Towards the end of the Peloponnesian War Athens had to fight for its very life. Their catastrophic defeat in Sicily in 411 B.C. meant that their survival depended on maintaining their lifeline of supplies from allies in the eastern Aegean Sea. This meant in turn that Athens would have to win virtually every naval battle to stay afloat.
At the battle of Arginusae in 406 B.C. the Athenians got a decisive victory over the Spartan League. Athenian custom and religion dictated bringing home the bodies of the slain to give them proper burial. Unfortunately a storm arose in the aftermath of the victory, and in the ensuing confusion the Athenians retrieved just a fraction of their dead.
You might think that the Athenians would rejoice in the victory and shrug off the failure to retrieve the dead. After all, they might not have survived as a city-state had they lost. Instead, (due in part to a confluence of unusual circumstances described expertly by Donald Kagan in The Fall of the Athenian Empire) they put the eight victorious generals on trial for impiety and dereliction of duty. They found all eight guilty, and executed all eight that same day.
A few days later the Athenians lamented their actions and believed they had committed an injustice. Such an injustice needed rectified, so they put the prosecutor on trial for inciting them to murder. He was found guilty, and he too was put to death.
This unfortunate incident no doubt deeply impacted Socrates, and in turn Plato, and from there the whole attitude of western political thinkers toward democracy. In the modern era, ardent defenders of democracy like I.F. Stone argue that such ancient and early-modern critics cherry-picked their objections to democracy and took certain incidents out of proportion. I wonder, however, whether or not the above incident isn’t symptomatic of democracies in general, and if the essential critique offered by Plato and his followers might have merit.
I thought of the Battle of Arginusae when a friend sent me a fascinating graph of the speed of social change in America in the 20th century. With the Supreme Court hearing arguments on the constitutionality of gay marriage it seems appropriate to consider our history of seismic shifts [note to the reader–this post was written originally a couple of months before the courts made gay marriage the law of the land. We have seen since then how fast it has gained traction, and how quickly the marriage issue has spilled over into transgender issues. The speed of the change is all the more remarkable considering that in 2004 many states voted to try and prevent gay marriage from becoming law, and in 2008 President Obama supported what I believe he called “traditional marriage”].
Of course the ability to change quickly is in itself neither good or bad, as with speed we can adopt either good or bad courses of action. What we should consider, however, is what this means for us as a democracy, and where this puts us relative to other democracies at other times.
Change began to accelerate in the 20th century, and this coincides with two other shifts in American life. The first was the rise of the prominence of the U.S. internationally, and along with that the inevitable rise of executive power. With a few exceptions, the 19th century saw congressional dominance, the 20th executive dominance. No one president or party can be blamed for this, if blame is what you seek. As with Rome, the growth of power inevitably centralizes power. Add to that, the Constitution puts foreign policy mostly in the hands of the executive. The centralization of power in the executive makes change come more quickly, if for no other reason than efficiency.
But this in itself can’t explain the radical leaps noted above in the graph, because changes in Civil Rights and gay marriage have not come primarily from executives, but from the courts, which are supposed to be more immune to the whims of the people, be those whims good or bad.
We might also recall that De Tocqueville astutely predicted that modern democracies could create an unstoppable force when the idea of equality joined with the idea of majority power. This force, when mobilized, created magnificent massed armies (think Generals Sherman, and Patton). But this same power could apply to our social lives and our moral compass. Democracies, De Tocqueville argued, would not create tyrants in the traditional sense. They would leave the body alone. Rather, they can at times kill the soul through enormous and unseen social pressures. So just as our military efforts could go from nothing in December 1941 to significant victory in June of 1942 ( the Battle of Midway), so too we can move with the same speed and power socially. This power would be great enough to steamroll even the supposedly resistant-to-change court system.
But this won’t work entirely either, for it presumes that the courts were the last domino to fall during these seismic social changes, whereas with abortion, civil rights, and gay marriage, they have spearheaded change.*
With this realization we get pressed beyond typical right/left categories and our modern, narrow vision, beyond arguments about activist courts and the like. This should let us know that we may be nearing our prey.
I have two possible explanations to suggest:
The first deals with the fact the courts interpret the Constitution. While the founders no doubt positioned the courts as above the political process to make them slower, this very position in many ways allows them to move faster. They have no Congress to lobby. But I still think this fact leaves out part of the explanation. If the founders set up the Constitution to greatly reduce the power of mass democracy (and the fear of “mob rule” runs throughout the Constitutional Convention debates as recorded by Madison) then we might wonder whether or not we live under a different Constitution altogether. Of course the words remain the same, but how we interpret and stretch it (note how the commerce clause experienced this in the 20th century) changed over time. The founders hoped for the Senate to dominate our government. Now we have powerful courts, an extremely powerful executive, and an almost exclusively reactive legislature that asserts itself only when it stands in the way of what the executive wants to do
Thus, when the courts interpret the Constitution today, they in fact interpret a different constitution then the one the founders set up. That explains the significant and rapid social changes.
The second hypothesis . . .
I think that the Constitution sought to create a senatorial democratic-infused oligarchy based on the Roman Senate of old.** If true, at first glance we obviously have a different constitution than the founders envisioned. But a second glance might suggest that not a great deal has changed. If polling data that suggests most Americans are pro-life and not in favor of gay marriage is correct, then we still can say that an oligarchy rules us. This oligarchy no longer resides in the senate, however, but in other places, be it media, the courts, and so on. If correct, then at least some of the fundamental guiding principles of the Constitution have not changed, but how we apply them has.
Finally, we have the idea proposed by Christopher Ferrara in his thought provoking book Liberty: The God that Failed. Ferrara suggests that for Americans, the idea of liberty never had connections to tradition, religion, community, and so on but always stood for individuals defining themselves against them. Liberty means power, power to do as one wishes, whether that be to own slaves or change the definition of marriage. As to the good Americans have done (civil rights and racial equality, a relatively open immigration policy, etc.), one could argue that we often do these things irrespective of law, or stretch existing laws beyond recognition to justify them. Good laws, bad laws, traditions, all become very inconvenient and discarded in a pinch when we decide we want something else. Historically we have remarkable consistency on this score, whether Washington bypassed Pennsylvania’s laws on slavery, or Andrew Jackson ignored the Supreme Court against the Cherokees, or the modern explosion of executive orders from both parties, and so on, and so on. Washington the Federalist is supposed to be the conservative, while historians speak of the “Jacksonian Revolution.” But perhaps they had a lot more in common than we might suppose.
I still think the first possibility above the likeliest by a slight margin, but I waffle, and like many of us, I am confused, overwhelmed, and ultimately not quite sure what’s going on.
But those really in the know have another theory . . .
*Incidentally, one look at the graph shows that there must be a strong connection between women voting, prohibition, and equality. I think we can tie prohibition to the idea of equality in ways akin to laws about motorcycle helmets and seat-belts, i.e. we’ll all be safe and healthy together — instead of liberty (I’ll smoke and drink and ruin my life if I want to — it’s my life after all — and you can’t tell me otherwise).
**Before we pass judgment, consider that the Roman Republic must surely rank as one of the most successful governments of all time by most measurements. They had roughly 350 years of relatively problem-free yearly elections and created an empire rooted in concepts of law that last to this day. So strong were Rome’s institutions and ethos that they still held it together long into its “empire” phase, despite some ridiculously bad emperors along the way.