We are all aware that democracy is not a modern invention.  It was characteristic of many city-states in the ancient world.  Athens, for instance, had a flourishing democracy in the 5th and 4th centuries B.C., until the independence of the city disappeared in the emerging age of empires.  Rome had a “mixed” constitution in which democracy was an important element until the republic vanished, to be replaced by monarchy in the first century B.C., the age of Caesar and Augustus. 

We moderns didn’t create democracy.  However, beginning with the American Founding Fathers, we created and sustained democracy in large societies such as the USA and many European countries.  I say we have “sustained” it.  This is true up to the present moment.  But how long will it remain true?  The oldest of these large modern democracies is the United States, and our democracy dates back only to the generation following our anti-monarchical War of Independence, not quite 250 years.

An Athenian living in the age of Demosthenes (4th century B.C.) might have said, “We Athenians have sustained our democracy for more than a century now.  Hopefully it will last forever.”  Alas, it died at approximately the same moment that Demosthenes, the last great democrat, died (322 B.C.). 

One of the tremendous weaknesses of ancient democracies — a weakness that we moderns, and we Americans especially, should pay great attention to — was their bad practice of politicizing their judicial systems.  Politician X wasn’t content to defeat his opponent at the polls.  No, he wanted to prosecute him, drive him into exile, impose ruinous fines on him, put him to death.

The most famous instance of this in Athens was the prosecution of Socrates.  Following its defeat by Sparta in the Peloponnesian War, Athens was briefly ruled by “Thirty Tyrants,” an oligarchical, anti-democratic clique.  But democrats soon rose up and overthrew the oligarchy, re-establishing the democracy.  A few years later, some ardent democrats prosecuted Socrates, seeking his death.

Socrates was not himself a politician.  He said that his “voice” or “sign” told him not to be a politician.  Nonetheless, he had many friends and acquaintances among politicians, including anti-democratic politicians.  And he was known to be a critic of democracy, which, by giving power to average men, gave power to men who (in his opinion) were intellectually and morally deficient.  Socrates also had a low opinion of oligarchs, who (in his opinion) were so stupid and wicked as to place great value on wealth. 

But the prosecutors of Socrates figured that, since he was an anti-democrat, he must be pro-oligarch; there was no third possibility.  And so, with the help of a jury they could rely on, they did him in.

In Rome, Cicero, when consul, suppressed the Cataline conspiracy by putting the conspirators to death without a trial.  He did this on the advice of the Senate.  Strictly speaking, these executions were illegal, since Roman law, read literally, guaranteed that no citizen could be put to death without first being tried and convicted.  But an honored custom allowed, in emergency situations, that a criminal might be executed without trial — provided the Senate passed the so-called “ultimate decree” ordering his death.  In executing the conspirators without trial, then, Cicero was doing something that, while technically illegal, was generally thought to be right. 

Cicero boasted that he was the savior of his country.  He would tell us, if he could, that what he did in violating the letter of the law was like what Abraham Lincoln did when he illegally suspended habeas corpus at the beginning of the Civil War.

A few years later, Roman political winds shifted, and Publius Clodius — a man who hated Cicero, a hatred Cicero cordially reciprocated — initiated a prosecution of Cicero for the “illegal” execution of the Cataline conspirators.  Faced with this, and faced too with the prospect of being tried before a highly partisan jury, Cicero did the prudent thing.  Unlike Socrates, who disliked leaving Athens, Cicero left Rome for a while, going into voluntary exile for a few years and practicing his Greek until the political winds shifted again, which they did.  He returned home and never went on trial — although he was eventually murdered by another of his political foes, Mark Antony.

Here in the USA today, we are witnessing another great — and in my opinion phenomenally dangerous — politicization of the judicial process.  I refer to the “vast left-wing conspiracy” (if I may borrow and modify a phrase made famous by Hillary Clinton) to use the courts of our land to send Donald Trump to prison and keep him from getting elected president in 2024.  The anti-Trump conspirators are using both criminal and civil courts, and they are using federal and state and even county courts.  (To date, they are not using any court at The Hague.)  With hardly any exceptions, they want him tried in jurisdictions where voters are overwhelmingly anti-Trump and where, therefore, there is a good chance that juries will have a strong anti-Trump prejudice.

This conspiracy also includes not just prosecutors and civil plaintiffs, but a vociferous cheering section made up of journalistic reporters and commentators, both print and electronic, who assure the public on a daily basis, indeed an hourly basis, that all the judicial attacks on Trump are fully warranted.  The conspirators hate Trump, and they are acting in accordance with the old maxim “all’s fair in love and war.”

Somebody may object that the word “conspiracy” is not quite right, since the word implies that there is a centralized command behind all these “let’s get Trump” suits and prosecutions.  While it is possible that there is such a command, this has not yet been proven.  So I cheerfully waive the word “conspiracy.”  Let’s say it is a quasi-conspiracy.

The politicization of any judicial system, ancient or modern, is a loud alarm bell indicating that democracy may be starting to crumble.

Image via Pxhere.