Democracy is more or less accurately described as “rule by the majority.” The drafters of our Constitutional scheme of government were concerned that a majority could become despotic and trample upon the rights and interests of minorities. We have seen ongoing example of this phenomenon throughout American history, particularly in the area of race relations. American law in many states denied basic civil rights to persons based on the color of their skin - the majority races tyrannizing the minority races. Public referendums enacting bars to same sex marriage would also seem to fall into this category.
There is ample evidence that our founders’ concerns over the potential for “tyranny by the majority,” were not animated by a desire to protect the kinds of minorities that history has since borne out to be the victims of these injustices. Their concern was for potential oppression of the numerically inferior but vitally important commercial interests of the nation. Shays’ Rebellion in Massachusetts caused our founders to fear that mass public uprisings and a legislative appetite for popular policies could thwart commercial interests and stifle the development of a nation.
Whether intended or not, in our Constitutional scheme, the courts have become the havens for oppressed minorities seeking relief from an overzealous oppressive majority. As Judge Richard Posner wrote in his Federal Appeals Court opinion striking down same-sex marriage bans in Indiana and Wisconsin, “Minorities trampled on by thedemocratic process have recourse to the courts; the recourse is called constitutional law.”
That background brings us to consideration of the Supreme Court’s decision in Citizen’s United v. FEC. Laws enacted with the support of the majority limited the amount of money that corporations could spend on political election campaigns. Was this Shays’ Rebellion all over again? Was this not oppression of our nation’s vital economic interest by a self-serving and greedy majority? The court rescued the victimized corporations by declaring such restrictions constitutional. As Senate minority lead Mitch McConnell stated when he thought no one would catch him, the court had simply “level[led] the playing field for corporate speech.” Oh, those poor oppressed corporations!
In Congress now, Senate Democrats have proposed a constitutional amendment that would undo Citizens United and allow the federal and state governments to regulate corporate monetary influence in campaigns. As is clear from this NPR report, the amendment has overwhelming public and bi-partisan support outside of Congress. Yet, there is absolutely no chance that Congress will pass it.
When our Founders sought to protect economic interests from the political influence of the masses, they were concerned that commerce and the national economy would be stifled, financially strangling the new nation in its infancy. The modern protectors of corporate interests from public sentiment seek to preserve the power of money – not to advance national economies and international trade –but to influence elections. Many of those who seek to protect this corporate influence often purport to embrace the ideals of the founders for their political ideology. Somehow, I don’t think that preserving the influence of the affluent in elections was a founding ideal.
Here are some questions for our students:
What is the nature of this complex and complicated institution of democratic law-making? Is the Supreme Court protecting huge multi-billion dollar corporations from oppression by the massed majority? Is this the kind of “tyranny by the majority” that concerned our founders? Is the majority always right? What should be the role of public opinion in law-making? What should be the role of unlimited money in elections? How does that affect public policy as expressed in law?
Did Daniel Shays actually have the right idea in the first place?
Tyranny by the Majority: