[b](This opinion piece does not necessarily reflect the views of the poster.)[/b] [b]This piece is posted in two parts.[/b]
T[b]he Need for Formal and Informal Mechanisms to Prevent[/b][b]“Tyranny of the Majority” in Any Democratic Government[/b]
In any institution in which a majority of citizens or members can pass laws or rules that apply, not just to themselves, but to all members of the group, judgment is required to distinguish potential laws which are reasonable and fair from those which are tyrannical because they are unnecessary, unfair, and justifiably intolerable to the minority that opposed them. And formal mechanisms need to be in place, wherever feasible, to prevent tyrannical laws from being passed by those whose judgment in such matters might fail.
The founding fathers of the American republic were not unaware of this problem, and some of the provisions of the U.S. Constitution can be viewed as ways of addressing it even if that is not necessarily their expressed or realized intention. James Madison wrote in Federalist Paper 51: “It is of great importance in a republic not only to guard the society against the oppression of its rulers but to guard one part of the society against the injustice of the other part. If a majority be united by a common interest, the rights of the minority will be insecure.” Many of the features of the Constitutional organization of the Federal government are meant to keep any branch or department from attaining domination of the others, but in fulfilling that function, they also serve as a safeguard against any popular majority, as represented then by the House of Representatives (and now by the Senate and the House of Representatives in partnership), from being able to oppress other citizens. Again Madison from the same work: “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”
However, the Constitution did not solve the problem of majorities’ imposing tyrannical laws, or imposing unnecessary and unfair or unreasonable laws tyrannically without attending to the needs of the minority. (A case can be made that the American Civil War resulted because of that, and I will return to this point later.) And because the problem of the tyranny of the majority is still not resolved today, nor even generally understood, it needs to be addressed as much as ever.
Madison had thought that the greatest safeguard against the tyranny of the majority was the large number of sects and divergences of interests and opinions that divided people in ways that made it virtually impossible for coalitions to form stable majorities. While that is often the case, historical divisions have arisen over characteristics that have brought about numerical minorities which have been more than temporarily placed in that status. (The phrase often used is “permanent minorities”, but “permanent” is too strong because the problem is not that one is in a permanent minority, but that one is in a minority with no likely possibility to be in the majority in the near future or within even a few generations.) Race, ethnicity, color are such characteristics in many societies today, but there are philosophical and other kinds of minorities as well. Moreover, majorities in any legislature often merely impose their will on those numerical minorities with opposing philosophies for as long as they are able, which means at least one election cycle, if not many. In some of these cases, the minority viewpoint may be “represented” in the legislature, but it is not attended to by the majority, and is therefore not what might be called “effectively represented.”
Madison also noted the problem of a majority’s, in a sense oppressing itself by passing laws that are only as temporary as the passions and fashions that make them seem desirable. He wrote of the dangers of “mutable government” in Federalist Paper 62, and a small part of what he said is: “It will be of little avail to the people that laws are made by men of their own choice … if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule which is little known, and less fixed.” And he said, (Federalist Paper 63) “…an institution may be sometimes necessary as a defense to the people against their own temporary errors and delusions…. …there are particular moments in public affairs when the people, stimulated by some irregular passion or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind? What bitter anguish would not the people of Athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions? Popular liberty might then have escaped the indelible reproach of decreeing to the same citizens the hemlock on one day and statues on the next.”
I believe that Alexander Hamilton gave a hint to the solution of preventing tyranny of the majority in the last Federalist Paper (85), when he wrote, in a different context, “The intrinsic difficulty of governing thirteen states at any rate, independent of calculations upon an ordinary degree of public spirit and integrity will, in my opinion, constantly [i]impose[/i] on the national rulers the [i]necessity[/i]of a spirit of accommodation to the reasonable expectations of their constituents.”
Also, “Every Constitution for the United States must inevitably consist of a great variety of particulars in which thirteen independent States are to be accommodated in their interests or opinions of interest.” What I wish to argue here is that the founding fathers set up the government, via numerous mechanisms in the Constitution, in such a way that it was supposed to force, not compromise, but [b]accommodation[/b]of numerical minorities, in order to achieve majority rule, and that there were more obstacles preventing the tyranny of the majority in more important issues than in less important ones. The greater the obstacles meant, at least for Hamilton, the greater need for mutual accommodation. The electoral college is one such mechanism, but there are a great many more. I will describe and discuss them shortly.
