Voting Day

Abraham Lincoln argued that if a free people became indifferent to the matter of slavery, they were laying the groundwork for their own enslavement. A people that acquiesced in the enslavement of blacks would put in the place the premises that could also remove the right to vote from many whites as well.

And so a regime outwardly democratic in its forms would be turned, in its inner substance, into something else. People may be going into voting booths, marking a ballot, and they seem to be acting in the style of people voting in an election. But they may no longer have the soul, or character, of a democratic people.

Today is election day in America, and we may ask in a similar way if people understand the levels of meaning that are bound up with that act of “casting a vote.”  

There is a choice to be made, of course, among candidates and “ballot questions.”  But beyond that is the deeper question that must ever be bound up with a vote:  By casting a vote is one affirming the moral rightness of a regime of voting, a regime in which the authority to govern is derived from the “consent of the governed”?  

Does one understand that one is affirming then the equal right of all of those people in the adjacent booths not to be deprived of that regime in which they have that right to vote?  

And yet we have seen elections, some in distant places at a distant time, and some too near to us, in which people have walked into voting booths utterly indifferent to that question of whether they are obliged to preserve that freedom for the voters in the next booths, or even for themselves and their children.

The most dramatic example came eighty years ago in Germany, in the last free election before Hitler came to power. Some voters went to the polls with a willingness to put the government into the hands of a party (the Nazis) that made no secret of its desire to strip people in the other voting booths of their rights of citizenship (their rights to vote), and even their natural rights (their rights to hold their property, practice their professions, and finally even their right to live).

Some might not have believed that the Nazis would end elections and ship Jews to killing centers. But in their very willingness to take a chance on these things we find the erosion of that soul that marks a democratic people.

      Voters, in shadow, awaiting their turn

In our own day we have seen the earnest claim made for the “right” of illegal aliens to become “citizens.” However that argument plays out, it is worth posing the question to those who would become citizens: Do they regard themselves as morally obliged to preserve a regime of citizens? Do they understand that they may not be morally free to vote for a Chavez or a Castro, who would end a regime of free elections?

There was a time when those kinds of choices could be foreclosed on our ballots. But no longer.  

Thirty years ago I was debating with people in the ACLU over the matter of American Nazis parading through the suburb of Skokie, Illinois, with a large Jewish population. David Hamlin of the ACLU declared: “we must be free to hear the Nazis because we must be free to choose the Nazis.”  

In other words, for the libertarian, the case for democracy begins with the notion that there are no moral truths: We must be free to choose because there are no moral truths that show why the ends of the Nazis are any less legitimate than any other set of policies on offer in our politics. And in the final descent into incoherence, there is no truth that establishes the moral superiority of democracy and this regime of unrestricted free speech, for we must be free to vote them out.

For some of us the erosion of sensibility marked in another day by slavery is marked in our own time by the indifference to that “human person” in the womb. There is nothing one could cite to remove that whole class of human beings from the circle of “rights-bearing” beings that could not work to remove, from the protections of the law, many people walking about well outside the womb.

The matter is given a deeper import in this country by the fact that we don’t have a multiparty system in which the voters simply determine the strength of the parties that will negotiate after the election in order to determine just who forms the government. That decision in this country is made by the public at large at the polls.

If I’m a Catholic Democrat I have to decide, say, whether the interest in expanding the liberal policies on welfare is really more important than the matter of forcing Catholic institutions to support abortion and contraception in their medical plans. Or scaling back the killing of the innocent in abortion.

Those kinds of questions don’t have to be faced as fully in other systems of voting. And that is why the people voting today, doing their reckoning, are not only deciding who will form the government.

They are deciding something about themselves – about the things they care about most deeply and the principles that finally command their firmest obligation.

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. He is the author of Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is available for download. His new book is Mere Natural Law: Originalism and the Anchoring Truths of the Constitution.