust is
telling. His explicit claim is that standing abortion laws are illegitimate and,
therefore, may be – perhaps, morally speaking, must be – disobeyed. This, of
course, leaves one to wonder about the grounds upon which Dobson
condemns violence against abortion doctors, but we will not investigate
this here. Consider instead the further implications of Dobson’s analogy.
If, indeed, the system of legal abortion in the United States is analogous to
the system of legal extermination in Nazi Germany, then those in the
United States who seek to maintain or expand protections of a woman’s
right to choose to terminate her pregnancy are analogous to bona ﬁde Nazis.
Hence, on Dobson’s view, individuals who are pro-choice are not fellow
democratic citizens, but rather agents of an unjust, illegitimate, and
anti-democratic political order. Accordingly, for members of Operation
Rescue and Focus on the Family, pro-choice advocates are not proper
democrats and thus, at the very least, do not deserve toleration.
The critic will next claim that my examples prove his point. He will say
that organizations like Operation Rescue and Focus on the Family are fringe
groups and thus are not representative of mainstream political sentiment in
the United States. That I have drawn my examples from these organizations
conﬁrms that, in general, citizens are not as deeply divided as the paradox of
democratic justiﬁcation requires.
But the critic now seems to have misunderstood the nature and intended
force of the paradox. The issue that I am confronting is not simply a
sociological one regarding the number of citizens who take themselves to
be deeply divided from other citizens regarding fundamental moral com-
mitments.8
The issue is rather that of justifying the democratic requirement
that citizens must tolerate – or at least not judge intolerable – a wide range of
moral and religious doctrines and be willing to accept democratic compromises
in cases where their fundamental values conﬂict with standing
7
“Why does Focus support the rescue movement?,” family-topics.custhelp.com/cgi-bin/family_topics.
cfg/php/enduser/std_adp.php?p_faqid=1240 (accessed July 29, 2005).
8
I am inclined to think that the sociological data speak in favor of my view, but will not engage the
issue here.
The problem of deep politics 21
democratic outcomes. So, I can grant the critic’s sociological point that,
despite extremist rhetoric and other exaggerated portrayals on oﬀer by fringe
organizations, contemporary citizens are generally willing to accept democratic
compromises. But the question that is central to our concern is this:
why should they? What reasons can be oﬀered for upholding democratic
commitments at the expense of other, perhaps more important, values?
That a great many citizens of contemporary democracies accept the necessity
of political compromise as a matter of course and, therefore, do not
demand such justiﬁcations is entirely beside the point. Whether demanded
or not, democratic politics stands in need of justiﬁcation.
Let us turn now to a second criticism that aims to dismiss the paradox of
democratic justiﬁcation. The second critic might pick up where the ﬁrst
critic left oﬀ and argue that there is an easy and obvious resolution to the
paradox of democratic justiﬁcation. Citizens have reason to uphold democratic
commitments, even in cases in which those commitments clash with
their more basic moral or religious doctrines, for the simple reason that the
cost of defection is too high. Opponents of abortion could engage in acts of
violence to promote the pro-life cause, and, from their point of view would
be morally justiﬁed in doing so, but, alas, this course of action would be
imprudent because the democratic state has the power to prosecute and
severely punish those who break its laws. Thus, citizens have an obvious
reason to uphold democratic commitments: if they do not uphold such
commitments, they will be punished. Accordingly, the critic concludes, the
paradox of democratic justiﬁcation is resolved by power.
This criticism has the familiar, conﬁdent air of a Hobbesian political
realism. However, it raises many problems, not all of which can be canvassed
here. The most obvious diﬃculty with the criticism is that it requires
us to understand political legitimacy as simple stability. Of course, stability
is a desideratum of any political regime; however, the critic has construed
stability simply as the power to force compliance. The diﬃculty with this
view lies in the fact that there is a clear and intuitive diﬀerence between
exercises of power that are legitimate and those that are merely eﬀective.
Likewise, one can easily cite historical examples about which it would be
correct to say that power was successfully but unjustly wielded. Doubtless
the critic will want to deny these distinctions. Yet if one follows the
critic in relinquishing the distinction between legitimate and illegitimate
(yet eﬀective) power, one also relinquishes the normative ground which
enables us to criticize power. Moreover, one relinquishes the normative
ground which enables us to judge that a particular act of government – the
desegregation of the public schools, for example – constitutes moral progress
22 Democracy and moral conﬂict
in the direction of justice. Hence the imagined response proposes to
resolve the paradox of democratic justiﬁcation by rejecting the idea of
political justiﬁcation altogether. This hardly seems an acceptable democratic
response.
There is a further diﬃculty facing the political realist response to the
paradox. Borrowing some nomenclature from Rawls which I shall appeal
to more systematically in later chapters, one may say that the power-based
resolution to the paradox makes political justiﬁcation a matter of striking
a mutually acceptable modus vivendi, or truce, among opposed parties
(2005: 145). Where a political order is accepted as a modus vivendi, each
contending party sees it as a less than optimal compromise to be tolerated
only for as long as the relative balance of power among the contending
parties precludes any one party from dominating the others. But as power
relations are unstable and prone to ﬂuctuation, so too is a social order whose
justiﬁcation lies exclusively in power. Under such conditions, it is reasonable
to expect the contending parties to not acquiesce in the democratic
status quo, but to attempt instead to manipulate the existing balance of
power. Again, this seems an unpromising response to the paradox.
Thus, it seems that there is a strong prima facie reason to think that
paradox of democratic justiﬁcation stands, and lies, at the root of some of
our most divisive political controversies. Given democracy’s own conception
of political legitimacy, a response to the paradox is called for. We turn,
then, to an examination of a standard democratic resolution.
ii a standard solution
Democracy as procedure
On a standard account, the paradox of democratic justiﬁcation is resolved
by an appeal to the idea that democracy is essentially a procedure or process.
