People, not courts, shape norms 

What healthy democracies need are ongoing processes of democratic deliberations among citizens

The BJP’s leadership says that disputes about mosques, temples and rights to worship, which are tearing up Indian society, will be settled by courts according to the Constitution. Pew Research Center surveys and the Global State of Democracy Report, 2021, reveal that two-thirds of citizens in democratic countries, including the U.S., do not trust institutions such as elected assemblies and courts to represent their will. Another horrific assassination of school children in the U.S. has caused the U.S. President to throw up his hands. The U.S. Senate is divided, and the Supreme Court continues to refer to the Second Amendment of the Constitution to disallow any dilution of a fundamental right of citizens to bear arms. The looming possibility of the U.S. Supreme Court denying women their rights to reproductive health is dividing the U.S. further. In India, laws regarding citizenship and sedition are being used to curb the fundamental rights of citizens and are being contested in the courts.

The U.S. and India are democracies founded on written Constitutions, which state the democratic principles adopted by ‘We, the People’ living within the geographical boundaries of these countries. The Constitutions define the institutions which are required to maintain democracy — principally elected assemblies and independent courts.

The U.S. and India must lead the spread of democracy around the world, U.S. President Joe Biden declared at the Quad summit, to contain threats from China’s and Russia’s authoritarian governments. Both India and the U.S. need to put their own democracies in order. The leaked draft judgment by U.S. Supreme Court Justice Samuel Alito regarding women’s rights to abortion for reproductive health highlights the fundamental problems of democratic governance in all constitutional democracies, including India.

The draft raises questions about conceptions of human rights. How are concepts of human rights formed? Which institutions have the constitutional rights to enforce them? Justice Alito says the fundamental question before the court must be answered systematically in steps. One, whether the reference to ‘liberty’’ in the Fourteenth Amendment of the U.S. Constitution protects a particular right; two, whether the right at issue in this case is rooted in the nation’s history and tradition; three, whether it is an essential component of ‘ordered liberty’; four, whether a right to obtain an abortion is supported by other precedents.

Conceptions of ‘freedom’, ‘liberty’ and ‘human rights’ are not cast in stone. They are always works in progress. All citizens were not granted equal rights in the U.S. Constitution in 1787: women and coloured people obtained these rights later; and people of various genders have begun to be treated equally only in this century. These new rights, not explicitly mentioned in the U.S. Constitution, have emerged with struggles, from an ongoing civilisational dialogue.

The Alito draft explains why courts and elected assemblies find it difficult to determine the will of the people. “We all declare for liberty; but in using the same word, we do not mean the same thing,” Abraham Lincoln had said in 1864. Moreover, written constitutions, which courts must follow, state what the will of the people was at some prior time in history. The will of the people changes as ideas of human rights and liberties evolve. Therefore, good democratic governance requires a robust process for those who govern the people to continuously listen to the people. Also, the people must listen to each other; people ‘like us’ must listen to ‘people not like us’ for consensus on what ‘We, the People’ want, which is the foundation of all democracies.

Citizens want many things and may not agree about everything. The Arrow Impossibility Theorem, propounded by the economist Kenneth Arrow, is a fundamental dilemma in social choice theory. The Impossibility Theorem proves that there is no voting method in which voters, by merely expressing their votes as ‘yes’ or ‘no’, can produce a unanimous outcome, no matter how many rounds of votes there are. The mathematical problem here is that individual voters’ preferences cannot be sliced and diced; nor can the choices before them be made too simply as ‘this’ or ‘that’ to enable easy voting and counting (as done in referendums such as Brexit).