The American System of Majority Rule
NOVEMBER 01, 1962 by EDMUND OPITZ
The Reverend Mr. Opitz is a member of the staff of the Foundation for Economic Education.
It is standard journalistic procedure to divide the world into two camps. The Soviet bloc comprises one camp, whose member nations are run along totalitarian lines. The non-Soviet bloc, by contrast, is called The Free World. The
Take a random sampling of our citizenry and ask them to explain what they mean when they declare that this is a free society. "
Furthermore, our political leaders are not selected from among a few aristocratic families; here anybody can run for political office, and most anybody can become President. And if The People do not like the government they chose in 1960, they need not revolt; all they have to do is convince a majority of voters to their way of thinking and they’ll get the government they want." The simple man in the street and the sophisticated reader of "liberal" weeklies may have little else in common, but they share a touching faith in the sovereignty of The People.
Now suppose I am not in sympathy with some part of the national government’s program—not so farfetched an assumption—and I utter some criticisms of it. I get a standardized reaction. The customary response is: "The People are entitled to get from government whatever a majority of them want: from schooling, to job insurance, to cheap electricity. Would you deny them these benefits? Most people favor social security, and under our system of government where The People are sovereign they should have it. Are you opposed to majority rule? Don’t you believe in democracy?"
The unspoken assumptions underlying these questions are somewhat as follows: "The voice of The People, expressing itself through majority opinion is, in a democratic society, the final determiner of policy, and the ultimate sanction for political conduct. A society is free to the extent that the majority will is not frustrated. This is what it means to live in a democracy." Such is the rationale for much of today’s politicking. Let us try to evaluate it in terms of American political theory and experience.
These assumptions—about the desirability of permitting majority will free rein—were not shared by the men who drafted the Constitution. To the contrary, these men worked overtime to devise ways of protecting society against the action of majorities. They knew that "The Majority" is a technical term in politics, customarily meaning "a minority on the make." If democracy is a system of government in which every citizen is equally represented, and where policy is determined by sampling majority opinion, then the Founding Fathers tried to circumvent "democracy"—in this sense—and succeeded.
A rather silly European Socialist, presumably with this in mind, referred to our Constitution as "very nearly a plot against the common people." The real intent of the document was quite the opposite: it was to protect the common people—which includes just about all of us—from political adventurers. Our forebears had experienced the tyranny of monarchs, but they had no intention of accepting a majoritarian tyranny in its place. "An elective despotism is not the government we fought for," wrote
The end they fought for was individual liberty within the framework of a moral and legal order, and to this end they created a number of antimajoritarian institutions. The Senate is one instance. One senator in my state of
Appointment of Senators
To emphasize further the undemocratic nature of the Senate, the Constitution provided that its members be appointed by the legislators of the various states, not elected by the voters. We amended the Constitution to change this procedure.
The Constitution declared that the President would not be chosen by mass vote. The legislature of each state was to determine the manner of choosing electors who, in turn, would meet and select a President. The idea was to insulate this office from the popular will.
And then there is the Supreme Court. Theoretically, a bill might have the unanimous support of the voters, be passed into law by the Congress, and then be thrown out by the Court on the grounds of unconstitutionality.
Additional examples might be cited, but enough has been said, I think, to indicate that the federal republic designed by the Founding Fathers is miles away from what the average American today understands by a democracy in which majority opinion rules directly and unfettered. It might be instructive to examine portions of our historical background in order to better understand this situation.
The people who adopted the Constitution as their organic law were well qualified to make it work: they knew political theory; they were experienced with colonial charters, compacts, and self-government; and their religion conduced to individual liberty. These qualifications have been largely lost among us—although they might be restored. But until a restoration occurs, we as a people will probably continue to resort to the expedient of "majority rule" to sanction any governmental action an actual minority of the voters wants.
One hundred and seventy-five years ago, in the spring of 1787, a body of delegates met in
The men who drafted our basic political document and set a new government in motion represented a people who were exceedingly alert intellectually and politically. There was a population of some three million along the Atlantic seaboard in the latter part of the eighteenth century, largely rural. But they were readers and thinkers, as well as farmers and artisans, as the following instances show. Blackstone’s famous Commentaries appeared between 1765 and 1769, and 2,500 copies sold in
Many colonists were at home in the realm of ideas, and thus were ready, when the time came, with a rationale for liberty based on an acquaintance with its literature as far back as Greece, Rome, and Israel.