The procedural account begins with an insight, well-captured by Rawls in a
paraphrase of Isaiah Berlin, that there can be no social world without loss
(2005: 197). That is, the procedural response begins with the claim that
compromise is a condition of living with others in a political and social
order. The next step is to draw the inference that since no one can get
everything he wants by way of political decisions and outcomes, choice
among political systems is essentially a choice concerning the terms under
which compromises will be struck. Under some regimes, political decision is
entirely in the hands of some sub-section of the population. In a monarchy,
for instance, political rule rests entirely with the monarch. Accordingly, in a
The problem of deep politics 23
monarchy, compromise is a one-way street: the monarch gets his way,
and the subjects compromise their way into compliance. Similarly, in an
oligarchic regime, the few hold political power, and the many must compromise.
In a theocracy, the priesthood gets its way, and the laypersons
compromise. In a plutocracy, the rich make the rules and the poor compromise.
And so on.
In a democracy, by contrast, political power is shared equally by the
entire citizenry. Political decisions are made by means of a fair aggregative
voting procedure in which each citizen has an equal voice and the majority
rules (within certain constraints, as discussed below). Of course, contemporary
democracy employs a variety of systems of representation, so democratic
rule is not direct; nonetheless, the core idea is that, under democratic
rule, the burden of political compromise is shared across the entire population.
This means that no one can expect to get his way all of the time. The
consolation is that since the democratic procedure fairly aggregates citizens’
interests, as registered by votes, democracy can ensure that most people will
get mostly what they want most of the time, or at least more often than they
would under any of the viable alternate regimes.
This feature of democracy is supplemented by the range of constraints
that are placed on majority rule. In other words, in a democracy, majority
rule is constrained by a set of individual rights, speciﬁed in a constitution,
that protect individuals from not only the unjust interference of the government
and foreign governments, but also from the interference of the
majority. In a democracy, there are certain things that a majority, no matter
how numerous, cannot get (or at least cannot get easily). Accordingly, there
are limits to the kind of compromises individuals are expected to endure at
the hands of a democratic majority. The most extreme losses – losses of life,
liberty, and property, for example – are precluded, except in certain special
cases, as speciﬁed by law.
On the procedural account, then, the justiﬁcation of any particular
political decision lies in the fact that it was produced by a fair procedure
that not only gives to all citizens an equal voice in decision-making, and
protects individuals from unjust interference even by a democratic majority,
but also guarantees to each citizen who ﬁnds himself in the minority on a
speciﬁc issue the continuing opportunity to convince those holding the
majority opinion that they are in error and should revise their view. So, even
though there can be no social world without loss, in a democracy, no
particular losses are by necessity permanent; decisions which seem to some
citizen in the minority to be egregious and unacceptable errors can be, at
least in principle, retrieved and corrected.
24 Democracy and moral conﬂict
In short, the procedural view holds that the justiﬁcation for democracy
lies in the fact that it oﬀers to citizens a process for making political decisions
and eﬀecting political change relatively eﬃciently and without violence. To
employ a trope common among proceduralists, democracy replaces bullets
with ballots. Hence, although democracy cannot guarantee to its citizens
that they will always agree with its outcomes, it can guarantee a degree of
peace, fairness, and stability that is not available under alternate regimes.
And peace, fairness, and stability are crucial if one wants to change a regime
non-violently from within. The proceduralist recognizes that democracy is
not perfect, but will maintain, with Winston Churchill, that, even in light
of its failings, democracy is better than its real-world competitors; even if it
is not the best simpliciter, it is the best we can get.
Presuppositions of proceduralism
I shall not rehearse the most common criticisms that have been raised
against the procedural view of democracy. Roughly, these criticisms attack
democracy’s aggregative mechanism, purporting to show that no achievable
voting procedure can deliver results that can plausibly be held to represent
the will of the majority; some go further to argue that the very concept of the
will of the majority is incoherent. These are formidable criticisms, and they
have given rise to a vast technical literature.9
But they are not germane to
our present concerns. I instead want to examine the question of whether or
not the procedural response to the paradox of democratic justiﬁcation is
viable. This requires further elaboration of the procedural view.
Jane Mansbridge provides an accurate characterization of the workings
of the procedural view in her description of what she calls “adversary
democracy”:
Voters pursue their individual interests by making demands on the political system
in proportion to the intensity of their feelings. Politicians, also pursuing their own
interests, adopt policies that buy them votes, thus ensuring accountability. In order
to stay in oﬃce, politicians act like entrepreneurs and brokers, looking for formulas
that satisfy as many, and alienate as few, interests as possible. From the interchange
between self-interested votes and self-interested brokers emerge decisions that
come as close as possible to a balanced aggregation of individual interests. (1983: 17)
We need not follow Mansbridge, and many other communitarians
and participatory democrats, in lamenting the adversarial aspects of the
9
For this kind of criticism, see especially Riker 1988. For a defense of democracy against this kind of
critique, see Mackie 2003. Gaus 2003a: ch. 6, nicely surveys the issues.
The problem of deep politics 25
procedural view.10
After all, the commitment to moral pluralism entails that
conﬂict among citizens is inevitable. Moreover, it should also be noted that
even serious conﬂict need not involve incivility or hostility. For similar
reasons, the central role of self-interest in the procedural system need not
concern us here, for self-interest need not mean selﬁshness, or interest that is
strictly self-regarding rather than altruistic or socially responsible. What is of
interest is that the procedural view claims to have no deep moral aspirations
or goals other than that of producing decisions in a way that treats all
citizens’ interests equally. On the procedural view, a democratic system is
not in the business of evaluating the relative merits of citizens’ interests,
preferences, or opinions, nor does it aim to produce outcomes that represent
the “common good.” Rather, on the procedural view, democracy is essentially
non-normative and “thin”; it aims only to arrive at decisions that
accurately represent the aggregate of citizens’ inputs. In this way, it aspires
simply to give the people what they want.
