Nelson is a retired attorney and served as an associate justice of the Montana Supreme Court from 1993 through 2012.
What is more American than majority rule — the principle that 50.1 percent carries the day when decisions affecting all of us are made? The majority wins, and the minority has to accept, even if not graciously, the decision of the greater number. That’s how decisions are made in this country. Right?
Not necessarily!
In their recent book, “The Tyranny of the Minority,” authors Steven Levitsky and Daniel Ziblat dissect the majority-rules rule and show it to be, in many cases, more fiction than fact. Often our political system, our fundamental rights, and our democracy are held hostage and fettered by a minority-rules rule that not only has been institutionalized but, in certain instances, originated in the Constitution itself.
To summarize is to do an injustice to the thorough and enlightening analysis that the authors bring to this subject. But, it’s important that we — the majority — at least have a working understanding of what is driving the dysfunctional, ineffective, and toxic three-ring circus that characterizes our federal and state politics — and that is propelling our country out of democracy and into authoritarianism and fascism.
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Levitsky and Ziblatt discuss at length a number of counter-majoritarian institutions that fetter majority rule and which substitute minority rule in its place.
These counter-majoritarian institutions include:
- The Bill of Rights, which unambiguously protects individual liberties against the whims of temporary majorities. Yet, many of these rights have remained ill-defined and unevenly protected for much of American history. Consider abortion — protected as a federal constitutional right for 50 years, only to be disavowed by Supreme Court partisan ideologues and put in the hands of state partisans. Conservative Christian legislatures enacted a wave of draconian laws out of step with nearly 70 percent of Americans who support reproductive choice. Indeed, religious freedom has become a super-right that serves to support discrimination (against LGBTQIA+ people) and minority white, Christian nationalism (about 20 percent).
- The Supreme Court (and other federal courts), with justices and judges appointed for life. They are accountable to no one, yet, for multiple generations, exercise the power of judicial review to block majority-backed laws that do not threaten democracy.
- Federalism, often viewed as a bulwark against dangerous national majorities. But for much of American history federalism has permitted state and local governments to egregiously violate fundamental rights. For example, the right to vote is subverted and suppressed by state and local laws and gerrymandering favoring one political party.
- The bicameral Congress. Two different bodies (the House and the Senate) are required to pass legislation — a frequently demonstrated impossibility when different parties control each chamber and where one party is controlled by a minority.
- The Senate. Severely malapportioned, the Senate provides over-representation of small-population states at the expense of populous states, thus diluting the votes of the citizens of the latter.
- The filibuster. Legislative demigods, with axes to grind or personal ideologies to promote, are empowered to block majoritarian legislation and thereby frustrate majority rule.
- The Electoral College. A historical artifact, it is opposed by nearly 60 percent of Americans because it permits the election of presidents who have lost — often by huge margins — the popular, majority vote.
- Supermajority requirements for reforming the Constitution. That would include disposing of the Electoral College and enacting the Equal Rights Amendment.
Again, this is a very short summary of the authors’ lengthy discussion; the book is a good read.
Change is necessary to protect the ability of the majority of We the People to protect our fundamental rights and our democracy, and to prevent our spiraling journey into authoritarianism and fascism led by a powerful, well-funded minority of politicians.
Much of this change requires reforming anti-majoritarian provisions and institutions enshrined in the Constitution itself. While that’s a hard sell, we need to start.
Majoritarian democracy, or tyranny of the minority. It’s our choice to make.
