Comment: Minority in U.S. often holds more power than majority

By design and by accident, institutions often place the minority in position to overrule the majority.

By James C. Nelson / For The Fulcrum

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 rule of majority-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-rule 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.

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 LGBTQ+ 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 U.S. 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.

James C. Nelson is a retired attorney and served as an associate justice of the Montana Supreme Court from 1993 through 2012. The Fulcrum is a nonprofit, nonpartisan news platform covering efforts to fix our governing systems. ©2024 The Fulcrum, Distributed by Tribune Content Agency, LLC.

Talk to us

> Give us your news tips.

> Send us a letter to the editor.

> More Herald contact information.

More in Opinion

Liz Skinner, right, and Emma Titterness, both from Domestic Violence Services of Snohomish County, speak with a man near the Silver Lake Safeway while conducting a point-in-time count Tuesday, Jan. 23, 2024, in Everett, Washington. The man, who had slept at that location the previous night, was provided some food and a warming kit after participating in the PIT survey. (Ryan Berry / The Herald)
Editorial: Among obstacles, hope to curb homelessness

Panelists from service providers and local officials discussed homelessness’ interwoven challenges.

Comment: Are we getting our money’s worth from our taxes?

Most Europeans pay higher taxes, but add up our taxes and what we pay out of pocket and we’re seeing less.

FILE - In this photo taken Oct. 2, 2018, semi-automatic rifles fill a wall at a gun shop in Lynnwood, Wash. Gov. Jay Inslee is joining state Attorney General Bob Ferguson to propose limits to magazine capacity and a ban on the sale of assault weapons. (AP Photo/Elaine Thompson, File)
Editorial: ‘History, tradition’ poor test for gun safety laws

Judge’s ruling against the state’s law on large-capacity gun clips is based on a problematic decision.

This combination of photos taken on Capitol Hill in Washington shows Rep. Cathy McMorris Rodgers, R-Wash., on March 23, 2023, left, and Sen. Maria Cantwell, D-Wash., on Nov. 3, 2021. The two lawmakers from opposing parties are floating a new plan to protect the privacy of Americans' personal data. The draft legislation was announced Sunday, April 7, 2024, and would make privacy a consumer right and set new rules for companies that collect and transfer personal data. (AP Photo)
Editorial: Adopt federal rules on data privacy and rights

A bipartisan plan from Sen. Cantwell and Rep. McMorris Rodgers offers consumer protection online.

Students make their way through a portion of a secure gate a fence at the front of Lakewood Elementary School on Tuesday, March 19, 2024 in Marysville, Washington. Fencing the entire campus is something that would hopefully be upgraded with fund from the levy. (Olivia Vanni / The Herald)
Editorial: Levies in two north county districts deserve support

Lakewood School District is seeking approval of two levies. Fire District 21 seeks a levy increase.

Comment: Racial divide over O.J.’s trial is as fresh as ever

The trial divided friends and communities on issues of race and justice.

Saunders: Biden’s student debt relief passes buck to taxpayers

Forgiving loans doesn’t make them disappear, it just transfers the debt to taxpayers.

A Brockton firefighter lifts a protective turnout coat onto a firetruck at Station 1, Thursday, Aug. 3, 2023, in Brockton, Mass. Firefighters around the country are concerned that gear laced with the toxic industrial compound PFAS could be one reason why cancer rates among their ranks are rising. The chemical, which has been linked to health problems including several types of cancer, is used in turnout gear to repel water and other substances when fighting a fire. (AP Photo/Steven Senne)
Commentary: Fighting the threat of ‘forever chemicals’

New EPA standards will require the removal of PFAS chemicals from water. Here’s why that’s important.

Benefits outweigh risks of grizzlies in North Cascades

After moving back to the Pascific Northwest, I began a 40-year long… Continue reading

If you drink alcohol, do so mindfully

April is Alcohol Awareness Month, a time to think about your alcohol… Continue reading

Comment: Rule must change to allow dialysis as end-of-life care

An outdated rule may change to allow patients in palliative care to receive the comfort of kidney dialysis.

Support local journalism

If you value local news, make a gift now to support the trusted journalism you get in The Daily Herald. Donations processed in this system are not tax deductible.