The Individual and Majority Rule; R. Cooney

Can majority rule be reconciled with individual and minority rights? Mr. Cooney is a freelance writer in Reno, Nevada. Underlying these questions is the paradox of every government. Man in a state of nature has max imum .freedom limited only by his strength and ability to survive. For protection he establishes a government which, to endure, must limit his freedom. One against the other, liberty and se curity are in constant conflict. The dilemma becomes acute whenever the forces of safety and order out weigh those of freedom, when even the most trifling human activity is regulated by the State, or con versely, whenever the abuses of liberty bid fair to destroy society, when civil war - in Hobbes' phrase of "every man against every man" - or anarchy threatens. How to steer between the two extremes, tyranny and anarchy, how to con serve the State for its essential functions and an ultimate of lib erty, this is at the bottom of the controversy between the individ ual and maj ority rule.

661 662 THE FREEMAN November A majority taken collectively may be regarded as a being whose opinions, and most frequently whose interests, are opposed to those of an other being, which is styled a minor ity. If it be admitted that a man, possessing absolute power, may mis use that power by wrongdoing his adversaries, why should a majority not be liable to the same reproach? Men are not apt to change their char acters by agglomeration; nor does their patience in the presence of ob stacles increase with the conscious ness of their strength. And for these reasons I can never willingly invest any number of my fellow-creatures with that unlimited authority which I should refuse to anyone of them. This eloquent passage is taken from Alexis de Tocqueville's classic Democracy In America. In that work, the author speculated on, among other matters, the phe nomenon he called "the despotism of the majority," to which, he felt, popular government was uniquely prone. Tocqueville believed that the potentiality for a democratic tyranny was greater in the United States than anywhere else, for it was the major extant democracy.

Ironically, he saw in the very strength and stability of Ameri can democratic institutions, in its public opinion, its legislatures, its executive branch, even its courts, the seeds of oppression. These were not a danger to freedom be cause they were weak, but because they were (and are) so strong, and because they took that strength from a majority of the people. In the face of such total domination, Tocqueville said, a person who felt he had been wronged had no re course but to the establishments directly or indirectly controlled by the majority. Tocqueville's concern revolved around the problem of how to preserve liberty where the majority held this immense and irresistible dominance. Doubts About Democratic Rule Tocqueville'sapprehension was, in one way, nothing new. Begin ning with Plato, political philoso phers of an anti-democratic or aristocratic bent had a dread and loathing of popular rule. Plato him self envisioned a perfect state headed by a philospher king and a carefully chosen .and specially trained aristocratic elite, with en trance from the lower classes sev erely confined. Aristotle after him wanted to alloy as much as possible government of the people with 'monarchy and aristocracy.

But his objections, like those of Plato, were largely theoretical since at that time there were no truly democratic governments worthy of the name. Tocqueville, it must be remembered, was sur veying a living democratic repub lic and sounding, in the name of liberty, a similar cautionary note.

1974 THE INDIVIDUAL AND MAJORITY RULE 663 In his discussion of American institutions, Tocqueville possibly had in mind the theories of J ean Jacques Rousseau. The heart of Rousseau's radical democracy was the idea of the General Will. More than simply another name for the will of the majority to do whatever it wishes, this general will takes on in Rousseau's hands the patina of a moral imperative. Infallible, inviolable, completely sovereign and independent, the general will is always a force of the good and the just. Rousseau would allow no disobedience of the general will once its decision had been made. Out of this belief sprang the curi ous doctrine of compelling a man to be free, of subordinating his will and abiding by the general will even though he may disagree with it. Here, indeed, was democ racy -and with a vengeance. Safeguards Against Tyranny Although Rousseau had some influence on the Founding Fathers in America, his passion concerning majority rule and majority virtue was not so readily transferable.

True, men such as Jefferson and Madison believed in popular gov ernment, but they were also real istic enough to see how overween ing majority power could quickly become mob-rule. They tried to avoid such an occurrence by build ing provisions into the machinery .of government for the separation and diffusion of power, with au thority distributed among three branches. Tocqueville was aware of this, and yet he saw nonetheless a wide latitude remaining for the abuse of power. Later observers of American republican govern ment would make a different argu ment, remarking that the system of checks and balances and separa tion of powers made it difficult to pass legislation for the "good" of the community. To what extent those prophecies have been ful filled (in other words, how well we have been saved from our sav iors), is open to debate; one won ders what would be our situation today had not those safeguards existed. If the burden of social legislation is less now than it might be, we owe yet another debt of gratitude to the Founding Fathers.