A significant number of the colonists were learned in history and political theory, but Americans were not a bookish people; they were experienced in self-government and at home with charters and compacts. When the Founding Fathers sat down in
Chartered by the Crown
During the 1500′s, individual adventurers like Sir Walter Raleigh conducted colonizing efforts at private expense, but in the 1600′s companies were chartered by the English Crown to establish colonies and carry on trade. The famous East India Company was organized in 1600, and was probably the model on which the Virginia Charter of 1606 was framed. It was this Charter which created the
This fact has been noted by Charles A. Beard in his book, The Rise of American Civilization. Referring to the Virginia Company, Beard writes: "Like the State, it had a constitution, a charter issued by the Crown… like the State, it had a territorial basis, a grant of land often greater in area than a score of European principalities… it could make assessments, coin money, regulate trade, dispose of corporate property, collect taxes, manage a treasury, and provide for defense. Thus every essential element long afterward found in the government of the
These chartered companies were also missionary enterprises. The colonizers who came to these shores were Dissenters from the Established Church in
This "hardshell" aspect of Puritan and Separatist religion has no discernible political significance; history bears witness to hundreds of crusading faiths for which the adherents were willing to suffer and, upon occasion, to persecute. But there were two peculiarities of the Puritan religion which did have a direct bearing on American political theory and practice—its covenant theology and its congregational polity. Let me quote the words of a scholar, R. L. Perry, referring to the Mayflower Compact:
"The document represents the application to the affairs of civil government of the philosophy of the church covenant which was the basis of Puritan theology. This theology found in the Scriptures the right of men to associate and covenant to form a church and civil government and to choose their own officers to administer both religious and civil affairs. Each member of the congregation had a vote in the election of officers, and each congregation was considered as independent and autonomous of every other and not subject to the authority of any centralized church hierarchy."
Edmund Burke delivered his great speech on "Conciliation with the Colonies" in 1775. Speaking of the influence of the colonists’ religion on their will to resist he said: "Religion, always a principle of energy, in this new people is no way worn out or impaired; and their mode of professing it is also one main cause of this free spirit. The people are Protestants, and of that kind which is the most adverse to all implicit submission of mind and opinion. This is a persuasion not only favorable to liberty, but built upon it… the dissenting interests have sprung up in direct opposition to all the ordinary powers of the world, and could justify that opposition only on a strong claim to natural liberty. Their very existence depended on the powerful and unremitted assertion of that claim. 11 Protestantism, even the most co d and passive, is a sort of dissent
But the religion most prevalent in our northern colonies is a refinement on the principle of resistance: it is the dissidence of dissent, and the protestantism of the Protestant religion."
The Natural Law Concept
As a corollary of this religion the Founding Fathers posited a higher law—the Natural Law or the Moral Law—to which the laws of men ought to conform. Men might create statutes or legislation, but the Natural Law is discovered, not created; it is a law superior to the will of human governors, and legislation is just )r unjust as it conforms to or violates Natural Law. The Natural Law is largely unwritten, but t e down to earth parts of it are found in the Common Law, in "the idea of immemorial rights of Englishmen," and in the various charters written to implement these rights from Magna Carta on down.
So much for the men and the political ingredients at their fingertips. They were acquainted with political philosophy and experienced in the art of governing. Their Dissenter’s faith disposed them to individual liberty, and in the Natural Law they had a device to limit arbitrary rule. This was their equipment, and then they were given an opportunity, unique in history, to draw up the fundamental rules for a society in which men would be free. One of them, James Wilson, wrote: "The United States exhibit to the world the first instance, as far as we can learn, of a nation, unattacked by external force, unconvulsed by domestic insurrection, assembling voluntarily, deliberating fully, and deciding calmly, concerning that system of government under which they would wish that they and their posterity should live." The exuberant Patrick Henry went even further. Cried he: "We are, Sir, in a state of nature!"
What Shall Be Government’s Scope? and Who Shall Rule?