The thin character of the procedural view is often considered to be its
primary strength. Recall that the paradox of democratic justiﬁcation arises
precisely because citizens do not share a common set of normative commitments.
When citizens are divided at the level of their conceptions of the
good, an account of democracy that presupposes, or is explicitly aimed at
realizing, some particular normative vision will fail to win widespread
consent. By construing democracy non-normatively, the procedural view
avoids this diﬃculty. Ian Shapiro formulates this aspect of the procedural
view well:
Rather than think of democracy as a mechanism for institutionalizing the general
will, we should recognize its claim to our allegiance as the best available system for
managing power relations among people who disagree about the nature of the
common good, among many other things, but who nonetheless are bound to live
together. (2003: 146)
As he summarizes his point, Shapiro contends that the procedural view
of democracy “embodies what those with an interest in avoiding domination
share” (2003: 146). Since it is safe to assume that citizens who are deeply
divided over basic moral and religious commitments share a common
interest in avoiding being dominated by their moral opponents – those
who are ex hypothesi committed to an inferior, false, or intolerable moral
view – the procedural view seems a neat and clean resolution of the paradox.
10
For this kind of criticism, see Etzioni 2001 and Barber 2004.
26 Democracy and moral conﬂict
Yet there are serious diﬃculties with the procedural view understood as a
response to the paradox of democratic justiﬁcation. To be sure, the core of
the proceduralist justiﬁcation for democracy seems sound: when no one
can get everything he wants, it makes sense for everyone to settle for the best
arrangement he can get. But this justiﬁcation presupposes that citizens are
willing to conceive of their deepest moral commitments in a rather particular,
perhaps peculiar, way. To be speciﬁc, the procedural view presupposes
that we are able to regard our deepest moral and religious commitments
as wants, preferences, and interests, entities or objects that can be individuated,
quantiﬁed, and aggregated; moreover, it presumes that citizens are willing
to view their commitments as fungible items that can be exchanged and
bargained with. In this way, the procedural view emerges as a quasi-economic
model, according to which “democracy is a kind of market” (Posner 2003:
166). This image is explicitly endorsed by Joseph Schumpeter in his description
of the “democratic method” as “that institutional arrangement for
arriving at political decisions in which individuals acquire the power to decide
by means of a competitive struggle for the people’s vote” (1942: 269).
The objection I want to raise against this aspect of the procedural view
will not be that the market is an inadequate model for understanding the
whole of democratic society.11
Again, the target of the present analysis is not
the procedural model of democracy as such, but rather the procedural
model understood as a response to the paradox of democratic justiﬁcation.
The question, then, is whether the procedural view can provide a justiﬁcation
for democracy to citizens whose fundamental values lose out in the
democratic process. The strength of the procedural view as a response to the
paradox depends upon the aptness of the presupposition that citizens are
able to treat their deepest moral and religious commitments as the kind of
entities that can be entered into a market-like system of exchange, negotiation,
and aggregation.
Is this presupposition justiﬁed? I think not. There is good reason to think
that citizens are unable to regard their commitments in this way. Consider
religious commitment. Many religious believers do not, indeed, cannot,
regard their deepest value commitments as bargaining chips with which to
attempt to strike the best political deal they can in light of their interests.
Indeed, according to many religious believers, their commitments are not
quite interests at all; they are instead more like categorical commands or
inviolable directives from God or from some other source of ultimate
moral authority. Accordingly, many religious believers see their most
11
For this kind of criticism, see Sandel 1998b.
The problem of deep politics 27
fundamental commitments as non-negotiable, non-quantiﬁable, and not
fungible. Moreover, they are inclined to regard as unacceptable a procedure
that simply aggregates citizens’ interests, regardless of their normative
merits. That is to say, many religious believers are inclined to see the
proceduralist’s thin vision of democratic politics as itself morally bankrupt:
to treat all interests as equal is to treat good and evil, right and wrong, and
virtue and vice as equal, which is morally corrupt as such and, therefore,
unacceptable.
Here the proceduralist will rehearse the Berlinian consideration that
there can be no social world without loss, and repeat Churchill’s insight
that democracy, warts and all, is the best we can get. But this response
presumes that religiously committed citizens are willing to concede that
engaging in real-world politics is more important than standing up for what
is right, or for what God commands, come what may. Indeed, religiously
committed citizens may concede the proceduralist’s point that real-world
politics necessarily involve dirty hands, but they may conclude from this
that one ought to reject the terms and conditions of real-world politics, and
instead stand for the Truth, unﬂinchingly and without apology, regardless
of the real-world consequences. Indeed, the holy books of our most common
religious traditions are ﬁlled with heroic portrayals of people who
engage precisely in this kind of principled resistance to the norms of the real
world. In many cases otherworldliness is precisely the point.
In response, the proceduralist may borrow from the realist strategy
discussed earlier, and argue that the religious believer has misunderstood
the procedural view. Adopting the procedural view does not require citizens
to morally endorse the values and compromises embedded in the democratic
process. That is, proceduralism does not require citizens to abandon the
moral truth as they see it in favor of some version of moral neutrality or
moral thinness. Indeed, proceduralism is consistent with the view that
democracy is, as Alasdair MacIntyre has said, “civil war carried on by
other means” (1984: 254). That is, the proceduralist can maintain that his
view of democracy is compatible with the religious believer’s fervor to stand
up intrepidly for the Truth at all costs. According to the proceduralist,
democracy provides the mechanism by which one can ﬁght for the Truth
without risking one’s life.
