North Africa, West Asia

An inversion of democracy: the case of Alabama and Israel

Democracy does not end at the ballot box. All humans are equally deserving of respect. The legislators of Alabama and Israel have undermined the trust placed in them by the public and so we must question their commitment to their duty to serve.

Michael Goldin
10 December 2014
Alabama State House.

Alabama State House.Spyder Monkey/Wikicommons. Some rights reserved.The political right are rarely the most zealous supporters of written constitutions and international human rights treaties. An obvious exception to this is the American right, who somehow manage to champion the US constitution but at the same time advocate practices it explicitly proscribes; for example, unification of church and state, and torture.This seemingly contradictory stance is explained by their originalist approach to interpretation which means that they do not defer to the constitution per se, but to the social and moral landscape of America in 1789 which they believe should persist in perpetuity.What conservatives do not like about these documents is the concept of fundamental rights. This is the notion that everyone, no matter how female, gay, criminal or melanin-containing they are, are to be dignified as 'human' by respecting certain inalienable rights. The great irony here is that those who oppose the concept of rights are often advocates of a small state; yet by limiting the sovereignty of the individual they are necessarily extending the power and reach of the state into people’s private lives.The way we protect ourselves from the tyranny of the state and the elected, transient partisans who wield its power, is by allowing courts to restrict the actions of the state, based on legally entrenched rights. A common rejoinder to this approach is that since this approach circumvents the ballot box, it must be undemocratic.There are a number of responses to this. Mine is that it fails to fully grasp the nature of democracy. Democracy cannot be the rule of the people, such a thing would be impractical and no doubt at worst some horrific mob-rule; democracy is rule for the people. The state exists only to serve its citizens and its politicians are mere representatives who mould the state and its laws for the benefit of its citizens.In an inversion of democracy therefore, politicians are trying to pass laws which curtail the ability of their Supreme Courts to use the constitution to strike down incompatible legislations in an effort to pursue their political agenda. The Alabama state legislature has recently done so implicitly, yet a group of right-wing politicians in the Israeli Knesset has done so explicitly, ignoring the Supreme Court’s protestations that they are one of the few checks on the state's brutality directed towards minorities.In the recent mid-term elections, Alabaman voters were additionally asked to vote on five state constitutional amendments. The first of these (which passed) “prohibit[ed] courts and other legal authorities from applying foreign law if doing so would violate rights guaranteed to citizens of Alabama.”The purpose of this amendment was to prevent the frankly racist notion that Sharia law is about to be implemented in America. It was couched in such terms since an explicit amendment to such effect in Oklahoma had previously been struck down by the federal courts.Ignoring (if one can) the bigotry of this amendment, it may well contain a number of constitutional problems. It is not uncommon for the US Supreme Court to take account of foreign laws when deciding controversial cases. A high profile example of this was Roper v Simmons (2005) which held that the execution of minors was a violation of the Eighth Amendment. The majority was clearly very influenced by the restriction on such a practice in other countries, with Justice Kennedy saying, “the Court has [often] referred to the laws of other countries and to international authorities as instructive for its interpretation”.This is standard practice for higher courts, which are making and not simply interpreting law as surely they want their legislative direction to be influenced by the best legal systems around the world. Indeed, the US Supreme Court has often done this, in particular where America seems to lag behind other democracies in such regards as: capital punishment, gay rights, and reproductive rights.The problem here is obvious. If Alabama cannot implement foreign laws, then judgments handed down by the Supreme Court which have been decided on the basis of the prevailing legal attitudes in other countries cannot be binding on Alabama. It is very unlikely that this is how it works in practice (convention presumably prevents Alabama from doing this) and it is even more unlikely that it will be implemented to such effect.Nevertheless, it chips away at the credibility of the Supreme Court, something it relies upon in other cases where its judgments must be implemented. There is very little the court can actually do if Congress refuses to implement its decision. It therefore counts on the respect that politicians and the public pay towards itself and the constitution that it protects in order to ensure compliance.What a group of legislators in the Israeli Knesset are doing is much more sinister. A bill, sponsored by Ayelet Shaked of the far-right party Bayit Yehudi, has been given government support by the Ministerial Committee for Legislation. The bill would allow the Knesset to override decisions of the Supreme Court, which hold that legislation infringes fundamental human rights.The bill was born out of a recent controversy over the court’s decision that indefinite detention of illegal immigrants violated the Basic Law: Human Dignity and Liberty, Israel’s constitutionally enshrined human rights laws.The motives of the coalition government are manifest. They are implementing an uncompromisingly right-wing agenda which includes treating illegal immigrants with contempt, ignoring their obligations towards asylum seekers, perpetuating de facto discrimination against Arab-Israelis and assisting the settler movement.What all of these have in common is the disregard for basic human dignity. Whether it be ignoring the plight of families fleeing famine and persecution or making a mockery of the right to private property and self-determination, this government simply cannot bring itself to treat others like human beings. No wonder then that this government is doing everything it can to undermine the human rights ideal which Israel has entrenched in law. Israel's politicians and legislators are not doing this in a vacuum. The Basic Law: Freedom of Occupation (not that sort of occupation), already has an override clause in it which is modelled on an override clause in Canada’s Charter of Rights and Freedoms.However, not only are such things profoundly undemocratic, but as has been pointed out, unsurprisingly unpopular. Many in Canada seem to be regretting giving politicians this unchecked power, and this should probably have been expected, given that it undermines the delicately balanced system of checks and balances on state power. Canada is hardly a good example for Israel to draw on.Legislators who do not take human rights seriously lose the right to call themselves democratic. For it is only if they respect the dignity of those they serve that they have right to the mandate of rulership. The legislators of Alabama and Israel have undermined the trust placed in them by the public and therefore we must question their commitment to their duty to serve.Democracy does not end at the ballot box, it is about the state serving all its constituents rather than a particular section of society regardless of whether they are of a particular gender, religion or ethnicity. That we respect the dignity of humanity requires no more justification than that. Yet when our leaders forget to do so, we must question ourselves for our choices at the ballot box, but more importantly, we must share the collective shame that as a species we have not yet come to the understanding that all humans are equally deserving of respect.

Had enough of ‘alternative facts’? openDemocracy is different Join the conversation: get our weekly email


We encourage anyone to comment, please consult the oD commenting guidelines if you have any questions.
Audio available Bookmark Check Language Close Comments Download Facebook Link Email Newsletter Newsletter Play Print Share Twitter Youtube Search Instagram WhatsApp yourData