The Majority Is Always Right

By Trub Okkil

On Opposite Day, we do our best to argue in service of a position that, under normal circumstances, we argue against. Coke people might sing the praises of Pepsi, Cat people might talk about why Dogs make for superior pets, Political Types might put forward the position that is usually held by their opponents. After all, *ANYONE* can beat up a strawman. Here is the kickoff post for the symposium. Here is a list of all the posts so far.

Democracy is the mode of government in which the people govern themselves. There is no other way to measure the popular will other than to conduct periodic elections. A wide range of options exist in terms of how these elections are held – opposing or multiple candidates, slates designated by parties, yes-or-no votes on particular questions of proposed law – but the important thing is that it is the people who vote and express their preferences.

Certainly it is the case that the minority loses. Such is the case in every election, every choice. There are winners and there are losers. The minority in any given election always has the option of trying again the next time around. As a majority’s favored policy is implemented, it often reveals flaws and consequences unintended or underestimated. Those moderate voters may be persuaded through experience to change their minds.

It is for that reason that the concept of “individual rights” is misguided, and leads us to a bad place where our laws become illegitimate and our true government becomes arrogant and disconnected from its citizenry. Walk with me a little bit to understand where this path leads, and why it is not only not nearly so frightening as you think it is, but legitimating of the government and our system of laws — and therefore desirable.

Irrational voting does exist, and it would be foolish to pretend otherwise. But it is neither possible nor productive to determine which voters vote for which reasons. What seems a rational justification for a policy, partisan, or personal preference to you may seem completely frivolous and subjective to me. What matters is that as voters, you and I are equals.

Madison wrote in the Federalist that the danger of such majoritarian-heavy thinking is that the “rights” of the minority will be trod upon, and the resulting society will be unfair. With all due respect to the esteemed Founding Father, he got this wrong. The minority has no rights against the majority. Those “rights” do not exist, even for individuals.

As it turns out, in the American constitutional system, individuals do not actually enjoy checks against sufficiently large majorities. Certain governmental actions require supermajorities before they can take effect. But with a sufficiently large majority, nothing is impossible under the American constitution. Including kings. If two-thirds of Congress, and the legislatures of three-quarters of the States, collectively decide that a king is better than a President and a Congress, then that’s what will happen. This is unlikely, of course, but if that many elected officials are looking favorably at monarchy, you can bet this is reflective of a powerful strain of pro-monarchical sentiment in the public as a whole.

The majority is a check against itself. The majority imposes its own limits on its own actions; it exercises self-restraint. But truly, there are no limits on a majority’s power in a democracy.

In our constitutional scheme as presently imagined, there is a presumption that any law passed by a legislature is valid, but that there are limits imposed upon the power of the legislature by the Constitution in order to protect individual rights. This is conceptually incorrect on its face, and leads to a notion that individuals are somehow set in an adversarial posture against the state.

The state is not the enemy of the minority, or the individual. The state is the amalgamation of all individuals in the citizenry. It cannot be the enemy of the minority, or the individual, any more than a human body can be an enemy of its own finger. Sometimes the finger is made to endure discomfort, yes, but in nearly every imaginable instance, it is so for the greater good of the body.

The Constitution sets forth limits imposed by a supermajority on future permutations of itself. A supermajority may subsequently remove those limits on its power should it wish to do so. As William Rehnquist famously wrote in a memo of law for Justice Jackson, “Ultimately, it is the majority who dictate to the minority what its rights are.”

If anything, the ability of a supermajority to remove those limits should be relaxed; it should not take as strong a supermajority as it does to change the law even in a situation involving “fundamental rights.” As we have seen, “fundamental rights” is a chimera. A “fundamental right” is a caution left by the majority for itself to not take a particular action without careful thought and the formation of substantial consensus.

We know, for instance, that even under the present muddled minoritocracy that prevails in our current legal paradigm, so-called “fundamental rights” are not absolute. Putatively free speech may be limited if it falls into particular categories, determined largely by content. Defamation, for instance, or disclosure of trade secrets. Why these kinds of speech and not others? Because the majority has already deemed them to be unworthy of deference and liberty from regulation.

The majority is not yet ready to say “pure political speech” (whatever that is) may be restricted as an overt matter, but again, we find that certain “political” statements are met with profound negative reactions from all segments of society – officials holding power, courts, the media, citizens in general.

While people will agree in general with the abstract statement that political speech is absolute, the number of people who will in practice happily restrain themselves from regulating, controlling, editing, or censoring speech they truly dislike is low. Who among us would not recoil with horror at a person flying a Nazi flag, wishing nothing more than for it to vanish? Yet flying a flag with a swastika is no less a political statement than flying one with an elephant or a donkey or a more familiar and honored pattern of stars and stripes. So too, of course, is burning such a flag. Should the majority wish to punish American flag-burning but to encourage Nazi flag-burning is only natural and appropriate. How does display of a Nazi flag make us better off than if it were censored? Those who insist upon “individual rights” say that the content of the flag is irrelevant. But clearly it is not, at least not to the majority.

In the majoritarian system I espouse, what role is there for courts? I should say that application of the generalized law to particular instances is more than enough of a task. We craft our executives with enforcing the laws and courts with adjudicating them. When we speak of a system which has a division of powers, we should assume those words mean what they say and divide powers. The ‘checks and balances’ are checks, yes, but they ought not to be understood to be blending of powers between different governmental institutions.

