From: LeoCasey <LeoCasey-AT-aol.com>
Date: Thu, 19 Mar 1998 07:34:47 EST
Subject: M-TH: Democracy and the Tyranny of the Majority


Justin has placed the debate between James H. and myself over the "tyranny of
the majority" into two intellectual contexts in which they are generally seen
-- first, the contrast between democracies organized around parliamentary
systems of legislative supremacy vs. systems in which the powers of government
are separated and divided among various branches and levels, and second,
debates within liberal democracy over the best way to secure the rights of
minorities. There is value in what Justin says: certainly the institutional
restraints on the development of tyrannies of the majority and the abuses of
the rights of minorities (political as well as cultural -- people of color,
women, gay and lesbian people) are lesser in systems of legislative supremacy,
and the contrast between systems of legislative supremacy and separation of
powers has been a classic debate of liberal democracy. But I think there is
another way to formulate this same question which takes it beyond the
particular provinces of liberal democracy -- the question of the very
conception of democracy.

I find James H. peculiarly, even wildly, inconsistent in the conception of
democracy and the political philosophy he puts forward -- at once, extremely
libertarian and individualistic in his discussion of negative rights and of
the need to restrain government from any positive interventions in the economy
and society, and now, an extreme partisan of the Rousseauian 'general will',
willing to dispose of any minority rights which can not gain the consent of
the majority. I do not know how the two can be reconciled. While it is
certainly true that the protection of individual and minority rights in a
democratic regime requires that there be at least a popular acquiescence for
minority rights, this protection can certainly be institutionally organized,
such as through a constitutional guarantee of rights and an independent
judiciary with the power to enforce that guarantee, in ways that do not
require the unmediated support of the majority (as expressed in the legisltive
body) for every controversial manifestation of minority rights. These are
limits on the tyranny of the majority. Thus, the Supreme Court could strike
down de jure racial segregation in the southern United States in Brown v.
Board of Education despite the fact that there was clearly not a majority in
those states in favor of equality under the law for African-Americans; if one
had to rely upon convincing the majority of the people and legislatures of
those states to end racial segregation, we might well still be living with Jim
Crow -- witness the violent and prolonged popular resistance to the Brown
decision. Similarly, the Court could strike down laws restricting the right of
women to abortions in Roe v. Wade (how many state legislatures would have
repealled laws prohibiting abortions?) and state and national laws which,
reflecting the immediate popular consensus, made flag-burning a crime in Texas
v. Johnson. Of course, this system is by no means fool-proof: there is no way
to guarantee that the Court will muster the courage to act on its
responsibilities to protect minority rights, as it failed to do with interned
Japanese-Americans during WWII, or overcome its own participation in the
prejudices of the majority, as it failed to do in Bowers v. Hardwick when it
denied gay men and lesbians the same right to privacy in sexual matters that
it had previously accorded to heterosexuals.

While such restrictions on the right of the majority to rule can be restricted
on liberal grounds (ie, individual liberty grounds), they can also be
restricted on the grounds of what democratic rule requires. A purely
majoritarian conception of democracy, such as advocated by Rousseau, Carl
Schmitt and James H., reduces democracy to a set of procedures for majority
rule: so long as the majority decides on a particular course of action, it is
legitimate. By contrast, I would insist that democracy is a substantive as
well as a procedural concept. That is, democratic political philosophy is
simply not neutral with respect to its fundamental end: the establishment and
maintenance of a political society in which all citizens share in ruling. For
citizens to share in ruling, the political and governmental structures must
enable them to do so; further, they must be educated to attain the
dispositions and skills which make it possible for them to participate in
ruling a meaningful way. It follows logically that the denial of the rights
and duties of citizenship to some and the suppression of free inquiry and
expression among citizens are fundamentally anathema to democracy, even when
they are authorized by a particular majority at a particular time, since such
practices strike at the very core of a society in which all citizens share in
decision-making. To reformulate this issue in positive terms, democracy has as
integral components an equality principle (full rights and duties for all) and
a liberty principle (freedom of inquiry and expression). These principles may
not be subject to majority rule in a democracy.

Leo
 


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