But once the proceduralist has conceded that the political world is in the
midst of a kind of civil war, the religiously committed citizen has an obvious
rejoinder: what warrants the presumption that the democratic process, as
understood by the proceduralist, is a suitable alternative framework for civil
war? One wins a war by overcoming and destroying one’s enemy; thus, in a
28 Democracy and moral conﬂict
war, power matters most. Why, then, should parties to a war over ultimate
values agree to ﬁght within a framework that aims to treat opposing points
of view equally, and which, consequently, makes ﬁnal victory unattainable?
The point is that, according to the religiously committed citizen, there are
many things that are at issue in contemporary politics, and among these is
the appropriateness of the procedural model of democracy itself. And so the
question of justiﬁcation re-emerges.
The proceduralist will reply that the democratic process oﬀers a peaceful
alternative to conventional war; democracy is, again, war by other means. But
this is to presuppose the principle that we should seek peace above all else. It
is thus open to the religiously committed citizen to ask why peace should
trump other important values, such as truth, or purity, or obedience to
God’s law. If, as the proceduralist concedes, democracy is indeed civil war
by other means, why then should we not pursue civil war by the usual
means? Why not engage in real civil war? The proceduralist will respond
that civil war by the usual means involves great risks to one’s life. From the
point of view of the religiously committed citizen, this response reveals
that the proceduralist model of democracy expects citizens to subordinate
all values to that of self-preservation. Yet, according to many religiously
committed citizens, nothing justiﬁably trumps obedience to God, not
peace, not fairness, not civility, and not even self-preservation.12
And so it
will seem to the religiously committed citizen that the procedural model of
democracy cannot make good on its promise of a fair process that treats all
as equals, because it requires citizens to view their deepest commitments as
mere “interests” or “preferences” that can be entered into a system of quid
pro quo political bargaining. However, many citizens cannot adopt such an
understanding of their deepest commitments; they hold that to do so would
be to violate, abandon, cheapen, deﬁle, or denigrate that which they take
to be of ultimate value. And why should they consent to a political system
that requires this? For, according to the religious believer, political legitimacy
is itself contingent upon a society instantiating the truth or God’s
will.13
Insofar as proceduralism precludes this, democracy as understood on
the procedural model is illegitimate.
12
It should be added that, for some religious believers, obedience to God, even at the expense of – or
perhaps especially at the expense of – this-worldly well-being, is necessary for true, that is, otherworldly,
self-preservation.
13
This is the force of much of the religious political rhetoric in currency in the United States, such as the
claim that the United States was founded on “Christian principles” or is a “Christian nation.” See, for
example, P. Buchanan 2001: 180ﬀ. Note also Newt Gingrich, “We must reestablish that our rights
come from our Creator, and than an America that has driven God out of the public arena is an
America on the way to decay and defeat” (2005: xxi).
The problem of deep politics 29
Thus, the procedural account has not supplied the needed justiﬁcation
of democracy; it has at best merely relocated the question of justiﬁcation.
Of course, this leaves entirely open the question of what the religiously
committed citizen may do in response to the failure of justiﬁcation. That the
state has failed to meet its justiﬁcatory burden does not alone entail that
rebellion is justiﬁed; the failure of justiﬁcation merely raises the question of
what should be done. This is a matter I shall take up in the ﬁnal section of
this chapter.
I have deliberately cast the preceding argument in the form of a dialectical
exchange between a proceduralist and a certain strip of ardent religious
believer. Before moving on, it should be emphasized that this was strictly a
simplifying device. The presuppositions of proceduralism are easily highlighted
when brought into contrast with the commitments of a certain
kind of religious belief. Although certain types of religious believer perhaps
provide the most obvious foil for the procedural view, similar exchanges
between proceduralists and diﬀerently committed interlocutors – including
proponents of various secular moral doctrines – are easy to imagine.
For example, return to one of the four glosses above. Consider the controversy
over teaching evolution in public schools. Imagine how a biologist is
likely to react to a recent decision by the Kansas Board of Education to
eliminate the requirement that evolution be taught in biology courses in
the public schools. Of course, that the decision was reached by a fair and
democratic process will not convince the biologist that the decision is
correct. But, more importantly, the biologist is likely to regard the decision
as illegitimate and intolerable. It bears repeating that the judgment that the
democratic result is illegitimate leaves open the question of what should be
done in response. The point that concerns us here is that the biologist is likely
to insist that something must be done to correct the intolerable result; that is,
from the biologist’s point of view, teaching evolution in a biology curriculum
is non-negotiable, and hence the Kansas result simply cannot stand, despite the
fact that it was produced by a properly democratic procedure.
A proceduralist might attempt to reconcile the biologist to the decision
by pointing out that since the Board’s decision does not outlaw the teaching
of evolution, but only abolishes the requirement that evolution be taught,
the result coerces no one and furthermore implies no evaluative judgment
whatsoever concerning what the biologist takes to be most valuable with
respect to science education. The proceduralist may continue that, as it
merely gives individual school districts the freedom to choose what material
is covered in biology classes, it does not require anyone to endorse an antievolution
view, or any particular view on the matter. The biologist will
30 Democracy and moral conﬂict
almost certainly see this proceduralist reply as entirely beside the point.
According to the biologist, what counts as biology, and thus what counts as
a proper biology curriculum, is not a matter of choice, and it surely is not a
matter that can be properly decided by means of a popular vote. That is,
according to the biologist, the content of a biology curriculum is not the
kind of thing that should be subjected to the democratic decision process;
to decide the curriculum by popular vote is to treat science and myth, truth
and nonsense, and knowledge and ignorance as equals. It is, therefore, to
misunderstand profoundly the nature of the values and purposes of biology
education. According to the biologist, there could be no proper biology
education without an evolution requirement; in fact, the biologist may go
further and argue that insofar as proper science education is a prerequisite
for intelligent and eﬀective democratic citizenship, the decision to eliminate
the evolution requirement from public education is a blow against democratic
legitimacy itself. So why should the biologist accept a democratically
produced decision that renders instruction in the theory of evolution
optional in the biology curriculum of the public schools?
