How democracy really dies

And how the Israeli Supreme Court is furthering its demise

After America elected Donald Trump, the Washington Post adopted the slogan “Democracy dies in darkness.” This slogan is much mocked and for good reasons. Not only is it pretentious, it’s not true. “Darkness” descends only after democracy has died.

Democracy dies the way it always has. It dies in the usurpation of the public’s right to decide.

Throughout history, the usurper has usually been a tyrant, backed by force. But it can be a tribunal, such as a court. It can also be a larger body or even a somewhat disjointed group of like-minded bodies taking important measures without even the tacit consent of the governed.

The greatest threat to democracy in America is not Donald Trump. In the sad event of his election, Trump’s power will largely be curbed the same way it was during his first stint as president — by legislators and by judges applying the Constitution. In the very unlikely event that these checks fail, his power will be curbed by the military, which does not support him to anything approaching the degree a Trump tyranny would require.

The greatest threat to democracy in America is the permanent federal bureaucracy, which in some ways resembles a giant tribunal. Uniformly leftist and certain that its judgments are superior to those of the American public, the permanent bureaucracy seeks to impose its will and, when deemed necessary, to thwart the will of officials selected by the president to run the government’s various bureaus. Even if the judgments of the bureaucrats were superior to those of the president and the electorate, the imposition of the former set of judgments would be fundamentally undemocratic.

In Israel, the greatest threat to democracy is its Supreme Court. Hating so-called right-wingers, especially deeply religious ones, with the same passion that the left in our country does, that court granted itself the power to overturn laws it deems “unreasonable.”

Thus, in Israel the test for overturning a law isn’t whether it violates a greater law — i.e. a constitution. Israel has no constitution. The test, instead, is whether a few unelected judges think the law is really, really bad.

Fed up with this blatantly undemocratic arrangement, Israel’s elected legislature passed a law to alter it. However, in Catch-22 fashion, the Supreme Court, by a vote of 12-3, asserted its power to review the “reasonableness” of this law. And by a vote of 8-7, it ruled that it was unreasonable to take away the court’s right to run Israel.

Because Israel is at war, the Supreme Court’s affirmation of its aggrandizement will fly under the radar here in the U.S. In Israel, it won’t. However, the ruling may land with much less of a bang than would otherwise have been the case.

That would be unfortunate. If the Knesset passes “unreasonable” laws, the remedy in a true democracy must be to elect a new Knesset (which Israel does with regularity), not to have a handful of unelected judges veto the laws. And if a law denying veto power to these judges is to be reviewed, then, in a true democracy, it must be reviewed, not by the judges themselves, but by the people, via referendum.

Adam Smith wrote, “there’s a great deal of ruin in a nation.” He meant that it takes an awful lot of bad decisions and adverse events to ruin a nation.

I wonder whether Smith’s wise adage applies to Israel. This is a tiny nation located in the world’s toughest neighborhood and with a large number of people either inside its borders or just outside of them committed to the state’s total destruction. And this is a nation whose main, and nearly only, ally seems unlikely to keep supporting it for more than a decade or two.

Israel’s elites have let the nation down in a very big way. The monumental blunders and incompetence of its prime minister, military, and intelligence community — stemming in each case from colossal arrogance — led to a large-scale massacre and to a war with a devastating impact on the Israeli economy. The colossal arrogance of its jurists undermines democracy at a time when, more than ever, the people of Israel need maximum power to overcome the shortcomings of the nation’s elites.

The United States is putting Adam Smith’s adage to the test. Israel seems bent on putting it to a more severe one.