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.

5 Responses to “The Tyranny of the Majority”

  1. Rob Bachman said


    You never cease to amaze me with your thoughtful writing on important issues. I just wish more people like you could get the air time some on the “right” side of the issues seem to get. I heard two things on the news today that are also of interest on the mosque issue: 1) there already is a Muslim center about the same distance from “Ground Zero” and 2) there is a multi-denominational chapel in the section of the Pentagon that was rebuilt after 9/11 that hosts Muslim prayer sessions multiple times a week. Seems to me, if that is okay how can the Park51 not be?

    Another take on Prop 8 worth reading is Mark Morford at the San Francisco Chronicle ( A bit sarcastic but accurate.

  2. John Willis said

    Agreed on substance and sentiment: we are and should be a nation devoted to freedom of religion (and for some, freedom from religion). But it’s worth remembering that claims of “tyranny of the majority” can be taken too far — as in the case of John Calhoun, who made a political career (and a national catastrophe) from the notion.

  3. davidbcoe said

    Rob, thank you. That’s a very kind comment. I agree entirely with the points you raise about the Muslim center, and I appreciate the link to the Chronicle article, which I will check out.

    John, you’re right of course. As with all things, this can be taken too far. In some cases the majority voice must be heeded. Cooler heads and warmer hearts ought to prevail, but it’s not always easy to see that they do….

  4. MB said

    great post. The Framers advocated a “negative rights” view concerning the majority and government vs the more modern “positive rights” view advocated by statists and modern progressives who believe in collective action. The negative rights view is centrally based on the view that certain rights are inalienable and derived from God and/or nature which may not be infringed by the hand of man and that if one should oppose a collective imposition against your rights as a majority or authority (unjust king/governent) people could oppose with force if necessary and be free of any religious judgment via similarities to Augustin and Aquinas “just war” doctrines.

    In contrast, the concept of positiverights where the state can step in toadvance the liberty of individuals also has the double edgeand danger or the state becoming the sole arbiter and definer of what your liberties are or arentthus reserving the right to remove liberties if the collective imposes such restrictions through the political process. Thus this is why inalienable freedoms given by a creator/nature were essential to the Framers ideology.

    Here’s agreat discussion of the two. Note, when the author uses the term “liberalism” they mean in the concept of Western Liberalism which modern conservatism (aka classic liberalism I. E lassez fairer, natural rights, private property, limited t government not the GOP lol) and modern liberalism (progressivism or statism social justice ). Worth a read.

  5. MB said

    darn tablet.

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