We restrict rights to contract. In all but four counties in Nevada, I may not legally hire a prostitute who is willing to exchange sex for money with me. Nor, outside of Colorado, may I purchase marijuana for my recreational use; I must go through the fiction of having a medical reason to obtain the stuff, and then I must be in the right state and comply with its bureaucracy, and even then I must still evade Federal law enforcement. Why? Because the majority wishes it to be so. Majorities in isolated areas experiment with these things, but as of yet their experiments have not yet produced results sufficiently useful or desirable that the majority as a whole will go along with them. It should be thus.

The pronouncements of the majority should be given the weight that they assign to themselves for the same reason that they are law: the majority says it is so and in a democracy, the majority rules. If a majority says “only a supermajority may subsequently change this thing,” then so be it, because that is what the majority has said should be. If “this thing,” whatever it might be, is needful of changing, we must and can trust in the majority to change it. If it is questionable whether it truly is needful of changing, then the majority’s prior caution and insurance that a particularly important rule not be changed lightly should be heeded – precisely because the majority took care that it be so.

Or, consider same-sex marriage. Is there a “fundamental right” to marry – anyone? Same sex or opposite? No, of course not. The state must participate in the creation of a marriage. It’s not a “right,” it’s something the state does because the majority tells it to. Marriage is a creature of law and it is subject to law. All sorts of laws: tax laws, property laws, childrearing laws, disclosure laws, I could go on. Law, in turn, is created by the majority. The law points out all sorts of arbitrary restrictions on marriage other than limiting it to opposite-sex couples; we limit marriage away from incestuous relations, polygamous relations, relations involving children or those with diminished mental capacity, and so on. Are there reasons that this be so?

We might construct some and call them “principled,” but in fact none of them really are. All of them are to significant degrees arbitrary.

SSM advocates like to refer to racial restrictions on marriage, and point to judicial abolition of those barriers. All well and good, but really, wasn’t popular support for those laws already well-eroded by the time of Loving v. Virginia? There was a hue and cry from some quarters when anti-miscegenation laws were repealed, but the truth is, supporters of such laws were by then in the minority and the Court simply jumped ahead of where the majority was going anyway. When put to the popular test, anti-miscegenation laws were found wanting. So too do we see that SSM advocates are now, after many years of political effort, beginning to persuade majorities in places like New York, Maine, and Washington to come around to their vision of things. This is democracy in action, and it’s a beautiful thing.

Compare this to other judicial lawmaking like abortion, bussing, and campaign finance reform. What massive popular resistance to judicial lawmaking these areas have engendered! And why? Because the Court stepped into an area where political consensus did not exist, where “rights” were not well-established because the majority hadn’t worked out all the problems with them yet. Some of these problems are hard and some individuals’ problems run against the majority’s preferences. But if we do not reach social consensus, we do not truly solve our problems ourselves. And as with bussing and abortion, judicial solutions delegitimize the law and politicize the issue.

I’ve little doubt that in California, had those SSM advocates advanced a “repeal Prop. 8” initiative on California’s November 2012 ballot, it would’ve passed. That’s just a guess, of course, because there has been no such initiative, but does anyone doubt the vote would have been close? But instead, SSM advocates all over the state wait for nine people, none of whom have ever been elected to anything, and only one of whom was ever even a Californian, to decide for them whether they should have same-sex marriage in the state. How much better (not to mention faster) if they had simply decided it for themselves?

This is insanity. This is not self-government. It is government by a council of mandarins.

It ought to be about persuasion. Persuasion is what democracy is all about. The error of using countermajoritarian means to implement particular “rights” is not only that we have no way of knowing what these rights are, but there is no claim to popular acceptance, no claim to consensus or general approval. To say that an individual ought to be able to stand athwart the rest of society and say “Stop!” is not only bold, it is illegitimate. It is to suggest, nay to insist, that something other than the people govern the people.

At the end of the day, it’s a god that countermajoritarians point to and I find it particularly odd that my friend Burt, an avowed atheist, seems to worship this god of “individual rights.” Whence arises these rights, if not from some immanent, numenous Other? It can only, ultimately, be a divine will that somehow certain things are elevated above the rough-and-tumble of politics and the to-and-fro of the opinion of one’s peers. To claim the right to say “This is above the majority, this is beyond the ability of the majority to regulate” is to arrogate knowledge of that divine will to oneself, or worse yet, to assume that divine status. We elevate our judges to this divine level when we ask them to obstruct the will of a majority. Ask a judge yourself if you doubt the impropriety of this: she will tell you she is not divine and she will disclaim such special knowledge of the transcendent. No, for the law there can be no claim to knowledge of the divine, only the knowledge of the majority. Leave divination to the clerics, Burt.

If there is a Transcendent Law out there, this “brooding omnipresence in the sky,” then it is utterly unknowable. We can take guesses as to what it might look like here and there but everyone, both atheist and believer alike, must ultimately claim modesty as to its true shape. And we should not pretend that our law emulates this unknowable amorphity.

What we can know is that we have compacted, whether explicitly or implicitly, with the rest of our fellow-citizens to jointly govern ourselves. This compact and the process created to fulfill it are the reason our laws are worthy of respect – we wrote them ourselves. They were not imposed upon us. We agreed to be governed by them. That is why they are legitimate.

That is why we must move our law and our way of thinking about it away from the idea of inchoate and malleable “individual rights” and understand what it truly is to be democratically self-governing. Stop judicial lawmaking and stop chasing the phantom of “individual rights.” We live in a democracy, let us govern it like one.