When Should The Majority Rule?

In the wake of Boris Johnson’s victory in the election in the UK, a distinguished scholar of comparative constitutionalism posted a lengthy analysis to a listserv in which I participate. Much of that analysis is technical and of interest mainly to other academics, but I was struck by her opening observation:

Calling the Johnson victory a landslide assumes that the results of nationwide first-past-the-post constituency elections adequately capture public sentiment. Yes, Johnson got an overwhelming majority of seats but he didn’t win even a simple majority of the vote. In fact, it turns out that the Tories were up a mere 1.2% in vote totals over their disastrous 2017 election results – in which they lost their parliamentary majority and had to enter a confidence-and-supply agreement with the DUP. Labour is now being called down and out with the worst election results (measured in seats) since the 1930s because they were 7.8% down from 2017. Compared with the 2015 election, they were only 2% down, hardly the stuff of grand tragedy…

The UK first-past-the-post electoral system is fiendishly sensitive to small vote shifts which can produce seismic effects depending on how they are distributed across constituencies.

Sound like another electoral system with which you’re familiar?

Politicians and pundits will continue their ongoing arguments for and against the Electoral College, and the British are evidently embroiled in similar discussions about the operation of their system, but there is an underlying issue with which we very rarely engage: what sorts of social and legal arrangements ought to be decided by popular majorities, and what sorts ought to be protected from the passions of those same majorities?

Defenders of the Electoral College point to the Founders’ well-documented concerns about those “passions of the majority,” and to their initial reluctance to remit even the choice of Senators to popular vote. Opponents point to evidence that the Electoral College was a concession to Southern states– they would have been severely disadvantaged in a system where the popular vote prevailed, because their slaves wouldn’t count.

Whatever side of that argument you find most persuasive, the question remains: in the 21st Century, which decisions should be made by popular vote, and which should not?

A fair reading of the Founders’ basic approach–buttressed by political philosophers from the Enlightenment to modern times–suggests that they favored some form of majority rule for issues of governance, and protection from the “passions of the majority” for issues of human and/or individual rights.

If we look at the Constitution, we see that laws are to be made by representatives of the people (the reason we call ourselves a representative democracy). Although it is certainly true that those representatives were supposed to vote for legislation based upon their presumed knowledge and personal beliefs, if those votes proved to be inconsistent with the desires of their constituents, the constituents could vote them out. (It’s also worth noting that legislation was supposed to be passed by a simple majority vote of those legislators–something that seems quaint in an era where overuse of the filibuster means we need super-majorities in the Senate to pass pretty much anything.)

If we look at the Bill of Rights, we see a very different standard. Because the Founders believed in “natural rights”–that is, they believed that humans (okay, white male humans) are born with certain “unalienable rights”–they protected the exercise of those rights against the sentiments of popular majorities.

When you think about it, it’s a striking dichotomy.

It is supposed to take a majority of American voters (or states) to choose the people who will run our government. It is supposed to take a majority of lawmakers to pass legislation. But individual citizens are supposed to be protected against the disapproval of those same popular majorities when they are exercising their fundamental rights.

We can–and do–argue about how to define “fundamental rights” and how to ensure that vote totals accurately reflect majority sentiment. But I think it is fair to say that when electoral systems operate to privilege minority parties and candidates over those preferred by majorities, those systems are neither democratically nor constitutionally legitimate.


  1. The filibuster has been dead since McConnell took over. As long as he needs a simple majority to do what he wants, the simple majority is used. If he wants to stop something that might be more popular, he uses the filibuster. Mostly though, he seems to be using affirmation and having one person stand up and object. The problem with being in business for 240 years is that you have found lots of ways to circumvent “regular order”.

  2. The striking dichotomy is easy to understand. Just read Hamilton’s discussion of the electoral college in The Federalist Papers. It is slow going, partly because 18th century English grammar was a bit more complex than what we are used to seeing, and partly because Hamilton’s writing style was complex. But if you slog through it, you will see that he (at least) did not trust the majority to do anything important. The “masses” could not be trusted to see through the wiles of a charlatan. And those “masses” were the white male property owners, who were the only ones allowed to vote. But he didn’t trust their judgement. That is why he favored the masses voting for a few capable men of good judgement who would decide who was qualified to be the chief executive.

  3. Two points: 1) There is no mention of “electoral college” in The Constitution. That phrase implies a body sitting down and conferring in some way. Art. II describes “electors” – individuals selected by each State to exercise discretion to prevent an incompetent, someone corrupt, or an individual compromised by a foreign power from taking Office. Electors never have acted in that way. 2) The Framers never would have agreed to winner-take-all – an approach that largely was accepted after the 1824 election and required to vote for a specific candidate, especially if based on party identification.