In short, these men were in a position unprecedented to ask and answer the two fundamental political questions. The primordial political question is: What shall be the extent of rule? or What is the proper scope of government in society? The second question is: Who shall rule? or What devices shall we employ to choose personnel? The answers of the Founding Fathers constitute a political breakthrough, a new departure in government.
The first question is basic: What shall be the extent of rule? Once we have answered this one properly, a workable device for choosing personnel is easy to find. Majority opinion, as determined by balloting, is one such device. But to use majority voting in order to determine the proper scope and boundaries of government is to confuse the categories. The answer our forebears gave to the question: What shall be the extent of rule? is that of classic Liberalism. It is the function of government, they said in effect, to act as an umpire who enforces the agreed upon rules. Let government administer justice among men and otherwise keep hands off; men will be free then to administer their own affairs. When government keeps the peace by curbing peace breakers, men may go freely about their productive and creative pursuits, cooperating and competing with one another as to each of them seems best.
In giving this sort of an answer, the Founding Fathers broke with a long and powerful European tradition. The alchemists had sought for a philosopher’s stone which would transmute lead into gold; but the thing which really haunted the mind of
The idea is an intriguing one and, judging by the record of history, it is irresistibly fascinating to most people. The idea is simple and easy to grasp, and there is a sort of
The Americans scrapped this machinery, lock, stock, and barrel. Government, they said in effect, is necessary in human society, but unless it is limited and kept under control, it is capable of doing great harm. And human nature is such that, if power situations are deliberately created, the worst men will gravitate toward them, and such good men as are given arbitrary power will tend to be corrupted by it. Therefore, keep government limited to the administration of justice and the defense of life and property and you deprive it of its propensity for evil. Each man will then be free in society to realize his highest potential.
Such, in briefest outline, was the early American answer to the primordial political question: What shall be the extent of rule?
Selection of Policemen
The second question has to do with the choice of personnel. Once you decide to limit government to policing functions, how do you go about selecting men for the jobs? Four such devices are available. The first is determination by bloodline: If your father is king, you’ll be king when he dies, and your son will rule in your place. The second is determination by lot—drawing straws—used for a considerable period in
The primary question, What shall be the extent of rule? can be answered or resolved on the basis of intellectual and moral criteria only—not by counting noses. No scientist would suggest that the validity of the germ theory of disease, for example, should be determined by an opinion poll; and similar considerations apply to disputed questions in history, psychology, mathematics, and elsewhere. There is no difference of opinion on this score; every scholar agrees that disputes in his field are to be settled by laboratory experiments, by field tests, or by reason and logic—in short, by weighing the relevant evidence.
The only exception to this rule is in this sector of political science. But even here, every scholar leaves himself a loophole. Ask theperson who tells us that majority rule should reign everywhere if he believes that the majority in this country has the right to decide for everyone what church we should all be forced to join. He will answer in the negative, and in disavowing this logical inference from his position he has implicitly admitted that majority rule should not be permitted to upset certain principles—the principle of religious liberty, in this instance. In so doing he also acknowledges, in sort of left-handed fashion, that majority rule is not itself a principle. Majority rule is a mere device, a means for accomplishing certain ends, but not others. So when someone asks, "Do you believe in majority rule?" we must render the question intelligible, as follows: "Do I believe in majority rule to do what?"
Our language contains many "imposter terms"—to use old Jeremy Bentham’s label—and the jargon of politics is particularly rich in examples. "The People" is one example of an imposter term. People obviously exist, but "The People" is a fiction introduced into a discussion to mislead. So whenever you hear anyone refer to "The People," put your hand on your wallet. Likewise, when someone sounds off about "The Public" or "The Majority." "The Majority," as mentioned earlier, is a politician’s or a "liberal’s" way of meaning "A Minority." A so-called majority is really a numerical minority manufactured and manipulated by a small group of determined and unscrupulous men. Majorities for or against this or that measure are often manufactured at will. This procedure goes on today and it has gone on for a long time. More than a century ago the Columbia University professor of political science, Francis Lieber, wrote: "Woe to the country in which political hypocrisy first calls the people almighty, then teaches that the voice of the people is divine, then pretends to take a mere clamor for the true voice of the people, and lastly gets up the desired clamor."
