The tyranny of the majority occurs when a majority of voters elect representatives that unjustly restrict the freedom of individuals in the minority

Outline

1. Tyranny of the Majority
2. Rights
3. Bill of Rights
4. Problem of Unenumerated Rights
5. Tyranny of the Misinformed Majority
   1. Some Framers had a dim view of the majority
   2. How the Framers sought to protect democracy from the majority
   3. The country evolved in a different direction
6. Madison’s Argument that the Tyranny of the Majority is Unlikely

Tyranny of the Majority

• Tyranny of the Majority in a nutshell:
  • A majority of the electorate believes that biracial sexual relations are immoral.  They elect representatives who enact legislation making interracial marriage a crime. A couple is found guilty of violating the law and sentenced to a year in prison

• In Federalist 51 James Madison distinguishes two threats a democracy must guard against:
  • “It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure.”
• The first is the tyranny of rulers.
• The second is the tyranny of the majority, where a majority of voters elect representatives that unjustly restrict the freedom of individuals in the minority, for example by enacting laws that
  • make interracial marriage a crime,
  • prohibit the sale of intoxicating liquors, or
  • make distributing contraceptives to unmarried men or women a felony.
• The majority may be motivated by differences in race, ethnicity, religion, politics, culture, moral codes, education, or wealth. The majority’s motivation may also result from misinformation, e.g. that one of the political parties wins elections by fraud.
• John Stuart Mill put the risk this way in On Liberty:
  • “The will of the people, moreover, practically means the will of the most numerous or the most active part of the people; the majority, or those who succeed in making themselves accepted as the majority; the people, consequently, may desire to oppress a part of their number; and precautions are as much needed against this as against any other abuse of power.”
• Or as some clever person said:
  • “Democracy is two wolves and a lamb voting on what they are going to have for lunch.”

Rights

• A democracy protects individuals from the tyranny of the majority by establishing individual rights.  The right to free speech, for example, protects individuals against a majority making it a crime to criticize the government.
  • A liberal democracy is a democracy that establishes constitutional rights.
• Rights protecting against the tyranny of the majority are negative rights.
  • A negative right to something (e.g. to keep and bear arms), or against something (e.g. unreasonable searches and seizures) prohibits the government from taking some sort of action (confiscating your guns or searching your home without a warrant).
  • A positive right to something (e.g. the right to a K-12 education) requires the government to take some kind of action (teach children).

Bill of Rights

• The First Amendment establishes rights of democratic participation, prohibiting laws that abridge
  • freedom of expression
  • freedom of the press, providing independent sources of information
  • the right of the people to associate and assemble
• The body of the Constitution sets forth other such rights:
  • The right to vote is implied by the use of the phrase “elected by the people.”
  • The right to run for and hold office is suggested by the necessary conditions set forth for holding various offices.

• Other amendments establish rights against the police power of the state, for example:
  • the right against unreasonable searches and seizures
  • the right to due process
  • the right to a fair trial
  • the right against excessive bail

• The Constitutional Convention curiously voted ten states to none not to include a bill of rights in the Constitution. 
• The arguments set forth against inclusion:
  • A bill of rights is unnecessary because
    • State constitutions already have bills of rights.
    • People have natural rights, which don’t need to be enumerated
    • Rights are obvious.  Noah Webster (who was not at the convention) suggested that any list of rights should include:
      • “that Congress shall never restrain any inhabitant from eating or drinking, at seasonable times, or prevent his lying on his left side, in a long winter’s night, or even on his back, when he is fatigued by lying on his right.” (Miracle at Philadelphia, page 246)
  • A bill of rights is impossible because
    • You can’t list all the rights of individuals.  Any bill of rights would necessarily be incomplete.
  • Alexander Hamilton, Federalist, no. 84, 575–81
    • “I go further, and affirm that bills of rights, in the sense and in the extent in which they are contended for, are not only unnecessary in the proposed constitution, but would even be dangerous. They would contain various exceptions to powers which are not granted; and on this very account, would afford a colourable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?”
      • [Suppose the Constitution were to guarantee a right to free speech. It sounds like Hamilton believes this would suggest that the federal government has an implied power to restrict free speech.]
• Other attendees regarded a bill of rights as essential: James Madison, Elbridge Gerry, George Mason, and Richard Henry Lee.  The last three refused to sign the Constitution on this account.

