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Mike Lee and the Illiberal Chic

With his criticism of ‘rank democracy,’ the Utah senator signals his friendliness to the opponents of classical liberalism.
October 15, 2020
Featured Image
U.S. Sen. Mike Lee (R-UT) who recently tested positive for coronavirus (COVID-19), removes his mask as he arrives for the second day of Supreme Court confirmation hearings for Judge Amy Coney Barrett on Capitol Hill on October 13, 2020 in Washington, DC. Barrett was nominated by President Donald Trump to fill the vacancy left by Justice Ruth Bader Ginsburg who passed away in September. (Photo by Leah Millis-Pool/Getty Images)

We need to talk about the illiberal chic on the right.

Case in point: Last Wednesday, Senator Mike Lee fired off a tweet that took aim at American democracy itself:

A few hours later, he doubled down:

It might be tempting to dismiss these poorly spelled, middle-of-the-night tweets as nothing more than a restless COVID patient’s failed attempt at profundity within Twitter’s strict character limit.

But at another level, Senator Lee sent a well-crafted message, one that came through loud and clear: The American experiment is worth it only when my view prevails.

This message fits a growing and disturbing trend. Among the conservative intelligentsia, especially in certain legal circles, it has become stylish to view self-governance as nothing more than a means to a very particular set of ends. And should “conservative” policies lose out in the democratic process, then liberal democracy itself should go.

The clearest example came this past March, when Harvard Law Professor Adrian Vermeule penned an article in the Atlantic making the case for replacing originalism with what he calls “common-good constitutionalism”—the idea that judges should interpret the Constitution to empower “strong” government to “direct persons, associations, and society generally toward the common good.”

The article didn’t even try to hide the ball. According to Vermeule, the law should reflect “respect for the authority of rule and of rulers” and “candid willingness to ‘legislate morality.’”

Vermeule is confident that his fellow Americans will eventually learn to love theocracy:

Subjects will come to thank the ruler whose legal strictures, possibly experienced at first as coercive, encourage subjects to form more authentic desires for the individual and common goods, better habits, and beliefs that better track and promote communal well-being.

Though by no means as outlandish as Vermeule, Justice Clarence Thomas openly professes the idea that the First Amendment permits a statejust not the federal government—to establish religion. Among Federalist Society members, a group once defined by a commitment to judicial restraint to protect democracy, one today hears about “active judging”—the notion that life-tenured jurists shouldn’t hesitate to strike down popularly enacted legislation.

Similar illiberal urges have been expressed by conservative commentators, including Sohrab Ahmari, who in debates against David French last year essentially disowned the Bill of Rights because it permits others the ability to make decisions he doesn’t like.

To be sure, these illiberal tendencies sometimes point in different directions. Ahmari would like to reinterpret some constitutional provisions that protect what he perceives as immoral activities; proponents of active judging seek to use the courts to lock in their preferred outcomes. But whatever their surface differences, these tendencies share a common endpoint: Upset the delicate bargain of American democracy and impose a narrow set of preferences on the rest of us.

And it’s exactly this vein of illiberalism that Senator Lee tapped into.

The senator knew what he was doing. As intellectual credentials go, his are impressive. He clerked for then-Judge Samuel Alito on the Third Circuit, worked for major law firms, served as a federal prosecutor, and provided legal counsel to the Utah governor—not to mention spent the past decade in the United States Senate. He sits on the Judiciary Committee, where this week he is interrogating a Supreme Court nominee.

It bears repeating: Senator Lee, Professor Vermeule, and their fellow travelers are just plain wrong. Liberal democracy isn’t worthy just because it produces preferable policy outcomes. Voting, marching, participating in self-government at every level—these aren’t just means to ends, they’re goods in and of themselves. Men and women around the world fought and sometimes died for what Senator Lee derisively dubbed “rank democracy”—from the Václav Havels behind the Iron Curtain to the students in Tiananmen Square to the hundreds of thousands of Belarusians risking life and limb right now in the streets.

Yes, the Founders crafted a constitutional structure that prevents the majority from easily imposing itself on a minority and places some hard limits on the government’s powers. But Senator Lee’s attack on “rank democracy” blew a dog whistle for minority rule.

And that’s where the real trouble lies: The illiberal conservative chic rejects the idea of intellectual and cultural modesty, the humility and self-confidence to admit that you might not always be correct and that your opponents might occasionally have the better of the policy debate. Adrian Vermeule knows what moral codes a strong ruler should impose. I suspect that Senator Lee probably has a very well-defined concept of human flourishing in mind, one that may well exclude a good chunk of Americans. That leaves little room for individual choice, and not much space for collective self-government.

America will be lucky if this worrisome trend little influences public opinion and dies with Trump’s defeat. But it will likely persist, receiving intellectual cover from the Adrian Vermeules and populist shots-in-the arm from the Mike Lees.

We need to call that illiberal chic for what it is: un-American.

Nathaniel A. G. Zelinsky

Nathaniel A. G. Zelinsky is a lawyer whose writings have appeared in the Washington Post, Foreign Affairs, and the Yale Law Journal, among other outlets. He holds a J.D. and a B.A. from Yale University, and an M.Phil. from the University of Cambridge. Twitter: @NAGZelinsky.