From: LeoCasey <LeoCasey-AT-aol.com>
Date: Wed, 18 Mar 1998 00:24:18 EST
Subject: M-TH: Democracy


In a message dated 98-03-17 23:37:32 EST, James H. writes:

<< I was amused to see Guinier utilise the concept of Tyranny of the
 Majority. If you had read her more closely you will see that the concept
 is from Madison, and the minority rights that he sought to protect were
 not those of an under-privileged black minority, but a privileged,
 because propertied white minority. Guinier is being cute when she self-
 consciously draws on the conservative Madison, but her cuteness
 overtakes her: the concept is just conservative, and a reading of white
 supremacy as an argument *against* majoritarian democracy is an error.
 Rather the experience civil rights shows the value of democracy - even
 majoritarian democracy.
 
 The point is that in a democracy, you must win the case for minority
 rights with the majority. What Madison (and Guinier) wanted was that the
 state should enshrine those rights against the will of the people. I
 answer this point in my article 'The Tyranny of the Majority' (LM
 February, 1996).
 
 Incidentally, if you want to know, Madison, in coining the phrase was
 drawing on Edmund Burke's characterisation of the French revolution as
 'the despotism of the multitude'. Karl Marx took the same phrase and
 turned it around: Dictatorship of the proletariat.
  >>

A little bit of knowledge can be a very dangerous thing in the hands of some
people. James H. knows that Madison was one of the first, leading
theoreticians of the concept of a "tyranny of the majority" and that Lani
Guinier employs the concept, using it as the title of her book, in addressing
the problems of African-American representation in democratic American
political structures. So the intervening two centuries of history of the
concept and its application is wiped out -- no de Tocqueville (who actually
coined the phrase, and knew well that its main applicability lay with
insidious racism that was at the heart of American government and society), no
Jim Crow segregation, no Plessy v. Ferguson, no civil rights movement and so
on  -- and Guinier becomes a latter-day spokesman for Madison's conservatism.
Any limits on the power and choice of the majority are, in James H.'s view,
conservative abridgements of democracy.

At issue here is the very nature of democracy. James H's insistence that it is
defined by majority rule alone fits a definition that reaches its highest
point of clarity in the work of the German legal scholar and Nazi collaborator
Carl Schmitt, 

Since modern democracy is by definition a state of popular sovereignty,
Schmitt contends, it must be understood as "an attempt to realize an identity
of governed and governing."(CPD, 15.) The people must be politically one, a
singular identity, and that status is realized through its identification with
the state. As a category, the people exists only in the public sphere, Schmitt
declares, and there it follows the political logic of closure and
homogeneity.(CPD, 16.)
For Schmitt, then, the very concept of democracy rests logically upon a series
of identities -- not only an "identity between state and people," but also
the identity of subject and sovereign, the identity of subject and object of
state authority, the identity of the people with their representatives in
parliament, the identity of the state and the current voting population, the
identity of the state and law, and finally an identity of the quantitative
(the numerical majority or unanimity) with the qualitative (the justice of the
laws).(CPD, 26.)

And "(i)f democratic identity is taken seriously, then in an emergency, no
other constitutional institution can withstand the sole criterion of the
people's will, however it is expressed."(CPD, 15.)  


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