Besides the foregoing, Tocque ville perceived other difficulties which, while not novel to the American milieu, were character istic of majoritarian democracies. What happens, for instance when the majority, operating fully within the law, sanctions and puts into effect an unjust law, a law that violates an individual's per sonal notions of right and equity, one he canpot obey in good con science? Does he yield, recogniz ing the higher morality and pur664 THE FREEMAN November pose of the general will, or does he defy the law, thus affirming the superiority of conscience as a guide? Either the majority is su preme, and hence may enact any laws it deems fitting, or there is a power above the maj ori ty and dis tinct from it, to which the citizen may apply for judgment. What is this power, and who is to take the role of vanquished and of victor in the test of wills? Tocqueville answers this way: VVhen I refuse to obey an unjust ~aw, I do not contest the right which the majority has of commanding, but I simply appeal from the sovereignty of the people to the sovereignty of mankind. It has been asserted that a people can never entirely outstep the boundaries of justice and of reason in those affairs which are more pe culiarly its own; and that conse quently full power may fearlessly be given to the majority by which it is represented. But this language is that of a slave.

Stated differently, the majority may command but only consonant with reason and justice. If the maj ori ty acts to serve the causes of inj ustice and unreason, the per son (or people) so misserved must appeal to mankind at large, to state the case for right and truth in the larger court of humanity. The issue is left to one's fellow men and their common sense of decency to decide. The type of mentality that would invest in a majority the full capacity for mak ing unjust laws, and an equal capacity to pass on the morality or legality of those laws, is one, Toc queville firmly believed, more than half way to accepting tyranny. The Power 01 Public Opinion Of less dramatic interest per haps - but of no less significance - than the collision between the indi vid ual conscience and the wrongful decrees of the majority, is the intimate relationship of public opinion and majority rule. The salient difference between Eu rope and America in this regard is the attitude toward dissenting or unpopular opinions. In Europe, "every sort of religious and poli tical theory may be advocated and propagated abroad," and the man who speaks them has several allies: If he is unfortunate enough to live under an absolute government, the people is upon his side; if he inhab its a free country, he may find a shelter behind the authority of the throne, if he require one. The aris tocratic part of society supports him in some countries, and the democ racy in others. But in a nation where democratic institutions exist, organ ized like those of the United States, there is· but one sole authority, one single element of strength and of success, with nothing beyond it.

1974 THE INDIVIDUAL AND MAJORITY RULE 665 Tocqueville" concedes a certain freedom of thought and expression exists here, but insists it does so at the sufferance of the majority and its "very formidable barriers to the liberty of opinion." To pub lish and broadcast an opinion out side the pale of majority regula tion is to invite "the slights and persecutions of daily obloquy." Tocqueville cites the discrepancy between the methods of monarchi cal tyranny to prohibit free thought and discussion, and those utilized by the majority in a demo cratic republic, noting that while "the authority of a king is purely physical . . . the majority pos sesses a power which is physical and moral at the same time." European despots persecuted the body to imprison the soul, but the technique in America is milder, indirect, furtive, and sub tle. The majority disciplines un popular opinions - meaning those it does not share - by narrowing the opportunity for their expres sion, and by stifling, through group-pressure, the will that in spires them. Tocqueville lived too early to witness the horror of mod ern totalitarian states, which em ploy slave-labor camps and indoc trination, subjugating at once the body and the mind.

Tocqueville observes the equal ity of conditions in America, and advances the theory that such equality leads to a centralization of power in the State. So long as inequality is the rule, scattered instances of privilege engender little popular indignation. But when equality prevails, "the slightest dissimilarity is odious." Under a monarchy, the people look to the king, as the head of the State, to rectify the inequity. Un der a democracy, the people look directly to the State itself, the rationale being, "that each of them thinks that he strips his equals of the prerogative which he concedes to the crown." Considering the power thus rendered, it is not so unusual that the State began to enforce equality from above, prompting Tocqueville to say: "The American people would rather be equal in slavery than un equal in freedom." IIBenign Despotism" Given this extreme equality, and gi ven too this ever-expanding State-power, the chances for a form of despotism - one new in the world - are greatly enhanced.