Notice how this dialectic closely resembles the exchange considered
earlier between the proceduralist and the religious believer. Similar interactions
can be provided for the other cases glossed above. To repeat, there
are important diﬀerences among the cases, but all share the following logical
structure: each is a case in which the democratic process has produced
a result that violates some value that one party to the dispute takes to be
the sine qua non of democratic legitimacy. In such cases, the fact that the
democratic process had been applied properly is not enough to settle the
question of justiﬁcation. And so proceduralism does not resolve the paradox
of democratic justiﬁcation.
What’s the matter with Kansas?
I close this section of the chapter by raising a further critical point against
the procedural view. The procedural view not only fails to resolve the
paradox of democratic justiﬁcation, it renders inexplicable the prevalence
of the kind of disputes we have been discussing. The most obvious case in
point is the issue of gay marriage. On the procedural view, public opposition
to gay marriage should be more or less restricted to a few religious
fundamentalists. However, it in fact strikes a large portion of the population
of the United States as a crucial political issue. Why should this be? Recall
that on the proceduralist analysis democratic votes are expressions of
citizens’ interests. It follows, then, that the proceduralist must conclude
The problem of deep politics 31
that large numbers of citizens take it to be in their interest to restrict
marriage to heterosexual couples. Yet it is diﬃcult to imagine how opposing
gay marriage serves anybody’s interests. To be sure, some claim that
extending marriage to homosexuals will cheapen, trivialize, or make less
secure heterosexual marriages. But as an empirical matter this seems highly
implausible. Others claim that allowing homosexuals to marry will dissolve
traditional family bonds. But, again, this seems highly implausible.
Moreover, it should be noted that if people were so strongly motivated to
oppose policies which could be seen to empirically cheapen heterosexual
marriage or imperil family bonds, we should ﬁnd strong opposition to
no-fault divorce laws, and strong support for other policies that would
prevent marriage among persons not suﬃciently mature or serious; but
we do not. The fact is that there is no plausible story to tell to the eﬀect that
gay marriage harms others, or harms society, or obstructs the interests of
heterosexual couples. Why all the fuss, then? On the procedural view, it is a
mystery why anyone should care about gay marriage, other than gay couples
who are denied the privileges of marriage. And yet large numbers of people
do care about gay marriage enough not only to oppose it, but to vote in favor
of amendments to their state constitutions which deﬁne marriage in strictly
heterosexual terms. Many believe that the US Constitution should be
amended to include a deﬁnition of marriage.
The proceduralist must conclude from this that large numbers of people
are deeply mistaken about their own interests. And this in turn calls the
proceduralist to develop a theory to account for the pervasiveness of the
mistake. In order to address existing and prevalent political phenomena,
proceduralism requires a theory of the manipulation of popular opinion.
That is, the only response the proceduralist has to the prevalence of issues
that defy procedural analysis is to declare that mainstream America is
profoundly deluded. Consequently, the procedural view violates its aspiration
to be a non-normative theory of democracy. As our imagined religious
believer suspected, the procedural view is committed to a series of claims
regarding the bases on which citizens ought to cast their votes, the way in
which citizens ought to understand their moral commitments, and how
they ought to rank their moral and material concerns. In short, the procedural
response to the paradox of democratic justiﬁcation denies the moral
pluralism that we earlier argued is the natural outcome of the liberties of
conscience that democracy protects.
To see how this works, consider Thomas Frank’s popular 2004 book,
What’s The Matter With Kansas? According to Frank, the fact that conservatives
have succeeded in recent elections proves that people are “getting
32 Democracy and moral conﬂict
their fundamental interests wrong” (2004: 1) and, moreover, that individuals
are suﬀering from an “illusion” (2004: 7), a “distortion” that leads good
people “astray” (2004: 242). Frank’s substantive position is that conservatives
have succeeded because they have mastered the politics of false
advertising. Although they continue to govern on the basis of what Frank
sees as the old-fashioned Republican commitments to big business and the
elimination of social welfare, the conservatives have managed to focus the
attention of the working class on a set of cultural issues, such as abortion,
gay marriage, “family values,” blasphemous art, the arrogance of “Hollywood
liberals,” the radicalism of tenured university professors, and so on. Hence,
according to Frank, the conservatives campaign on the basis of one platform,
but govern on the basis of another. On Frank’s analysis, “Values may ‘matter
most’ to voters, but they always take a backseat to the needs of money once
the elections are won” (2004: 6). And so Frank contends that average voters
are duped into voting against what he insists are their most fundamental
concerns, their true interests. He describes this phenomenon like this:
Vote to stop abortion; receive a rollback in capital gains taxes. Vote to make our
country strong again; receive decentralization. Vote to screw those politically correct
college professors; receive electricity deregulation. Vote to get government oﬀ our
backs; receive conglomeration and monopoly everywhere from media to meatpacking.
Vote to stand tall against terrorists; receive Social Security privatization.
Vote to strike a blow against elitism; receive a social order in which wealth is more
concentrated than ever before in our lifetimes, in which workers have been stripped
of power and CEOs are rewarded in a manner beyond imagining. (2004: 7)
(original emphasis)
The continuing success of this blatant bait and switch on the part of the
Republicans perplexes Frank to the point of exasperation. Endorsing proceduralism,
Frank writes that “most of us think of politics as a Machiavellian
drama in which actors make alliances and take practical steps to advance their
material interests”; however, in a revealing contrast, he acknowledges that
contemporary politics rejects this framework, and is instead “a crusade in
which one’s material interests are suspended in favor of vague cultural
grievances that are all-important and yet incapable of ever being assuaged”
(2004, 121).14
Elsewhere, he faults this “crusade” model for its “systematic
erasure of the economic” (2004: 127).
14
If it is true, as Frank claims, that “most of us” see politics in procedural – he says Machiavellian –
terms, then it is diﬃcult to explain why the crusade model he laments pervades our politics. One
wonders who Frank takes himself to be addressing as “us.”
The problem of deep politics 33
All of this simply begs the question. Frank’s analysis presumes that an
individual’s “fundamental interests” are his economic interests; moreover,
Frank insists that the extent to which any individual holds that his own
economic well-being may be trumped by other objectives is the extent
to which that individual is deluded, or the victim of some conservative
con job. But surely other explanations are available. Never once does Frank
consider the possibility that an increasing number of individuals in the
United States are politically moved by commitments that cannot be
reduced to, or explained in terms of, “material interests,” and that consequently
these individuals feel called to act politically for the sake of
respecting or realizing those commitments, even at the expense of their
own economic well-being. More importantly, Frank never considers the
possibility that the conservative voters in Kansas are fully aware of the bait
and switch perpetrated by the Republican candidates they elect. It may be
that the conservative voters in Kansas see all politics as a dishonest and
corrupt con game, and so they vote for the candidates who at least give lip
service to the correct value commitments, regardless of the actual material
consequences of conservative victories. Or, alternatively, it may be the case
that citizens who, for example, oppose abortion on religious grounds take
themselves to be morally obligated to vote for pro-life candidates, regardless
of the likely negative impact on their pocketbooks, their public schools,
their small businesses, and their neighborhoods.
Frank repeatedly discusses Republican victories in terms of a “backlash”
(2004: passim), an irrational and unreasoned knee-jerk reaction.
This reveals that he takes the conservative trend to indicate that conservative
voters – remember, roughly half of the American electorate! –
are either the selﬁsh beneﬁciaries of the Republicans’ big business
economic agenda that destroys middle-class America, or the benighted
and foolish victims of “conservatism’s populist myth” (2004: 239).
According to Frank, then, all conservative voters are either despicable or
irrational, and no respectable case can be made for conservatism. This is to
reject the kind of pluralism of minimally plausible moral positions that
democracy entails.
It should be emphasized that it may be the case that the conservative
agenda – whatever it may be – is deeply ﬂawed and morally corrupt. Frank
does not argue this; he merely asserts that it is. But this kind of assessment
is very diﬀerent from the one that Frank oﬀers, which encourages us to view
more than half of our fellow democratic citizens as knaves or fools. Yet
Frank’s claim that half of his fellow citizens – conveniently, the half with
whom he disagrees – are either too corrupt or too stupid for democratic
34 Democracy and moral conﬂict
citizenship smacks of gross oversimpliﬁcation. In any case, it is a strike
against any proposed analysis of democratic politics that it requires us to
characterize prevalent political phenomena in this way. A mode of political
analysis that entails that millions of people who are otherwise reasonable,
intelligent, and sincere are the victims of a silly and obvious deception that
seriously undermines their well-being might, after all, be correct; however,
given the extravagant implications of the procedural view, one should
consider exploring alternate hypotheses.
iii deep politics
Let us pause for a moment to take stock. Thus far I have argued that
contemporary democracy confronts a paradox in that the very freedoms
secured by democratic politics tend to undermine the conditions under
which it would be possible for democracy to meet its own conception of
legitimacy. To be speciﬁc, the liberties of conscience secured by a democratic
constitution lead to a pluralism of moral commitments among
the democratic citizenry. Yet, where there is a pluralism of moral commitments,
there will be a plurality of moral conﬂicts, and some of these
conﬂicts will engage the values and commitments that citizens take to
be fundamental and hence non-negotiable. I then argued that the standard
proceduralist response to the paradox cannot succeed because it presumes
a particular view about the nature of citizens’ moral commitments; it
presumes that citizens are willing and able to view their deepest commitments
as bargaining chips to be entered into an aggregative decision
mechanism.
But there is good reason to think that citizens cannot adopt such a
self-understanding without transforming and thus violating the values
they hold most dear; for, according to many citizens, their moral commitments
– along with their particular understandings of justice, liberty,
dignity, equality, and the right and the good – are prior to their democratic
commitments in the sense that the legitimacy of democracy is thought to
follow from their moral commitments. Hence, in cases where democratic
politics conﬂicts with some value that is held to be more basic, one cannot
justify democracy by simply appealing to the features of the democratic
process itself, because, in such cases, the legitimacy of the democratic
process is precisely what the conﬂict calls into question. But in such cases,
some decision or other must be made; something must be done and this
means that some values will prevail over others. What can be said to those
whose fundamental values lose out in the democratic process? Accordingly,
The problem of deep politics 35
proceduralism merely relocates, and does not respond to, much less resolve,
the paradox of democratic justiﬁcation.
From paradox to crisis
It is, of course, possible to live with paradox. For many citizens, the
procedural account of democracy serves as an adequate validation of democratic
politics, and for other citizens, the question of democratic legitimacy
never even occurs to them. Accordingly, the paradox of democratic justiﬁcation
need not result in any practical political crisis. However, as I have
suggested above, many of our most pressing political controversies share a
structure that indicates that citizens, and not just political theorists, are
confronting the paradox of democratic justiﬁcation. To cite the obvious
example which we have already discussed, pro-life citizens see legal abortion
as the state-sponsored murder of innocent citizens, and they hold that a
government that does not protect the lives of its innocent citizens is ipso
facto illegitimate; pro-choice citizens see legalized abortion as necessary
for the liberty and equality of women, and they hold that a government
that fails to secure these goods for all citizens thereby loses its claim to
legitimacy. Obviously, there could be no political rapprochement of the sort
envisioned by the procedural model between conﬂicting parties who each
see their position as the sine qua non of political legitimacy. There could be
no principled compromise between these two parties, for each sees the values
at stake as identifying non-negotiable requirements for political legitimacy
as such. The abortion controversy is not unique in this respect; the prevalence
of similarly structured contemporary controversies indicates that
citizens are increasingly turning to their deepest moral commitments
for guidance and instruction in political aﬀairs. As these commitments
tend to identify sources of ultimate authority and fundamental value, they
cannot be bargained with and so do not ﬁt into the aggregative model
oﬀered by the procedural view.
