The Antinomy of Democracy

The distinction between “procedural” and “substantive” concepts has long been a familiar one to constitutional lawyers. For years constitutional historians have been criticizing the Supreme Court for having transformed “due process of law” from a procedural to a substantive concept. The court, it is maintained, should restrict itself to determining whether or not lawmakers had observed proper procedure in the making of the law, rather than determine whether, in the judges’ opinions, the law is likely to produce the wrong kind of social and economic consequences. Less attention has been paid to the distinction between democracy as political procedure and democracy as socio-economic substance. In the days of those whom Mr. Carl Becker calls the “inspired prophets of democracy,” it was generally assumed that the good procedures associated with political freedom made for good substance, measured in terms of social well-being; and that good substance in turn was conducive to good procedure. By and large, it was taken for granted that a healthy body politic more or less automatically generated a healthy body social, and vice versa.

Even in those long past halcyon days, there were skeptics —like Rousseau—who were far from sure that good democratic procedure in itself was adequate to produce good democratic substance. But it was not until well along into the nineteenth century, after a good deal of actual experience with the workings of the democratic process, that influential social reformers began to wonder if there were not an essential distinction between the achievement of democratic ends, computed in socio-economic measurements, and strict adherence to the procedural ways and means traditionally associated with individual freedom and community self-government. This distinction was never systematically thought through. It was never a black-and-white, either-or proposition. Even the Marxist social reformers never completely closed the door on the possibility that good democratic procedure might, under the proper circumstances, prove capable of producing good democratic substance. Even the James Bryces and the John Morleys never completely forgot that the goodness of laws might be measured by what they produced, socio-economically speaking, as well as by how they were produced, procedurally speaking. But even so, it was generally possible to tell from a reformer’s general emphasis whether he was interested primarily in fair elections, et cetera, or in fair living and working conditions, et cetera: whether he could be pigeonholed as a procedural or as a substantive democrat.

Since 1929, and especially since 1933, it has become increasingly difficult to pigeonhole the democratic reformers. Both procedural democracy and substantive democracy have been subjected to a series of lethal blows. On the home front, we have been exposed for more than ten years to the most excruciating documentation of the fact that the socio-economic substance we see about us is a “shabby substitute,” to use Mr. Becker’s phrase, for what we had hoped to see in the good democratic society. From abroad, we have been exposed for more than five years to an equally excruciating documentation of the fact that the abandonment of democracy as a procedural method opens the door to the most catastrophic social consequences. The result has been that sensitive thinkers have been compelled, as never before, to re-examine their postulates as to the proper balance between substantive and procedural elements in the democratic way of life. In the one direction, we have lately seen leading expounders of Marxism, whom we had grown accustomed to pigeonholing with the substantive school of democracy, clinging desperately to the procedural guaranties; while in the other direction, we have heard our latter-day James Bryces placing their emphasis on the need for restoring the type of economic conditions without which political democracy is incapable of functioning properly. And in both directions, we have detected a growing note of equivocation and confusion.

To be sure, we still hear, periodically, a clear, unequivocal note, such as Mr. Bernard Smith strikes in the preface to “The Democratic Spirit,” his anthology of enthusiastic sentiments from the sages and saints of American democracy. Mr. Smith assures us that the great majority of the people, who have been pressed down to a sub-democratic level of social and economic existence, will recapture “the democratic spirit” and reassert their inalienable democratic rights. We are still reminded periodically, as we are by Mr. V. F. Cal-verton in “Where Angels Dared to Tread,” that our American past is rilled with the loftiest of spiritual and social aspirations, embodied in a host of intrepid Utopians. And we are still given an occasional reminder of a quite different type, such as that of Mr. Zechariah Chafee, Jr., in a heavily revised and amplified version of his earlier classic, “Free Speech in the United States,” that in times of crisis and emergency, our democratic procedures are far from being what they are theoretically supposed to be. But in the case of all such reminders, we cannot help reminding ourselves that despite their very real insights, they are not acutely relevant to what is uppermost in the minds of the intellectual generation which is impaled on the horns of “the dilemma” of modern democracy.