What I mean by “accommodation” in the sense I am using it, as opposed to “compromise,” is that each side can get what it wants without having to give up anything important to it. In a compromise, each side often gives in, or gives up, something it wants in order to get something else. Or it does something it does not want to do in order to get something it does want. In accommodation of the sort I have in mind, no side has to give up anything of importance. Accommodation is about finding what is often referred to as “common ground” but in a sense that is perhaps different from how even that is usually meant. What I have in mind can perhaps best be described by example. Suppose a married couple is divided over whether to go out some evening; one of them wants the two of them to go somewhere together; the other does not want to go out at all. There are a number of solutions that might count as compromises, but those will not be as good as an accommodation. Compromises might be that from now on they take turns deciding and perhaps they flip a coin for this time, so that one of them gets to decide what they do this time and it is the other person’s turn to decide next time. Another compromise might be to go out for a little while — less than the one wants, but more, of course, than the other wants. Or they might decide to go out but to a quieter place or a closer place than the one partner wanted to. Or they might decide to go out tomorrow night even though the one partner did not want to go out either night. Those would all be compromises.
But suppose instead of making one of those sorts of compromises, they discuss the issue and the one who does not want to go out, in pleading his/her case, says, “I am just too exhausted to go out; it has been a really bad day.” Now it [b]might [/b]be that what would accommodate both of their needs or desires is the following: when the other partner hears the first say how tired s/he is, that partner responds “I’ll tell you what. Go lie down or go take a long bath or shower; and I’ll fix dinner and rub your neck a while if you are still awake. If you fall asleep, I’ll wake you when dinner is ready, and then after dinner if you still don’t feel like going out, we won’t.” If that works such that the tired person is no longer tired and no longer not in the mood to go out, then that will have been an accommodation. The needs or desires of both partners will have been accommodated because they were not really mutually exclusive in the way they sounded at the beginning. It was not that the one partner did not want to go out just because s/he did not want to, but it was that s/he did not want to go out while exhausted, enervated, or feeling bad.
There are civil and political issues that are very much like this, in that what seem to be mutually opposing positions are not really mutually opposing at all. Without desiring to trivialize or oversimplify the slavery issue in the middle of the 19thcentury in America, it seems that the abolitionists were focused primarily on the growing sense of immorality of slavery while for the slave states, the primary concerns were economic and social/political, with concern about infringement on states’ rights of self-determination in these areas. I presume that if the anti-slavery forces could have raised sufficient funds to buy all the slaves, transport them to the North, the West, or somewhere else, and set them free, and also made it profitable for former slave owners to hire workers to replace them at decent wages, the slave-owners would have willingly sold, and slavery in America would have ended. Whether former slaves would have been better off if that happened would have depended on how they could have adapted, how they would have been allowed to adapt, and how they would have been helped to adapt to such a dramatic change in their lives. But the point is that the North would have got what it wanted and the South would have got what it needed in order to give up slavery willingly.
It was not that slave states wanted slaves just in order to enslave people. It was that a whole economic and social/cultural system had been built up, with due complicity from the Federal government and from many businesses in the North, in a millennia-old context in which slavery unfortunately had been thought tolerable and justified, that would have placed great hardships on both blacks and whites in the South to try to change without help. Southern economics, white homes, and white culture had become dependent on slavery. And other than being “free” only in the sense of no longer being “owned”, blacks would not have been well off, and in fact were not well off, simply to be turned loose in the South — without education, without socialization, without reasonable and sensitive plans for their inclusion into culture, government, and economics– in a climate of prejudice, hate, and fear among well-armed, majority white people. Yet anti-slavery forces wanted to politically force an end to slavery without regard for the consequences of ending it that way.
It is no wonder that Southern states felt their legitimate interests were not being fairly represented (or were not likely to long continue to be fairly represented) in the Congress, even though they had, and would continue to have, their duly-elected share of representatives serving and speaking there. I believe that there is an ambiguity in the notion of “representation” in that it can either mean one’s position is able to be presented, or it can mean one’s position is actually taken into account and seriously and meaningfully considered when it is presented. When one is represented only in the former sense, generally one may as well not be represented at all. What is necessary is that people have representation in the latter sense.
