The price we pay for minority rule | #198 – May 29, 2022
Remarks on mass shootings, interest groups and the Senate filibuster
When should the people get what they want from their government? Surely a reasonable answer is: Most of the time. That is the position taken by most legal scholars and political theorists, and the one I explore in-depth in Strength in Numbers. Besides, I am sure few would argue the majority should get what it want none of the time, or that people should always get what the want.
The latter would constitute a “tyranny of the majority,” as the popular saying goes. And yet the quote, from Alexis de Tocqueville's 1835 book Democracy in America, has been used to justify a truly heinous analytical jump to the opposition of majority rule altogether. Modern Tocquevillians argue that, if the majority trends always toward the tyrannical, then the minority cannot be — and should therefore have the power vested in itself. In this formulation, the counter-majoritarian institutions of the United States — the Senate, the Electoral College, and arguable the House due to its current use of single-member districts to elect representatives — serve to perpetuate the real anti-majority Constitutional government of the United States.
This is so obviously wrong! When Alexis de Tocqueville that the “omnipotence of the majority in the United States" poses a tyrannical danger to the minority, and that it was “impious and detestable” to argue that “in matters of government the majority of a people has the right to do anything,” he was not arguing against the principle of majority rule. He was arguing in favor of checks and balances against the so-called “passions” and “democratic whims” of the country. His full quote is:
I regard as impious and detestable this maxim that in matters of government the majority of a people has the right to do anything, and yet I consider that the will of the majority is the origin of all powers. Do I contradict myself?
He goes on to explain that, no, he doesn’t contradict himself, he just wants protections for political minorities. Imagine what a true rule by the majority would look like:
When a man or a party suffers from an injustice in the United States, to whom do you want them to appeal? To public opinion? That is what forms the majority. To the legislative body? It represents the majority and blindly obeys it. To the executive power? It is named by the majority and serves it as a passive instrument. To the police? The police are nothing other than the majority under arms. To the jury? The jury is the majority vested with the right to deliver judgments. The judges themselves, in certain states, are elected by the majority. However iniquitous or unreasonable the measure that strikes you may be, you must therefore submit to it.
Tocqueville asks: In a hyper-democratized system, who or where could someone that has suffered at the hands of the majority turn? This question implies that the majority should treat the minority with dignity and respect as political equals; it should not trample on its rights or deprive it of political power.
Do not forget the context in which he writes. Contemporaneously, there is a reason Tocqueville is used predominantly by the agrarian landowners and southern slavers to justify the government they have set up. Those institutions protect them from the rule of the true majority of people in the country: those who are enslaved, don’t have land, or had other political-economic interests at heart. They get to argue that the majority is tyranny and the right of the minority — their de facto minority — ought to be protected.
Fast forward to the modern-day, and it’s clear that the new Constitutionally protected minority — constituted mainly by rural white voters and high-status suburban aristocrats — is not passively but willfully ignoring the balance Tocqueville attempts to strike in his original text. “The will of the majority is the origin of all powers,” he writes. You would scarcely find a member of the political right to admit to such a claim today. The hostile majority must be kept at bay at all costs.
The price of absolute majority rule in America — which, in my recollection, nobody is arguing for — is this firmly embedded in our political culture. Yet few see to consider the price of entrenched minority rule.
This week, 19 children and two adults were slaughtered by a local 18-year-old man possessing two AR-15-style rifles and over 1,000 rounds of ammo in Uvalde Texas. Thirteen others were injured. The massacre happened 10 days after nearly a dozen people were killed — using a similar weapon as the Uvalde shooter — in an ethno-nationalist, xenophobic attack in Buffalo, New York.
I want to take a moment to wonder, as Tocqueville did nearly 187 years ago, what recourse the families of those victims have today. To whom do they appeal? To public opinion? The public already supports bans on assault-style weapons.