This becomes evident if we compare the tone of such books with that of Mr. Dos Passos’s “The Ground We Stand On,” and still more apparent when we set alongside them Mr. Becker’s “Modern Democracy” and “New Liberties for Old.” In their effort to strike a working balance between substantive democracy and democratic procedures, Mr. Dos Passos, coming from the one quarter, and Mr. Becker, coming from the other, find themselves standing on a common ground, at once more central and more treacherous than the ground on which they formerly stood. Even with Mr. Dos Passos, who is the latest distinguished example of the center-ward drift of the substantive democrat, the difficulty of utilizing good democratic procedure tp recreate good democratic substance becomes apparent. How can “U.S.A.,” as we know it from Mr. Dos Passos’s novels and from the preface to his maiden venture into historiography, be made over into the image of the good society, which the author has come to identify with Roger Williams and Sam Adams and Tom Jefferson? How can this “slaughterhouse of industrial exploitation”—about which the indignant crusader against monopolists minces no epithets—be torn down by the same type of political procedures which helped to rear, brick by brick, the towering edifice of monopolistic control? This is one of the major aspects of the great dilemma.

But instead of facing what is implicit in his merciless statement of the situation, the author of “The Ground We Stand On” turns his face in supplication to the Anglo-Saxon gods. With the aid of a once-accredited school of Anglo-American scholars, Mr. Dos Passos resurrects the fiction that long, long, long ago, the founders of Anglo-Saxon parliamenta-rianism were entrusted by a far-seeing Providence with a peculiar mission and a peculiar genius for governing themselves through the procedural arts of compromise and mutual inter-accommodation. And in all seriousness, Mr. Dos Passos urges his fellows to recapture the spirit of their magnanimous Anglo-Saxon forefathers. With these immortal procedures at their beck and call, the good people of “U.S.A.” can rebuild the good socio-economic substance of the future.

Most of the procedural and substantive democrats involved in this general drift toward the center are prevented, if not by their historical sense, at least by their sense of humor, from leaving the American substance-to-be on the lap of the Anglo-Saxon gods. Whereas the apprentice historian winds up with almost a sigh of relief over his discovery of an alternative to the totalitarian way out from the “slaughterhouse of industrial exploitation,” Mr. Becker, subtle master-craftsman of the art and science of history, keeps his eyes fixed on the cruel fate which may befall democratic man as he flees from the plagues of monopoly capitalism only to find himself exposed to the germs of totalitarian dictatorship.

It is in the concluding pages of his all too brief classic on “Modern Democracy” that Mr. Becker faces this dilemma most unflinchingly. In the present collection, “New Liberties for Old,” the most significant essays are concerned less with the great dilemma than with the reaffirmation of an old faith in truth and human reason. This faith has re-emerged all the stronger from having been subjected, particularly during the pre-Munich years, to the doubts and misgivings which beset the author during his excursions into the underworld of historical relativism and pragmatic revolt against the universals. If we are to preserve our confidence in the future of democracy, whether as substance or as procedure, we cannot dispense with some such residual faith in truth and reason and intelligence and integrity and good will. Both what Mr. Becker says and the unforgettable way in which he says it give us a sense of great reassurance. And yet, as members of this socially minded but at the same time procedurally minded generation, we shall not be allowed for long to forget our double rendezvous with the devil of social injustice and the deep blue sea of political oligarchy. We, like Mr. Becker, cannot transcend the great dilemma by spiritual fiat.

Can our eventual democratic destination, known as the good society and the good individual, be reached by the good procedures of free election, free representation, and popularly controlled administration of the laws? Can the rank and file of this far-from-good society, which Mr. Dos Passos and Mr. Becker see about them, make and enforce good laws? Or must the good laws come first, from some other, some less corrupted source? If so, are we willing to subordinate procedural ways and means to larger substantive ends? This is more than a latter-day dilemma; it is an antinomy of the political mind which antedates by many generations the crash of ‘29 and the crash of ‘83; an antinomy which takes us back, in a sense to Milton, but more directly to Rousseau, the Arch-Ambivalent of the 1750’s, who, in his “Contrat Social,” has given us the classic statement of the case not only for democratic self-government, but also for the specially inspired legislator who is equipped to make good laws for a people still too corrupted by perverted institutions to make good laws for itself. The antecedent to the great dilemma of modern democracy is the great antinomy of eighteenth century democracy which was propounded by Rousseau and his Jacobin disciples. It is into this basic subsoil of ambivalence that we must dig if we are to get at the roots of our own hesitations between democratic procedure and democratic substance. In this direction, it is to be hoped, the real sequel to “the dilemma” of “Modern Democracy” will run.