(By the way, it is not that I am defending Southern states as such. Those states, while bemoaning their lack of effective representation and heeded voices in the Congress, certainly gave little concern to listening to and accommodating numerical minorities in their state and local communities. The victims of tyranny of majority at any level of government are just as often the perpetrators of it at other levels, or when the numerical numbers get turned.[url=http://4.hidemyass.com/ip-1/encoded/Oi8vY2l2aWx3YXJ0YWxrLmNvbQ%3D%3D][u][color=#0066cc](1)[/color][/u][/url])
Effective, heeded representation will happen naturally in those bodies comprised of sensitive, compassionate, and honorable members with discerning judgment who care about the needs of all people. There are not likely to be such bodies. Therefore mechanisms are necessary to prevent 51% of people from controlling 100% of the decisions in a democracy simply by having majority rule that allows them to win every vote without having ever to take into account the needs of the 49%. When those needs are intolerably and unreasonably ignored and thwarted, there is a tyranny of the majority.
So there are a great many safeguards (though not enough) built into the Constitution that can be seen as essentially trying to prevent that from happening, and that can be seen as attempts to ensure accommodation of minority positions and needs:
First, having two different houses of Congress, a Senate and a House of Representatives, places an obvious obstacle to simple majority rule. There are 435 Representatives and 100 Senators. If the founders had wanted simple majority rule with that number or proportion of total representatives, they would have set it up so there would currently be 535 members and just one chamber, and a majority vote of 268 would carry any measure. But with the membership being divided into two houses, with the Senate’s having 100 members, and needing a majority of them, that means that, simply from the standpoint of voting alone (that is, not by causing procedural delays in voting, etc.) 51 Senators can block the majority rule or majority tyranny of 485 others.
Hence, for a vote to pass, it needs not only to have majority support, but it needs to have the support of, in some sense, at least half the states, and thus it needs to have somewhat [i]widespread[/i]support. Moreover, because Senators are elected for six years instead of the two for which Representatives are elected, legislation must be judged more likely to appeal to citizens over time than simply to appease temporarily fashionable passions.
The bicameral Congress is also meant to be a protection for the rights of smaller states, since, presuming that Senators actually represent their states’ positions, a majority of states need to give their assent to any proposition, not just a majority of the U.S. citizens. The electoral college, though different now from the way it was originally established, still operates intentionally in opposition to majority rule in this same way. In a system of electing the President by mere simple majority, a candidate or party could win by appealing to 51% of the voters united by some particular characteristic. And while Madison was correct that it is not easy in a free society to find 51% with an overriding affiliation to some philosophy or set of ideological policies that affect favorably all the various aspects of their lives, still it can happen. It happens, so far in America as of this writing, with some regard to race, with some regard to religious affiliation, and with some regard to gender. It happens also, though in alternating cycles, with regard to what are currently deemed generally “conservative” versus “liberal” values. It also can happen with regard to demographics along age lines or along urban/rural lines. By requiring a candidate to get at least some widespread support across a set of divergent groups, and not just simple majority support, the electoral college serves as a partial safeguard against those who might be able to find and win over a majority group based on some simple or single characteristic. It is not foolproof as a safeguard in this way, but it is important, and sometimes formidable.
When my younger daughter was in sixth grade, she attended a new middle school that opened its first year with just two of the three grades it would subsequently have. It began with sixth and seventh grades and would from then on, have sixth, seventh, and eighth grades. They held a student council officer election in the spring of the school year for student government positions the following year. For some reason, there were far more seventh graders than sixth graders that year, and because they voted for “their own”, the seventh graders won all the officer positions. The sixth graders felt that was unfair but were told that was just how democracy worked. Well, it is not how American “democracy” (or at least [url=http://4.hidemyass.com/ip-1/encoded/Oi8vY2l2aWx3YXJ0YWxrLmNvbQ%3D%3D][u][color=#0066cc]American government[/color][/u][/url]) works, nor how it is supposed to work, regardless of the misconception. Had there been a mechanism, something like the electoral college system, whereby sixth and seventh grades were represented in a more equal way to make up for their unequal population numbers — a way that required the assent of some implicit coalition of both groups — either there would have been some sixth graders elected to the student council offices or at least some seventh graders might have been elected who were more acceptable to the sixth grade class. Potential seventh grade officers would at least have had to court some part of the sixth grade vote instead of being able to ignore it altogether. That is the purpose, or at least a feature, of devices such as a bicameral legislature or an electoral college.
The Constitution also gives a President veto power over even those majorities that might comprise both the House and the Senate, again thwarting majority rule where sufficient widespread support beyond the simple majority cannot be achieved. Congress can override the veto with a 2/3 majority, but a 2/3 majority, by just its nature alone, requires broader support in a diverse legislature than does a simple minority. Hence, the policy under consideration must have wider support and is not as likely to be tyrannical.
continued on next post -