What about the legislative body? The Senate has voted once in the last decade on a modest gun-rights bill, and it failed because of the legislative filibuster. After the 2013 Sandy Hook Elementary School shooting in Connecticut, the Senate voted on a bill to impose background checks on all gun sales. If you assign half of the state’s population to each of its senators and count up votes in favor and against, then the 55 senators who supported the bill represented 194 million Americans. The 45 who voted against it represented 118 million people. Because of the Senate’s filibuster rule, which requires the backing of 60 senators to move legislation to a vote, the 118 million (or 38% of the population) prevailed.
What about the House? An assault-weapons ban would have a much higher chance of passing the more proportional and responsive body. Yet even there, because of the overweighting of gun rights activists in GOP primaries, no Republicans support such measures. And because of assured death by Senate filibuster, most proposals never make it to a vote even when Democrats control the majority.
What about the executive power? Well, President Obama supported rather ambitious (in the context of the US) gun-control measures after shootings in 2013 and 2015. That never made a difference in government outputs. What about the police? Well, they did nothing in Uvalde — and may have made things worth it. To the judiciary? Because of Senate control over Supreme Court nominations, the Court today is a tool of the minority, not the majority. It looks set to expand gun rights in rulings expected over the next few weeks.
The faction protecting citizens’ access to deadly weapons is thus an agent of the minority to which the majority has little recourse. This seems as tyrannical to me as anything Tocqueville or his modern acolytes imagine. In fact, it is worse; the minority today has managed, by way of Constitutional counter-majoritarian institutions, to make it the policy of the US and most state governments that an individual’s access to firearms is worth the price we now pay ritually as a society: the murder of innocent children.
. . .
What are we to do?
In James Madison’s famous Federalist No. 10, he writes that one of the numerous advantages of a well-constructed nation is “its tendency to break and control the violence of faction.” He writes that the “friends of popular governments never finds himself so much alarmed for their character and fate, as when he contemplates their propensity to this dangerous vice.” The country must be protected, in Madison’s words, from those citizens “who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or the permanent and aggregate interests of the community.”
What is the solution? For a small group of people, he writes, it ought to be legislative action:
“If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution.”
James Madison wrote all of this before the Senate invented the legislative filibuster. Without it, the rational majority of citizens may have a chance to enact more reasonable restrictions on gun ownership in the United States. In turn, our society may not have to accept the ritual sacrifice to our gun-God Moloch of thousands of children every year.
Opponents of reforms for gun safety may be alarmed at the prospect of the majority restricting their future purchase of an ArmaLite rifle. They should imagine that the roles are reversed: that an oppressive 38% of the population is holding them hostage via controlling the requisite 40 votes in the Senate to block legislative action. Would you not want the chance to pass a law remedying such a transgression against the will of the majority? To, in Madison’s words, exercise your rights under the republican principle — the lex majoris partis, or rule of the majority?
Maybe 60% of Americans support bans on the manufacture and sale of assault weapons. More support raising the age to buy a gun to 21, as is the national rule for the purchase of handguns. Even more, support expanding background checks for all purchases and closing the 3-day loophole that allowed a shooter in Charleston, South Carolina in 2015 to obtain a gun despite a criminal history and murder nine black Americans in their house of worship.
To me, it seems like there is so much that could be done under slightly different rules. The thing we want to know is whether a 10 or 20% change in the probability that the majority gets what it wants on the average issue — from, say, 40% to 60% — would also have a significant effect in the probability of significant gun control. It is reasonable to expect Congress would almost certainly pass something in response to the Uvalde massacre if the filibuster magically disappeared tomorrow
Now, to be clear, I am not agnostic to the role that interest groups and party primaries play in enabling fans of AR-15s to get what they want from Republican politicians. I have written several posts about how reforming single-member districts and party primaries may pave the way for more meaningful reforms.
But, at least for today, let’s focus on the Senate filibuster for what it now so evidently has become: A violent violation of the republican principle of majority rule that is at least partially responsible for the deaths of 19 children. If our society deems that an unacceptable price to pay for gun rights — as any healthy, well-ordered and properly governed society should — we ought to demand the Senate change its outdated and minoritarian rules and make appropriate changes before it is, yet again, too late.
Talk to you all next week.
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