Tyranny of the Majority or the Minority?

Nathan Newman nathan at newman.org
Fri May 18 14:02:21 PDT 2001

----- Original Message ----- From: LeoCasey at aol.com
>It strikes me that Nathan, in his complete hostility to what he
>calls "judicial activism" and now in his denunciations of the Supreme Court
>as the most reactionary institution in American political history [at which
>point, I have to ask myself, more than a pre-Civil War Senate dominated by
>slaveowning Southerners?] is implicitly adopting a position on behalf of
>legislative supremacy, a system of complete parliamentary rule. His
>is, at the very least, strongly distrustful of a written constitution that
>binds the power of the legislature

As I noted, the legislative branch in the US has been problematic precisely because of racism and the suppression of the black vote- the US Senate was conservative before the Civil War, became progressive in the Reconstruction period, then with the suppression of the Southern black vote, it again moved to the Right.

However, my main point is that however conservative the Senate may be, it is unlikely to approve Supreme Court nominees more progressive on average than its own members and will actually put in people who are systematically more rightwing because judges will be elites without even a shred of accountability to working class voters.

I will admit that I have become much less ennamored of a judicially-enforced Constitution from when I was younger and law school just accellerated that process as I watched all sorts of eager judge-wannabees talking about all the ways they would overrule the democratic process to save people from the supposed stupidity of the voters. This is an empirical issue- here at Yale I am at ground central for the supply of federal clerks writing opinions and those who will become judges in the future. And the thought of these people having that power horrifies me. And I am not talking just about the cosnervative folks wanting to write law and economics into the Constitution, but the liberals who see their own social preferences as natural law. The contempt for average people, whether in juries or in legislatures, that runs through the legal elite is truly awe-inspiring.

>In this, Nathan's position runs counter to the trend in parliamentary
>as the Canadians have adopted a Bill of Rights, interpreted by a supreme
>court with the power of judicial review, upon the repatriation of their
>Constitution ...and even the British, the mother of all
>parliamentary democracies, have discussed more and more the possibility of
>some similar arrangement.

I could note the rise of Constitutionalism has coincided with the rise of neoliberalism, as we see libertarianism in economics, speech and social rights embedded in constitutions beyond the modification of voters.

>Although there is little question that the framers of the US Constitution
>concerned about the tyranny of the majority framed in terms of
>classes -- the majority of farmers and artisans versus merchants and slave
>plantation oweners -- it can also be just as easily framed in terms of the
>classic issue of American power, the racial oppression of people of African
>descent, indigenous Americans and of other people of color. It can also be
>framed in terms of issues of sexual minorities, such as gay men and
>and in terms of political minorities.

Yet I take the more Madisonian view that a sufficiently large polity of pluralistic groups where no one group is likely to easily constitute itself as a permanent self-conscious majority is the best defense of minority rights. One reason I support strong national government is for that reason, since it is local governments that are the most self-consciously homogenous on racial and religious grounds, while at the national level, there is far less simple majority dominance. Where pluralism functions, minorities make up for fewer numbers with passion- they will trade off votes on issues of prime concern to other sub-groups in exchange for support of their prime interests.

Now, this does not always deliver the goods for minorities, but the case is not that it is perfect but that it is better than depending on a judicial elite which in many cases may just reinforce the social prejudices of a narrow elite from where judges are often recruited.

I can point to endless examples where the Supreme Court made decisions to protect the interests of the economic elite in defiance of majority will, but there are almost none where it has systematically protected minorities in defiance of NATIONAL majority opinion. Blacks won in Brown and women won in the early 70s because the Supreme Court was reflecting majority views against various localistic prejudices. Gays have lost in the Supreme Court because gays have not won full majority support in national popular opinion (although it's getting close, as shown by passage of hate crimes legislation in Texas). About the only place where the Courts have systematically defied national majority sentiment is in its anti-religion decisions, reflecting the elite prejudice against the religious beliefs of the majority population.

The theory of constitutionalism has great appeal, but the practice in the United States has been mostly a failure at best and a reactionary tyranny at worst - and more commonly.

-- Nathan Newman

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