From an Associated Press report:
On the issue of Iraqi inmate abuse at the hands of U.S. military personnel, Kennedy said the Iraqi judges "innately knew, instinctively knew how concerned we were. They also knew that we can't really comment because we are actually in the legal system where we have review of military court-martials. They also knew we represent a process that is open, that recognizes that human fallibility is the reason we have democracy."(Emphasis added, link via Althouse)
Justice Kennedy appears to be working off the happy-happy-joy-joy definition of "democracy," in which the particular checks and balances, Constitution and republican form of government that originated in American liberal democracy are embedded into majority rule. This is troubling, because as we strive to spread democracy throughout the world, we must be aware of its limitations and the necessity of constraining it.
The Founders, of course, saw human fallibility as precisely the reason to limit the reach of majority rule. Kennedy himself, as a justice of the United States Supreme Court, is a member of one of the most undemocratic institutions in the nation (the "kritarchy," so to speak). An unelected federal judiciary was mandated by the Founders because they feared the passions of the mob, and although their fear was driven partially by elitism, it nonetheless has proven to be wise.
History before 1789, and even more after it, has shown that people are delighted to oppress one another whenever possible, and easily do so under the banner of majority rule. Hitler initially came to power through elections; at first, Communists could plausibly claim the support of the Russian people. Authoritarian regimes still claim to have elections, however farcical: China, Cuba and Saddam Hussein's Iraq all hold/ held them.
What Kennedy likely meant by saying "human fallibility is the reason we have democracy" is that the American model of government recognizes the truth in the cliche "Power corrupts." It therefore attempts to distribute power amongst different branches and levels of governments and between the people and their representatives. Congress holds hearings on the executive branch's responsibility for the military's conduct; the Supreme Court will rule on whether the president can continue to detain "enemy combatants" without trial at Guantanamo Bay.
My concern about Kennedy's blithe use of the term "democracy" stems from the associations Americans put on the word, and reports about what it means outside the United States. As Fred Siegel notes, "Most Americans assume that democracy, liberalism, and capitalism are not only a natural trio but mutually reinforcing. [...] But historically -- and in much of the world today -- these elements are in tension with one another."
Yale Law professor Amy Chua's book World On Fire: How Exporting Free Market Democracy Breeds Ethnic Hatred and Global Instability specifically highlights the tension between democracy and capitalism, but she recognizes the tension between liberalism and democracy as well. Chua concludes a recent essay on Iraq thus: "[E]ven today, democracy in the West means much more than unrestrained majority rule. It includes protection for minorities and property, constitutionalism and human rights. A lot more is needed than just shipping out ballot boxes."
Moreover, in some regions, particularly the Middle East, democracy frequently carries a connotation of excessive permissibility. Some members of traditionalist societies fear what government by The People will look like, and are wary of American democracy because in their minds it is somehow tied to crass American culture. Their strongest image association with democracy is not Thomas Jefferson or the Constitution, but Britney Spears.
Still, democracy remains a worthy ideal. But it requires modification, both literally and grammatically; a "liberal democracy," a "constitutional democracy." Mere majority rule, as the Founders knew, often exposes the most fallible side of humans.