Wednesday, February 8, 2012

Majorities Do Not Suck

In a post at Kids Prefer Cheese, Mike Munger gets down on majoritarianism in general and as it applies to Proposition 8 in California. He writes:
Majorities suck. There is no reason to let majorities define morality for the rest of us. Even if I get Kos-trated, I'll still say it.

That's why we have the Bill of Rights. That's why we have the 14th Amendment, to ensure that the state governments, like the Feds, cannot use the tyranny of the majority to abuse individual rights. A key part of the 14th Amendment says: "no state shall ... deny to any person within its jurisdiction the equal protection of the laws."

That should have been the basis of the court decision blocking Prop 8 in California. Equal protection. The majority wanted Prop 8. The majority can go jump in the lake.
...Majorities suck. Why would anyone expect to find rectitude in the multitude?

And if we don't trust majorities to choose morality / religion / restrictions on speech for the rest of us, why would anyone trust voters to pick the right candidate? After taking these abuses, I'm warming to the Electoral College....

The US is not a democracy. We don't trust majorities, because of stupid stuff like slavery and the Alien and Sedition Act, and the Patriot Act, and Prop 8. There is nothing special about the majority will, it's just what most people happen to believe.
Munger's post expresses a pretty common libertarian suspicion of popular majorities. But, both that generic coutermajoritarian streak and its application to the case of Proposition 8 are misguided in some ways.

To start with the specific case of marriage equality, you have to take an awfully narrow view of what constitutes a majority to invoke a decision by the most popular branch of the federal government to invalidate a state law under the terms of an amendment to the federal constitution (which was created by a supermajority) to enforce a policy position which has majority support in the country as a whole.

More generally, all of the institutionalized protections of personal freedom and individual equality we have---including the Constitution, the Bill of Rights, and the 14th Amendment---were created by majorities and continue to enjoy majority support. Likewise, the institutions most directly charged with enforcing the boundaries of personal liberty and equality against encroachment enjoy extensive public support and, indeed, must enjoy majority support to persist.

So, when a transient majority makes a law contrary to the wishes of a persistent majority in favor of the principle of free speech, for example, and that law is invalidated by a court, it is, at best, an oversimplification to say that the majority has done something that "sucks." Yes, one majority made a sucky law, but another majority (and perhaps a majority with a great deal of overlap with the law-making majority) created and sustained the institutions that prevented the law from taking effect and supports the principle used to overturn the law. The good majority and the bad majority are both majorities, and the law infringing on free speech and the court decision overturning it are both, likewise, majoritarian.

When Munger writes, "The US is not a democracy. We don't trust majorities..." the "We" in the sentence is a majority. He is correct that we don't trust ourselves to act always in a manner consistent with our principles, so we precommit to making (or not making) some kinds of decisions. Ignoring the initial, principled majoritarian commitment and focussing only on the later, unprincipled majoritarian failing sells majorities short.

Likewise, jumping ship on majoritarian institutions just because they don't always work may be a cure worse than the disease. Munger writes "We don't trust majorities, because of stupid stuff like slavery and the Alien and Sedition Act, and the Patriot Act, and Prop 8." These are actually some pretty good examples of the perils of countermajoritarianism.
  • The importation of slaves was constitutionally protected until 1808 despite the existence of a national majority against the practice (that acted to ban further importation as soon as the relevant constitutional provision expired). Slavery in the South was protected politically by the Constitution's guarantee of equal state suffrage in the Senate and extended into the federal territories by a decision of the Supreme Court overturning a statute excluding slavery from them.
  • The Alien and Sedition Acts were the effort of a party in government to stem the tide of their own electoral demise. The Federalists did not enjoy the support of a majority of the electorate and the legislation was a naked attempt to limit the ability of the Democratic-Republicans to press their majoritarian advantage in national elections.
  • The Patriot Act was most prominently supported by a president who was first elected by a majority of the Electoral College despite his failure to secure a plurality of the national popular vote.
Munger is right, of course, that "There is nothing special about the majority will, it's just what most people happen to believe." There is, of course, nothing special about anyone or any other group's will, either. It's just what whoever happens to believe.

There is danger, of course, in democracy, but it is the same danger inherent in all government---that power will be abused to interfere with the essential rights of the people. By and large, though, the record of history indicates that democratic systems do a much better job of protecting those rights and liberties than other institutional arrangements. And, for nearly every instance I can think of a transient majority trampling the rights of a minority in this country, I can think of a case in which majorities have enhanced or extended the rights of minorities or a case in which countermajoritian institutions have enabled minorities to undermine the rights of majorities.

Majorities do not inherently suck, and a reflexive belief in their suckiness is probably just as wrong as a reflexive faith in their wisdom.

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