The first major clue about those preoccupations came from the symposium’s theme, which the organizers had designated as “Law and Democracy.” As the programming unfolded over the next day and a half, it became alarmingly clear that, even among the buttoned-up young members of the Federalist Society — an organization not known for its political transgressiveness — the relationship between those two principles is far from settled. From radical new theories about election law to outlandish-seeming calls for a “national divorce” the symposium-goers were grappling with ideas that raised fundamental questions about American democracy — what it means, what it entails, and what, if anything, the conservative legal movement has to say about its apparent decline….
“Democracy is what philosophers call an ‘essentially contested concept,’” said Daniel Lowenstein, a professor of law emeritus at UCLA and an expert in election law, during a panel on Friday evening. “Differences that seem on their surface to concern the meaning of the word ‘democracy’,” he added, are actually struggles to advance particular and controversial political ideas.”
What democracy does not mean, Lowenstein argued, was “plebiscitary democracy,” or simple rule by democratic majorities. Citing the Federalist Papers — the namesake of the Federalist Society — Lowenstein suggested that governance based on simple mathematical majorities would enable “tyrannical domination of the minority by the majority.”
“The assumption that only plebiscitary forms [of government] are truly democratic is fallacious, and should be openly and directly contested by those supporting non-plebiscitary positions,” he added.
Behind me, somebody whispered, “We’re a republic, not a democracy” — a tongue-in-cheek slogan that some conservatives have adopted as a way to slyly signal their approval of minority rule.
Later on in the same panel, Joel Alicea, a law professor at the Catholic University of America, diagnosed the apparent threats facing American democracy today — political violence, abuses of governmental power, and attempted election subversion, to name a few — as symptoms of a deeper malaise.
“At this point in our society, we can’t even agree whether somebody is a man or a woman, which suggests such a deep level of moral disagreement — and even disagreement about basic notions of reality — that to say that society can form an overlapping consensus is hopelessly naive,” he said. Faced with such fundamental disagreements, Alicea said that citizens have to choose between two approaches: coercion, suppressing disagreements by means of force and intimidation, or conversion, the slow and steady work of persuading people who disagree with you to come around to your point of view.
Alicea advised the attendees to embrace conversion rather than coercion, but in the question-and-answer session after the panel, an audience member proposed a third option: a full-scale national divorce, of the sort recently proposed by Republican Rep. Marjorie Taylor Greene of Georgia.
On the dais, the panelists squirmed at the invocation of such pedestrian political ideas, and Alicea offered some high-level philosophical objections to the idea that America should fracture into independent ideological entities. But the question seemed to linger in the room: If the disagreements over democratic first principles are as serious as Alicea had suggested, then was the idea of a wholesale political rupture really so radical? …
But now, as the American right lurches toward a more explicitly anti-democratic position, the society’s members are face to face with a troubling possibility: that most conservatives couldn’t care less about their high-minded principles, and, even worse, that many of their allies view their attachment to those principles as a quaint — and slightly embarrassing — relic of the bygone era when conservatives still had to be coy about what they actually believed. And whether or not those criticisms are true, there was a definite sense of cognitive dissonance at the conference, where many of the panelists appeared willing to endorse the logic of anti-democratic arguments but shied away from those arguments’ more radical conclusions….