By: Alexis Eisa
Democracy, derived from the Greek words “demos,” meaning the people, and “kratia,” meaning the power of authority, is internationally recognized as the power to the people. Yet, America, the alleged pioneer and leader in democracy, has seen its democratic principles slowly eroded away. So much so, that the erosion and resulting political system begs the question – Is America a democratic society?
The Universal Declaration of Human Rights (“UDHR”), widely recognized as customary international law, or law binding on all states regardless of adherence, mandates that “the will of the people shall be the basis of the authority of government” for democratic societies. The “basis of the authority of government” is a sweeping mandate, including all branches of government in its requirement for the will of the people’s governance. Thus, the judicial branch in America, as part of the government is, ipso facto, required to be governed by the will of the people. American jurisprudence has remnants of this – for example, the reasonable person standard is wholly guided by who and what society deems reasonable. Yet, the will of the people seldomly impacts the judiciary, their considerations, or decisions.
In the Summer of 2022 alone, the Supreme Court of the United States (“SCOTUS”), which prescribes the supreme law of the land, ruled on several issues that were directly against the will of the people statistically. For example, although a “majority of Americans now regard abortion as ‘morally acceptable” and roughly 66% of American did not want Roe v. Wade overturned, SCOTUS overruled Roe v. Wade, directly going against the will of the people. According to Pew Research Center, a majority of Americans disapprove of SCOTUS’s Dobbs v. Jackson decision.
Another example illuminating the lack of democratic governance in America is SCOTUS’s decision on gun control. Around 80-90% of Americans support universal background checks and 70% want new legislation on gun control prioritized over ownership rights. Yet, in July 2022, SCOTUS struck down a New York law requiring a proper cause for concealed carry permits, signaling ownership rights as a priority for the entire nation. Once again, SCOTUS ruled against the will of the people. Yet, under the UDHR, in a democratic society, the judiciary, as part of the government, should be governed by the will of the people.
Furthermore, the United Nations, in deriving its definition from its treaties, defines democracy as providing “[a]n environment that respects human rights and fundamental freedoms, and in which the freely expressed will of people is exercised. People have a say in decisions and can hold decision-makers to account.” Yet, the decisions of the judiciary in America, such as SCOTUS, do not give people a “say in decisions.” Instead, even when the will of the people has been pronounced for decades, such as the approval of abortions and the long-rule of Roe v. Wade, SCOTUS refuses to let the American people have a “say” in its decisions.
The United Nations further defines democracy by mandating certain freedoms and rights, such as the independence of the judiciary. Although America is considered the pioneer in independent government functions and checks and balances, America’s judiciary system severely lacks the independence necessary for a democratic society.
SCOTUS’s current layout is six Republicans, three Democrats, six Catholics, two Protestants, one Jewish person, and zero LGBTQI+ persons. Independence typically translates into complete autonomy and the absence of any forces/actors having an influence over the system, but independence also means an absence of any overwhelming majority and an absence of any congregation of certain beliefs, ideas, etc. When there are several persons within an “independent” group that come from the same religious sector, political sector, etc., then such independence is sorely limited. Thus, a judiciary that decides the supreme law of the land with six justices from the same religion, zero from other common religions, zero from several different communities of color, zero from different sexual orientations and gender orientations, cannot be deemed as independent. Rather, there’s a majority of shared views that obliterate any independence, pushing the judiciary closer to the views of the congregated ideas. Such lack of independence is exemplified in the above discussion of the will of the people being heard and ignored by SCOTUS.
As UNESCO stated, “[t]he main thing today is to free individuals and groups from the stifling control of a governing élite speaking on behalf of the people and the nation.” Today, in a democratic republic where the judiciary is supposedly “independent,” it is unlikely that many Americans would state that democracy’s goal of freeing them from the governing elite speaking on their behalf has been achieved. In fact, SCOTUS’s recent slew of decisions would exemplify the lack of democratic principles within America’s government. The judiciary, as part of the government, with power over the people, undoubtedly speaks on behalf of the people by making supreme laws of the land. Thus, considering that SCOTUS’ decisions have been incompatible with the will of the people, it is irrefutable that America’s current political system is still working towards the goal of democracy as outlined by UNESCO, and has immeasurable steps to take prior to achievement.
In conclusion, although the question is left open as to whether America is a democratic society, it is utterly clear that America is lacking fundamental democratic principles necessary for the will of the people to be heard, to be respected, and to govern.
Alexis, a current 3L with her eyes set on social justice and equity, is determined to ensure all persons their entitled rights through international human rights law work.