Majoritarianism vs. Civil Rights

There was an interesting article in Salon today considering Antonin Scalia’s dissenting opinion in the recent “gay marriage” decision. Scalia essentially argued that majority rule is the essence of democracy and that this decision undermines that essence. As Nicolas Buccola (Salon) points out, Scalia thus engenders a rather limited view of democracy, based solely on majoritarianism. Is that what the founding fathers intended? Self-governance based solely on what 51 percent want? That position takes us back to the fundamental problem with Utilitarianism pointed out in 19^th century debates – namely that 51 percent of the population could vote 49 percent slaves. As Thomas Jefferson noted when arguing that the constitution presented to him in France was “not worth the paper it was written on,” civil rights are an essential feature of a true democracy. We need to protect ourselves from the tyranny of the minority, through regular elections, the three branches of government, separation of powers, checks and balances, the veto and the like, but we must also be wary of the tyranny of the majority.

This has been the constant struggle in the United States. Democracy as an ideal versus democracy as an imperfect form of associated living. And civil liberties and civil rights are at the foundation of that careful balancing act. Slavery, women’s rights, affirmative action, the New Deal, the Great Society, Progressivism and all the other attempts to expand freedom came against the tide of that tyranny of the majority. And the courts and Congress are the place where that battle has always been fought. Majority rule has always been as dangerous a game as dictatorship and plutocracy, with the many as apt to oppress the few as the few to oppress the many. The freedoms promised in our founding documents are not based solely or even predominantly on freedom from (negative liberty) but also on freedom to (positive liberty). We thus need to protect the rights and freedoms of the minority against the oppressive power of not only the elites but the majority itself.

This to me is at the heart of the fundamental problem with conservatism today. It argues that government is the problem, standing in the way of true freedom. Yet who is the promoter of true freedom? Is it the market? Is it rationality? Is it majority rule? None of these provide true freedom to anyone. From economics and political science to psychology and cognitive science, we have found that rationality and markets do not work in creating a more perfect union – in fact it is only when both are regulated by government and consider each human life as inherently valuable that true freedom emerges. The Supreme Court has too often chosen the freedom of corporations and big business at the expense of the people in recent years, as have conservatives in general. We must demand that freedom and protection, struggling against both the tyranny of the minority and majority. The DOMA decision was a small step in the right direction, but much more is still to be done.