Unlike the tyrannies of old, a dem ocra tic-egalitarian dictatorship would wear a benign aspect. It would order the life of the people for their benefit; it would have their interests in mind at all times. While it maintained an out 'ward semblance of freedom, "un der the ,ving of the sovereignty 666 THE FREEMAN November of the people," it would quietly and without resort to the rack or thumbscrews - extend its author ity into every corner of human life, regulating, managing, and dictating each activity, important and minor alike. The new dispen sation "renders the exercise of the free agency of men less useful and less frequent," the end result being that "each nation is reduced to be nothing better than a flock of timid and industrious animals, of which the government is the shepherd." A chilling prospect to contemplate this is, and none the less so since it describes precisely the state of America today - or at the very least the state to which it is tending.

As Tocqueville realized in his diagnosis of the democratic mal ady, the question of the individual and majority rule cannot be sepa rated from the more pertinent sub ject of the individual and the State. One can hardly speak of limiting the power of the majority without implying a restriction on the State's domain, for in a democ cracy the two are inseparably fused. The majority is the State and the State is the majority. And, like the confusion surrounding the proper sphere of the State, there is an equally gross misconception with respect to what majority rule is meant to do, what it may do, and what it may not do. It is, in fact, a utilitarian principle in tended to expedite the operation of government, to aid in the trans fer of the reins of power, and to give a raw consensus for proposed legislation. It is not a carte blanche for one transiently ascend ant group to violate the rights of any minority or individual. At most, it is supreme in those mat ters that are the necessary and correct duties of the State, those which the State alone can dis charge, and more especially in those whose design is the defense and survival, in freedom, of the nation.

A Legacy to Keep Perhaps it will be argued, in response to the preceding, that if the warrants of the Bill of Rights remain intact, freedom will be amply protected, and conse quently all this talk of the dangers of majority rule is so much super erogation. The intention here is to find fault neither with the Bill of Rights nor with the men who gave us our government. The Found ing Fathers were wise and pre scient men who believed in limited government, in Jefferson's oft quoted but still resonant words, "the government which governs best governs least." Having them selves escaped the grip of mon archical tyranny, they were cog nizant also of the possibility of a 1974 THE INDIVIDUAL AND MAJORITY RULE 667 democratic tyranny arising in America. They knew a despotism bearing the imprimatur of a nu merical majority was a despotism still, and that sheer weight of numbers sanctified nothing. To avert both types of oppression, by one man or by many men, was the aim of the Bill of Rights.

But we have witnessed how even the Bill of Rights may be turned against freedom, as in the Dred Scott case where the Fifth Amend ment was used to keep millions of blacks in bondage, and how far, especially in the last forty years, government can go while remain ing, on the surface, faithful to Constitutional guarantees (Toc queville's comment concerning the "outward forms of freedom" bas a piercing aptness here). And it could be that placing restraints on the State is not a matter for legislation at all but an attitude of mind which must grow out of the people themselves. The Found ing Fathers had this attitude, but somehow the legacy has been lost. It may be that the impulse to be stow absolute supremacy upon a majority, like the related urge to confer unrestricted power upon the State, admits of no easy rem edy. It is too deeply rooted in the common conviction that because to day government is conceived to be a force for good, it can be en trusted with power it will not use for evil tomorrow; that because the majority now shares this con ception, it will always share it; that because ours is a democracy and the majority chooses our lead ers, it will never choose one who will misuse the power once given with such good faith and with such fond hope, so freely and so willingly. , IDEAS ON LIBERTY Constitutional Barriers FORTUNATE it is for the body of a people, if they can continue attentive to their liberties, long enough to erect for then1 a temple, and constitutional barriers for their permanent security: when they are well fixed between the powers of the rulers and the rights of the people, they become visible boundaries, constantly seen by all, and any transgression of them is immediately dis covered: they serve as sentinels for the people at all times, and especially in those unavoidable intervals of inattention.

RICHARD HENRY LEE, during debates concerning the Constitution and Bill of Rights.