The philosopher, according to an old joke, is a blind man in a dark room looking for a black cat that isn’t there; the theologian, on the other hand, finds the cat! The people of
Respect for the Individual
The authors of the Constitution had a high regard for the individual citizen. He had, in their view, certain inherent rights derived from his Creator, which it was the function of government to respect and protect. When government was thus limited, it conformed to the Natural Law, those norms of liberty, equality, and justice which are part of the nature of things. But with the rise of skepticism as to the very existence of anything but man-made rules, another sanction had to be found to rationalize political might. Thus was majoritarianism invoked, and under its guise, things have been done to individuals which they would never have tolerated from any monarch. For the antithesis of majoritarianism is the principle of individual liberty, and to secure individual liberty our Constitution placed various checks on majority action.
The inclusion of such checks derives from the conviction that each man has certain inherent rights which it is the duty of government to secure, so that even as a minority of one he has immunities which no numerical majority may invade. No majority had the right, under our original system, to impose its religion on any minority, or impair its freedom of utterance or deprive it of property. But under the new dispensation "The Majority" is almighty. All it has to do is gain control of government and then it has a legal cloak behind which a minority of the nation uses the governmental machinery to work its will on the rest of the society. According to the theory of majority rule, the governmental machinery is always "up for grabs" for just such a purpose.
Limits to Majority Rule
Majority decision at the polls is an excellent way of choosing personnel for political office, but it is a violation of the moral law for the majority to vote away any man’s freedom. The majority may have the power to do this, but the right to this action it never has. But here we hit an obstacle, for in speaking of "the right" we have assumed the real existence of an independent moral principle, implying that something may be ethically right or ethically wrong whatever its measure of popular support—or lack of support. But this is the very concept which has fallen into general discard, even among convinced antimajoritarians. Some of these abandon the idea that majority support determines the ethical rightness of an act on the grounds that this is the kind of thing each individual decides for himself.
This implies that there are as many valid ideas of right as there are persons, and denies that there is any such thing as right per se. But if there is no right per se, it cannot be wrong for majorities to do as they please! If there are no norms or principles as part of the nature of things, then man-made assumptions are all we have to go on. Man-made assumptions are not self-operating; they must be made to operate by the weight of a sufficient number of people who want to make them work—just as a water wheel is turned by the weight and force of the water falling on it. Tomorrow, the contrary man-made assumptions can be made to work in just the same fashion, by the weight of majority opinion. Such a situation is unavoidable unless the universe exhibits a qualitative dimension, ethical in its own right.
Objective Standards of Morality
We do not adopt a free-wheeling attitude in questions of arithmetic. We do not, that is to say, advise every man to decide for himself what the answer to two plus two will be for him. This is because we take it for granted that the constitution of things is such that there is only one valid answer to two plus two; namely, four. And if the ethical dimension of existence is not so constituted that certain things are right and certain things are wrong per se, then let us frankly acknowledge the fact and give up the moral approach altogether. In which case, majoritarianism makes a modicum of sense.
Human beings, however, are called upon to make moral decisions just because they are human beings. But moral decisions can no more be made in the absence of ethical standards or norms than things can be weighed without such units as ounces and pounds. Large numbers of people have lost touch with principles; the old ethical standards have been discarded, and we attempt to makeshift without standards. So, desperately trying to find some basis for making moral decisions—as an alternative to the naked rule of arbitrary might—our contemporaries are driven to the expedient of majority rule.
But majority rule is not a moral principle, and the attempt to use it as such won’t work—any more than it would work to try to weigh things by the foot or yard or calculate length in terms of pounds. It is a waste of time to try to mix incompatibles, but it is a safe bet to assume that we’ll continue with this useless effort until we restore ethical norms and principles to their rightful place in our lives, and then proceed to build our social and political structures into conformity with them.
The Downward Road
It appears we are descending the ladder of human values. First we attack the morality of honest effort because it has reaped materialistic rewards. Second, we put aside the educational and spiritual values of doing well the little menial or unpleasant tasks that must be done. Third, we advance the false theory of entitlement regardless of how one has loafed and mismanaged personal affairs. The pages of history clearly point out that these are the roads to human deterioration.
Ralph E. Lyne,