What this means is that present political controversies of the sort we
have been discussing suggest that the paradox of democratic legitimacy is
generating a legitimacy crisis in modern democracies. Citizens are questioning
why they should accept the democratic status quo at the expense of
their fundamental values. Hence, democracy is losing its grip on citizens
who feel increasingly that the current state of politics is morally intolerable.
We confront a democratic citizenry that does not accept the morally
thin market assumptions of the procedural model; we confront a citizenry
that increasingly believes that democratic politics must conform to
36 Democracy and moral conﬂict
their deepest value commitments or else lose its claim to legitimacy. We
confront what I shall call a deep politics.
Deep politics as a problem
The problem posed for democracy by deep politics should be clear enough.
When citizens hold opposing moral and religious doctrines, but insist
that democracy must instantiate their deepest commitments or else lose
its claim to legitimacy, someone must lose out. Every democratic decision
concerning a controversial issue will generate discontent in some sector
of the citizenry. In certain cases, this discontent will rise to the level of a
denial of legitimacy. As I mentioned above, the judgment that a given
democratic outcome is illegitimate and, therefore, cannot stand leaves open
the question of what democratic citizens are justiﬁed in doing in response.
The options run the gamut from the obviously anti-democratic and violent
to various acts of protest and petition that lie clearly within the framework
of democratic politics. What reason can be given to those whose fundamental
values lose in a democratic decision to pursue the democratic means
of response and not the anti-democratic ones?
To help clarify matters, let us consider an admittedly overused example.
For many citizens, the overturn of Roe v. Wade would represent a serious
lapse in democracy’s legitimacy, and would undoubtedly incite a variety of
responses. Let us consider the main lines of response that are available:
(1) Relocation. Relocate to a country in which the desired rights and policies
are in place.
(2) Rebellion. Engage in acts of uncivil disobedience, including violence,
threats, riots, destruction of property, unlawful protest, terrorism, and
so on, and resist legal punishment for crimes.
(3) Civil disobedience. Resist and engage in protest within circumscribed
moral constraints, but publicly and openly disobey the law, and willingly
accept legal punishment for crimes.
(4) Petition. Obey the law, but engage in all available legal measures to
eﬀect a change in the law, including voting, campaigning, lawful
protest, lobbying, consciousness-raising, coalition-building, public
criticism, debate, activism, and so on.
I begin with a few observations. I trust that it is clear that options
(3) and (4) represent democratic responses, whereas (1) and (2) do not. Of
the non-democratic options, (1) is typically morally superior to (2), though
it should be noted that relocation is not open to all citizens, and under
certain conditions may not be open to any. Furthermore, it should be noted
The problem of deep politics 37
that the relocation option raises additional moral diﬃculties concerning the
conditions under which it would be immoral for a citizen of one country to
relocate to another.15
It also bears mention that there may be some cases in
which the only morally permissible option other than relocation is petition;
that is, there may be cases of legitimate complaint in which civil disobedience
is not morally available. We need not dwell on these and related
complications, because the moral rankings and subtleties of the options are
not to the present point. The question, then, is why our imagined prochoice
citizen should pursue the options of civil disobedience and petition
rather than relocation or rebellion. Put otherwise, why should a citizen who
sincerely believes that a given democratic outcome violates a basic and
necessary condition for political legitimacy nonetheless sustain his commitment
to democratic means to social change? Under such conditions, why
not pursue non-democratic means to one’s political ends?
Many citizens will give the Hobbesian answer: one should sustain
democratic commitments, even in cases of lapsed legitimacy, because the
cost of open rebellion is too high. But the Hobbesian answer oﬀers a reason
of the wrong kind. We are not concerned with the question of why it would
be prudent or instrumentally rational for citizens to not rebel, but with the
question of why citizens morally ought to pursue democratic means to their
political ends. For it is natural to think that the rebellion option is morally
justiﬁed only when no democratic option is available, such as when the
political order is democratic in name only, or not democratic at all. But
what justiﬁes this thought?
Exit, voice, and loyalty
At this point it will prove useful to introduce a framework developed by
Albert Hirschman in his classic book, Exit, Voice, and Loyalty (1970).
Roughly, Hirschman reasoned that when individuals are disappointed by
the performance of an institution that is supposed to serve them, they have
two options. First, they may exit, that is, they may withdraw from the
institution and take their business elsewhere, so to speak. To return to our
categories above, both relocation and rebellion are forms of exit. Second,
they may exercise voice, that is, they may sustain their relationship with the
institution in question, but voice their dissatisfactions with the expectation
15
Presumably there are conditions under which it would be morally wrong to desert one’s country.
Though I cannot argue the case here, I contend that citizens in the United States who relocated to a
foreign country because they did not endorse the results of the 2004 election acted immorally.
38 Democracy and moral conﬂict
that service will consequently improve. Petition and civil disobedience
are forms of democratic voice. Hirschman thought that voice is crucial to
the maintenance and improvement of institutions; hence, he held that
institutions need to discourage exit if possible. He further reasoned that
exit is discouraged, and voice encouraged, if institutions can nurture a sense
of loyalty among their members. Consequently, Hirschman argued that
loyalty was crucial to the success of institutions of almost every kind, from
ﬁrms, businesses, and clubs to governments and, indeed, entire societies.
A slightly modiﬁed version of Hirschman’s framework can be applied in
characterizing the problem posed to democracy by deep politics. It is surely
the case that the health of a democracy depends on its citizens’ willingness to
exercise voice. This is done most typically through political participation in
the form of votes and the other standard democratic channels represented
by the petition option we described above, though we must add that civil
disobedience is often a form of voice as well. Recall that the essence of voice
is the pursuit of democratic means to redress political grievances.
In democratic politics, exit comes in many forms, though we can identify
two broad categories of exit: obstructive and non-obstructive. Let us begin by
identifying a few obvious forms of non-obstructive exit, remembering, of
course, that these designations are neither exhaustive nor exclusive. One
kind of non-obstructive exit is the kind of political abstention exempliﬁed by
certain insular religious sects in the United States. Abstention consists in
full, or nearly full, withdrawal from democratic politics, including refraining
from voting and other forms of political participation.16
According to
the abstentious citizen, politics under any regime is to be, insofar as possible,
shunned as an unhealthy or morally inappropriate distraction. Closely
related to the abstentious citizen is the cynical citizen. Like the abstentious
citizen, the cynic non-obstructively declines to participate politically.
However, the cynic’s withdrawal from democracy is motivated by a general
frustration with democratic politics. That is, the cynic does not exit for the
purpose of more completely attending to a spiritual calling, but out of
exasperation. Finally, we can add to our list of non-obstructive mode of exit
the indiﬀerent citizen, whose exit from democratic politics is not the result
of some negative assessment of the political scene, but rather the result of a
simple lack of interest.
The foregoing forms of exit are non-obstructive in that none seeks to
dismantle or undermine the standing democratic regime. Those who
16
Withdrawal may also involve seeking exemptions from certain democratic laws, as in the case of the
Amish, who do not pay federal taxes.
The problem of deep politics 39
engage in non-obstructive exit simply want to be left out of the political
process.17
Accordingly, non-obstructive exit carries with it no alternative or
competing political program, and so does not involve any positive political
action on the part of those who exit. We may characterize non-obstructive
exit as exiting from not only democratic politics, but from politics as such.
Consider next two obstructive forms of exit: revolution and conspiracy.
Revolution is exempliﬁed most fully by domestic organizations that actively
seek to overthrow the existing political order, typically by overt means of
violence, terrorism, intimidation, and force. According to the revolutionary,
the standing democratic order must be not only shunned and resisted,
but abolished at almost any cost and as quickly as possible. Contrast the
revolutionary with the conspirator. Whereas the revolutionary seeks to
incite overt conﬂict in the present, the conspirator employs more covert
and subtle means, taking a long-view approach to social upheaval and often
working, at least initially, within the limits of established democratic law.
That is, like revolutionaries, conspirators plot the overthrow of the existing
democratic order, but, unlike revolutionaries, adopt a strategy according to
which the successful upheaval of society must begin from within the bounds
of democratic politics. Accordingly, conspirators, at least initially, exercise
the voice option. They lobby, campaign, rally, demonstrate, canvass, protest,
and petition; however, these activities are enacted with a view to
building a coalition of suﬃcient strength to eventually overthrow or fundamentally
transform the democratic order. For this reason, conspiratorial
activity is, in the short run, diﬃcult to distinguish from legitimate democratic
participation, but the long-run aspirations of the conspirator are in
essence no diﬀerent from those of the revolutionary.
It may be said, then, that revolution and conspiracy represent a mere
diﬀerence in means; they both aim to disrupt and eventually dismantle the
standing democratic order and replace it with another order. To be sure,
revolutionaries and conspirators frequently characterize their ambitions in
democratic terms; they claim to seek democracy “in a higher sense” or a
system in which people are “truly free.” But they nonetheless aspire to create
a politics that diﬀers fundamentally from the existing democratic order.
Hence, we may say that, unlike non-obstructive exit, obstructive forms of
exit carry with them decidedly political aspirations. Consequently, obstructive
exit represents a withdrawal not from politics as such, but from
democratic politics, at least as we know it.
17
I leave aside the complication that some non-obstructively exiting groups exit for the purpose of
maintaining a local form of governance in accordance with their own sectarian principles.
40 Democracy and moral conﬂict
With this rough sketch of a modiﬁed Hirschmanian framework in place,
the problem of deep politics can now be stated succinctly. As I noted above,
Hirschman thought that loyalty was the key to encouraging voice and
discouraging exit; however, in modern democracies, citizens are not
required to share common moral or religious loyalties. In fact, as was
mentioned earlier, it is thought by many that in modern democracies
widespread consensus over moral and religious essentials can be maintained
only by oppression, and thus should not be a desideratum, or even an ideal,
of any properly democratic order.18
In any case, the lack of agreement at the
level of fundamental moral commitments – what I earlier called moral
pluralism – seems to be a present and persistent feature of modern democracy.
Therefore, citizens not only do not share common loyalties, but in fact
maintain conﬂicting and opposed loyalties. And so the problem of deep
politics consists, then, in preserving the voice option among citizens who
are divided at the level of fundamental loyalties.
Our most pressing political controversies reveal that we are divided not
only at the level of policy; we are also morally divided at the level of our
fundamental commitments and deepest loyalties. Accordingly, there is
much more at stake in contemporary politics than policy and law; for
many citizens, present policy and legal issues call into question the very
legitimacy of democracy itself. Unless we can formulate a compelling reason
why citizens ought to pursue democratic means to their political ends in
cases in which democracy threatens to fail to reﬂect their deepest commitments,
we should expect increasing instances of exit. In many cases, exit will
be of the non-obstructive kind, but in some exit will take more hostile,
obstructive forms. And in certain cases, non-obstructive exit will lead to
obstructive exit. In any case, both forms of exit are hazardous for democracy.
Can anything be done?
18
I am, of course, thinking again of Rawls, who writes, “a continuing, shared understanding on one
comprehensive religious, philosophical, or moral doctrine can be maintained only by the oppressive
use of state power” (2005: 37). But this thought is shared by theorists otherwise opposed to Rawls, see,
for example, Phillips (1991: 131), Sanders (1997), and Young (2000: 49).
The problem of deep politics 41