“Many Americans believe there’s something not quite right about majority rule — something threatening, something dangerous. It just feels wrong.
We might be comfortable with decision-making by majorities at our P.T.A. meetings or when deciding on the theme for the next vacation Bible school, but we’re uneasy with the prospect when it comes to our politics. And our political lexicon is stocked with phrases and aphorisms that highlight the danger of majoritarian systems and even rebuke the concept outright.
There are the usual warnings about the “tyranny of the majority”; there is the quip, commonly misattributed to Benjamin Franklin, that democracy is “two wolves and a lamb, voting on what to have for lunch”; and there is the oft-heard assertion — and I’ll admit a personal bête noire — that the United States is a “republic, not a democracy” and that democracy would be the ruin of American liberty. We are taught to imagine ourselves as potentially being at the awful mercy of most of our fellow citizens.
Our collective suspicion of majority rule rests on the legitimate observation that a majority can be as tyrannical as any despot. As Alexis de Tocqueville wrote, “When I see the right and the ability to do everything granted to any power whatsoever, whether it is called people or king, democracy or aristocracy, where it is exercised in a monarchy or in a republic, I say: there is the seed of tyranny, and I seek to go live under other laws.”
Americans take for granted the idea that our counter-majoritarian Constitution — deliberately written to constrain majorities and keep them from acting outright — has, in fact, preserved the rights and liberties of the people against the tyranny of majority rule, and that any greater majoritarianism would threaten that freedom.
Well, what if that’s not true? Yes, majorities acting through our representative institutions have been overbearing and yes, the Supreme Court has occasionally protected the rights of vulnerable minorities, as well as those of the people at large. But there have been just as many, if not more, examples of the reverse: of majorities safeguarding the rights of vulnerable minorities and of our counter-majoritarian institutions freeing assorted bullies and bosses to violate them.
I’ve written about some of these episodes before (and I’m hardly the only person to have drawn attention to them): how the court gutted both the Reconstruction amendments to the Constitution and the laws written to secure the lives of Black Americans, free and freed, from discrimination, violence and exploitation.
If allowed to stand in full, the Civil Rights Act of 1875 — passed by only the third U.S. Congress to have Black members, who were elected in some of the first truly free elections in the South — would have outlawed discrimination in public accommodations like railroads, steamboats, hotels and theaters and prohibited jury exclusion on the basis of race. But the court, in an 1883 opinion, decided that neither the 13th nor the 14th Amendment gave Congress the power to outlaw racial discrimination by private individuals.
The advent of Jim Crow, similarly, had less to do in the beginning with a nefarious majority of voters rushing to the polls to subjugate their Black neighbors than with a long campaign of violence meant to neutralize Black voters and intimidate their white allies. The men who pioneered Jim Crow in Mississippi, for example, were by no means a majority, nor did they represent one in a state where a large part of the public was Black. As the historian C. Vann Woodward summarized it in “The Strange Career of Jim Crow,” “In spite of the ultimate success of disfranchisement, the movement met with stout resistance and succeeded in some states by narrow margins or the use of fraud.”
There was, however, a majority vote to protect the rights of voters in the South. But that vote — the vote to pass the 1890 Federal Elections Bill, which would have empowered the national government to supervise elections in the former Confederate states — failed to overcome a Senate filibuster.
We cannot know how American history would have unfolded in the absence of our counter-majoritarian institutions. But the example of Reconstruction and its aftermath suggests that if majorities had been able to act, unimpeded, to protect the rights of Black Americans, it might have been a little less tragic than what we experienced instead.
It is an insight we can apply to the present. It’s not the national majority that threatens the right to vote or the right to bodily autonomy or that wants to strip transgender Americans of their right to exist in civil society (on that last point, 64 percent of Americans, according to the Pew Research Center, support laws or policies that would “protect transgender people from discrimination in jobs, housing and public spaces”). If it were up to majorities of Americans — and if, more important, the American political system more easily allowed majorities to express their will — then Congress would have already strengthened the Voting Rights Act, codified abortion rights into law and protected the civil rights of L.G.B.T.Q. Americans. Even the legislative victories most Americans rightfully admire — like the Civil Rights Act of 1964 — were only possible with a supermajority of lawmakers assembled in the wake of a presidential assassination.
If it were up to the national majority, American democracy would most likely be in a stronger place, not the least because Donald Trump might not have become president. Our folk beliefs about American government notwithstanding, the much-vaunted guardrails and endlessly invoked norms of our political system have not secured our democracy as much as they’ve facilitated the efforts of those who would degrade and undermine it.
Majority rule is not perfect but rule by a narrow, reactionary minority — what we face in the absence of serious political reform — is far worse. And much of our fear of majorities, the legacy of a founding generation that sought to restrain the power of ordinary people, is unfounded. It is not just that rule of the majority is, as Abraham Lincoln said, “the only true sovereign of a free people,” it is also the only sovereign that has reliably worked to protect those people from the deprivations of hierarchy and exploitation.
If majoritarian democracy, even at its most shackled, is a better safeguard against tyranny and abuse than our minoritarian institutions, then imagine how we might fare if we let majoritarian democracy actually take root in this country. The liberty of would-be masters might suffer. The liberty of ordinary people, on the other hand, might flourish.“