The Tyranny of the Majority
August 18, 2010
Two recent events have brought me back to my historical fascination with Constitutional history, and to my admiration for the foresight of at least some of the founders.
Specifically, I speak of the judicial ruling on gay marriage handed down by Judge Vaughn Walker, who struck down Proposition 8, the ban on gay marriage approved by California voters in November 2008. And I speak as well of the controversy over the Muslim community center that some wish to build within two blocks of the old World Trade Center site in New York City.
In both cases, the rights of a few are being trampled by what I believe to be the fear and intolerance of the many. In other words, these are living, breathing examples of what some have called “the tyranny of the majority,” what James Madison in Federalist 10 called “the violence of faction.”
Judge Walker’s decision was roundly criticized in conservative circles as being the perfect example of “liberal judicial activism.” Here was an openly gay judge (one, by the way, who was placed on the bench by that well-known liberal activist Ronald Reagan) thwarting “the will of the people.” Similarly, President Obama, who on Friday offered a strong defense of the right of Muslims to build their community center wherever they wish (and on Sunday offered a mealy-mouthed partial retreat from that brave stance), has been accused by the right of being “an elitist” who is “out of touch with mainstream Americans.” Obama’s Friday statement was called “professorial” (in a bad way, I guess). He was said to be too much of a Constitutional scholar to understand why people would be offended by having the community center so close to the site of the 9/11 attacks. Or maybe these are some of the same wack-jobs who still believe that he’s too much of a Muslim to understand. Whatever. (For the record, I am a Jewish New Yorker by birth. I grieved deeply over the 9/11 attacks on what I have always called “my city.” I have no problem with the Muslim community center being built in that area. It seems to me a wonderful statement on tolerance and unity and all that is supposed to be good about our nation.)
Before I say more, let me refer you to two sites. The first is the Huffington Post, where Bob Cesca today had a terrific piece on the mosque controversy. The second is a blog post from November 2008 that links the Prop. 8 vote to Federalist 10. The Lazy Slacker and I have never met, and I only discovered his piece after starting this one, but we’re in agreement on this.
Our Constitution was written by men who feared tyranny in all its many forms. They tried to keep the Presidency from becoming too powerful because they feared a despot. And they took great pains to keep simple majorities from determining all policy in the new Republic. They saw great danger to liberty in the formation of a true perfect Democracy. This is why the Constitution originally had Senators appointed by state legislatures and why it created the Electoral College to elect Presidents; direct elections were reserved for members of the House of Representatives. And this is why the Constitution’s authors made the third branch of government, the Judiciary, the one branch that (at the time) had no popularly elected constituency, a co-equal branch of government.
The founders recognized that factions — “a number of citizens, whether amounting to a majority or minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community” — were “a dangerous vice” that threatened a Republic’s survival. [Quotes from Federalist 10]
The fact of the matter is that there is no such thing as “the will of the people.” There is the will of the majority, and in our system of government that is often a sufficient basis for making important political and social determinations. At times, however, majority opinion infringes upon the rights of significant minority communities. Such is the case with respect to gay marriage and the construction of the New York City mosque. Judge Walker’s “activism” is in fact a fulfillment of his constitutional duty. The majority of California voters overstepped their bounds in November 2008. They indulged their own prejudice, sought to impose their views of morality and marriage on others, and so stripped gays of a right that ought to be theirs. In the same way, public opinion on the location of the Muslim center should not and cannot be allowed to deny New York’s Islamic community their right to build on the site in question. This is not Al Qaeda building the center, nor is it any group in any way associated with the 9/11 terrorists. These are people seeking to worship and gather as a community, under the leadership of an Islamic leader who worked extensively with that well known coddler of Muslim terrorists, George W. Bush. As Cesca points out in his article, if pundits and politicians on the right are really worried about the “hallowed ground” of 9/11, maybe they should look into blocking the construction of the huge underground mall planned for the exact site of the twin towers.
My point is this: As Americans we tend to believe that the will of the majority is always sacrosanct. It’s not, nor should it be. James Madison, Alexander Hamilton, and other architects of our Constitution understood this. Sometimes the rights of the minority trump the desires of the majority. Gay rights and tolerance for Islam are not popular causes in this country. But perhaps the greatest measure of a Republic is not how often it heeds the desires of the largest, loudest crowd, but how much care it takes in protecting the liberties of those groups that are smaller and quieter.