The case for majoritarianism

It's based on a simple premise: what I believe may not be right. The person who disagrees with me may have a point there. I'll believe very strongly in what I think is right, but I'm not going to be so narrow-minded as to think that no reasonable person could disagree with me.

If my beliefs are the product of a fallible imperfect person like myself and someone disagrees with me, then I think that it's inappropriate to forever prevent views opposing mine from being implemented. Instead, we should fight our differences out in the public forum, take a vote, and let the majority win.

Otherwise, if someone prevails in Court on the argument that not only do they disagree with a statute, but that it's unconstitutional, then a democratic majority can never pass it in the future even if they want to (short of a constitutional amendment, which is so hard in practice as to be impractical). And if there's actually a possibility that the opponent of a statute is wrong, my basic premise, then that would be a bad thing.

To bring up a completely random example, I think that eminent domain is frequently abused, and I'm against its use in, say, Brooklyn when it's for a basketball stadium and I likely would feel the same about an economic development boondoggle by the City of New London. There are people who disagree with me. A lot of them are in public office because of democratic elections. Now, I could engage them on the merits and hope to win my argument, organize opponents and so forth, and maybe support an opposing candidate in the next election -- not to mention being more involved from the outset so that a politician doesn't spring this on me. Or I could sidestep this process, find a sympathetic plaintiff and litigate the issue in front of a judge (or panel of judges) who are not elected and can't be fired or voted out of office. Rather than engage the merits of the issue at hand, we can parse the vague phrases in a document with onerous amendment provisions written by long-dead people.

One of the most tiresome cliches I hear in response to a pro-majoritarian argument is "tyranny of the majority." One of the clever things about this cliche is the presumption that what the majority does amounts to "tyranny", complete with the archaic diction. It doesn't address my first premise behind majoritarianism: tyranny can easily be in the eye of the beholder. People may disagree with your definition of tyranny. There are a lot of libertarians out there who think that progressive taxation is tyranny. I don't happen to think so. I think that the new bankruptcy bill Congress passed is unjust (using the word "tyranny" makes me feel like I should substitute "you" with "ye"). Lots of people disagree with me. Deciding whose definition of tyranny prevails is what democracy is about sometimes.

The Kelo case demonstrates the inadequacy of the word "tyranny". I feel bad for the people who are losing their homes to an economic development plan, but it's cold comfort to people who lose their homes to make way for expressways, which are uncontroversially allowed by eminent domain. The thundering fervor of the word "tyranny" seems ill-suited to define the plight of people who only lose their homes for economic development plans rather than roads.

Usually, people just use the word "tyranny" in this context to characterize something that they disagree with. If a government body is going to do something I disagree with -- something I feel is unjust, if you want to use stronger language, I would rather it be the government body that is accountable to my vote, and the government body whose action can be overturned by a simple majority next time around. Not only are courts unaccountable to me if they do something I disagree with, but there's a legal doctrine called "stare decisis" (Latin for "let the decision stand") which makes it really hard to change in the future.

Objections about tyranny persist, however, and one familiar way to sidestep my premise that reasonable people can disagree about an issue is to bring up an issue on which reasonable people cannot disagree, like slavery (used here, but I've heard it before).

First let me say that I am not an absolutist, and there are times when it may be appropriate for courts to overturn democratic majorities. But those times are very limited and I place a heavy presumption in favor of democratic majorities.

But it's hard to make the case against majoritarianism with propositions that there are a consensus about today. It's too hard to spin out into a situation that has actual relevance to today's world. Can you really imagine something with majority support today which is so obviously unreasonable as slavery? My premise for majoritarianism is that reasonable people can disagree about things, and supporting eminent domain for New London's economic development plan is not in the same universe as slavery on this score. As sympathetic as I may feel for the New London homeowners, it trivializes slavery to make such a comparison.

And that brings me to the most compelling case against majoritarianism: the position of abused minorities -- and no, I have no property owners in mind. I'm thinking about African-Americans primarily, American Indians, lesbians and gays, immigrants, and women with unwanted pregnancies. (Although all women, pregnant or not, have been subjected to injustice in American history, they've usually been about even with men numerically or more populous, so institutionalized sexism is a case of the tyranny of the minority and not part of this example). With clear, historical examples of abuse and oppression, I don't blame minorities who seek nonmajoritarian avenues for redress, like the Courts.

It's not easy for me to reconcile the legitimate historical experiences of minorities with important principles of majoritarianism I've expressed here. As I said before, I'm not an absolutist, and there are instances where it may be appropriate for courts to overturn democratic results. However, even these issues demonstrate that courts are not the best institution to obtain justice.

Granted, there was a time of about twenty years when courts were actually sympathetic with African-Americans, poor people, and women with unwanted pregnancies, from 1954 (when Brown v. Board of Education was decided) through 1973 (Roe v. Wade). For the remaining 196 years of the constitutional republic, courts have a pretty poor record. When issues of concern to African-Americans have gone up to the Supreme Court since 1973, they're usually brought by white people seeking to overturn affirmative action programs passed by legislatures or public universities with democratically elected regents. This puts courts back in their historic role of being able to dilute protections for African-Americans passed by democratic majorities, like they did in the late 1800s to democratically-passed Reconstruction amendments and federal civil rights statutes.

(I can't resist noting that libertarian property-rights advocates similar to the type comparing eminent domain to slavery today challenged the constitutionality of the public accommodations clauses of the Civil Rights Act of 1964, which was upheld by the thread of the commerce clause. Richard Epstein, the intellectual leader of the "constitution in exile" movement and a supporter of use of the constitution to stop legislatures from a variety of economic regulation, continues to oppose all civil rights legislation as it interferes with private property and choice).

Gay rights is probably the issue where the clash between the courts and democratic legislatures is the least settled. Some judges around the country have overturned democratic legislatures' definitions of opposite-sex marriage, and the Supreme Court found unconstitutional Colorado's statute against local laws protecting gays from discrimination and Texas's statute criminalizing sodomy. On the substantive issue, I'm a gay marriage extremist. I'm just about at that point where I find it hard to envision a reasonable opposition to gay marriage, so maybe I should support court intervention in this instance. The biggest stumbling block is political, not principled. I don't think courts are going to order gay marriage and that will be the end of the debate. Roe v. Wade really settled the whole abortion debate once and for all, didn't it? Yeesh. I think that gay and lesbian rights will end up stronger at the end of the day when full equality passes democratic majorities. There are already anti-discrimination statutes in many states and municipalities, and I think it's likely that several states will have gay marriage before this decade is over (in New York, Elliott Spitzer, the odds-on favorite to be the next governor, supports gay marriage).

In short, in limited circumstances I would support going to the Courts, but I'm very biased against it.

Let's all go to the polls, to blogs, to whatever and fight these issues out. Let's not foreclose the process by having courts declare that governments can't do things when certain parties lose in the democratic process.