Problem of Unenumerated Rights

• The Ninth Amendment implies there are rights not enumerated in the Constitution
  • View Unenumerated Rights
• Unenumerated rights have to be established by the Supreme Court, for example:
  • the right of married and unmarried couples to use contraception
    • Griswold v. Connecticut (1965) and Eisenstadt v. Baird (1972)
  • the right of interracial couples to marry
    • Loving v. Virginia (1967)
  • the right of parents to send their children to private school
    • Pierce v. Society of Sisters (1925)
  • the right to same-sex sexual intimacy
    • Lawrence v. Texas (2003)
• But Supreme Court justices have a fundamental disagreement about what qualifies as an unenumerated right.
  • In Roe v Wade the justices ruled there was a constitutional right to privacy and abortion. 
  • In Dobbs v Jackson different justices found no such right, enabling the majorities of various state legislatures to prohibit abortion.
  • What used to be a decision made by an individual, protected by a right, is now a decision made by a democratically-elected majority.

Tyranny of the Misinformed Majority

Some Framers had a dim view of the majority

• From Madison’s Notes on the May 31 debate at the Constitutional Convention concerning whether the members of the House should be elected by the people or chosen by State Legislatures:
  • Roger Sherman opposed the election by the people, insisting that it ought to be by the State Legislatures. The people he said, immediately should have as little to do as may be about the Government. They want [lack] information and are constantly liable to be misled.
  • Elbridge Gerry said that the evils we experience flow from the excess of democracy. The people do not want [lack] virtue, but are the dupes of pretended patriots.
  • Pierce Butler thought an election by the people an impracticable mode.
• Alexander Hamilton, from his June 18 speech at the Convention, per Robert Yates’s Notes
  • All communities divide themselves into the few and the many. The first are the rich and well born, the other the mass of the people. The voice of the people has been said to be the voice of God; and however generally this maxim has been quoted and believed, it is not true in fact. The people are turbulent and changing; they seldom judge or determine right. Give therefore to the first class a distinct, permanent share in the government. They will check the unsteadiness of the second, and as they cannot receive any advantage by a change, they therefore will ever maintain good government.

How the Framers sought to protect democracy from the majority

1. By restricting suffrage:
   • Suffrage was restricted to white male landowners.
2. By minimizing direct popular vote:
   • The House was elected by the people.
     • “The House of Representatives shall be composed of members chosen every second year by the people of the several states.”
   • But the Senate was not.
     • “The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof, for six years; and each Senator shall have one vote.”
   • Neither were the President and Vice-President
     • “The President and Vice President are elected by electors, appointed by each state “in such Manner as the Legislature thereof may direct.“

The country evolved in a different direction

1. The country expanded suffrage over the centuries.
   • View Expansion of Suffrage
2. It also made electoral systems more democratic:
   • Senate
     • Seventeenth Amendment (1913) :The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote.
   • Electoral College
     • By 1832, only South Carolina selected electors by legislature vote.
     • Since 1864, electors in every state have been chosen based on the popular vote.
   • View Democratization of Electoral Systems
3. The country also adopted Jefferson’s idea of public education.
   • monticello.org/the-art-of-citizenship/the-role-of-education

Madison’s Argument that the Tyranny of the Majority is Unlikely

• In Federalist 51 Madison notes the importance of guarding against the tyranny of the majority:
  • “It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part.”
• He then says there are are only two means of protection.
  • “There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens as will render an unjust combination of a majority of the whole very improbable, if not impracticable.”
• The first he says provides only a “precarious security.
• The second he says makes the tyranny of the majority in the US highly unlikely because American society has so many “parts, interests, and classes of citizens.”
  • “The second method [of protecting against the tyranny of the majority] will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.”
  • “In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good.”
• Madison compares the United States to Rhode Island where, since the “parts, interests, and classes of citizens” are fewer, tyranny of the majority is more likely. For example (not Madison’s), a group dedicated to the prohibition of tattoos would have better luck with state governments than at the federal level. (What about a group that wants to prohibit intoxicating liquors?)
• Thus, for Madison in Federalist 51, the only way of guarding against the tyranny of the majority is his second method. Since “there are two methods,” the implication is that there’s no need for a Bill of Rights to protect against the majority.
  • See James Madison and the Bill of Rights at the Bill of Rights Institute