  4. Peggy; do you believe the Republican majority is supporting McConnell’s actions and inaction because they agree with him or because they fear repercussions from the Trump/McConnell Republic party? The few Republicans who have spoken out against them vote with them every time; do they believe their voters support them for what they say or what they ultimately do? Rationality, logic and common sense have no place in the Republican party, making them a very dangerous majority which continues to rule against the vast majority of Americans. Even with the successful House impeachment; we need to be afraid, be very afraid…and we are the majority. But like Hillary Clinton’s majority of the popular vote by 3 MILLION; it was the majority of the lesser count of Electoral College members whose vote put Trump in the White House and this entire nation in danger. The majority of the minority is the only definition I can come up with.

  5. Pascal so aptly pointed out, the white male property owners could not be trusted because they weren’t well informed. Farmers were supposed to elect more informed Oligarchs to make decisions on their behalf.

    In 2019, it’s just the opposite — the people don’t trust our government because no matter who we’ve been electing, the politicians work for the Donor Class who advocates for austerity on the working class and socialism for the Oligarchy (Neoliberalism).

    The results: we clamor over the stock market and GDP, but approximately 40% of workers live check to check in asset poverty. CEO salary to average worker salary is a grotesque margin coupled with the gross inequality of wealth and income distributed among citizens.

    Regardless of the electoral system, our economic system is definitely working for the minority of U.S. citizens. We aren’t a democracy or representative democracy — we are an Oligarchy and the Oligarchs spend enormous sums of money to ensure it remains an Oligarchy.

    It’s not Russia interfering in elections…it’s the U.S. Oligarchy.

  6. I continue to be amazed at those who believe they will find the answers to today’s governance problems in the writings of Hamilton, Madison and friends who could not have foreseen the world or problems we are dealing with today. Divining meaning and solutions from the minutia of those writings is a favorite pastime of conservatives and others who continue to look backward while trying to defend inaction and a possible loss of power and their undeserved wealth.

  7. In my simple civics model of government, democracy is when a majority of those who are governed consent to be if given the ability to hire and fire those governing. The reasoning behind that is equally simple. Who would choose anyone to give power over them to who didn’t have their best interests at heart?

    Imagine if we could pick our parents.

    The article of faith implicit in that however is the ability for everyone and anyone to see into the minds and hearts of other people especially when viewed from afar. Especially in today’s world besotted by social/entertainment media advertising/fake news/propaganda/brainwashing. Especially in today’s very high tech evidence based psychology supported mind bending magic. The bottom line is that our collective ability to deceive is at least as good, and arguably better, than our ability to inform.

    Now what? That’s not a rhetorical question but one that must be answered by each and every one of us. Now what? Boris and Trump and Pence and Barr and McConnell or the Obamas? Biden or Saunders or Warren or Klobuchar.

    Can we free our minds from advertising to fill them with knowledge?

  8. As this evening’s first night of Hanukkah approaches to celebrate a miracle, might we riff on John Lennon…

    Imagine no partisan gerrymandering…
    Imagine public financing of elections …
    Imagine Election Day on Veteran’s Day – “honor those who died for your right to vote” …
    Imagine fixed limited times for campaigns…
    Imagine complete transparency of all private campaign contributions…

    Sure others here could add more…

  9. “what sorts of social and legal arrangements ought to be decided by popular majorities, and what sorts ought to be protected from the passions of those same majorities?‘

    In our representative democracy the only real decisions other than hiring and firing those governing left to the passions of the majority are Constitutional Amendments.

    In corporate life, hiring and firing are considered enough power to manage a corporate culture.

  10. Pete – sorry – the best holiday present ever to the Far Right would be a Constitutional Convention. Watch what you ask for!

  11. Theresa; It is always good to look at the past to what pitfalls thinking men envisaged. It often gives insight to the perils we face today.

    Lester; Thanks for Lennon re-write.

  12. Todd, I agree with you, “It’s not Russia interfering in elections…it’s the U.S. Oligarchy.” The Oligarchy are unencumbered by morality or fair play -It is all about Profit. When the Oligarchs are allowed to staff the regulatory agencies with their stooges, for the Oligarchs, the system works perfectly for them.

    I agree with Theresa also @ 9:38 am. Hamilton, Madison and friends wrote about their times, how to balance, All men are created Equal with slavery, etc. The idea that somehow we should be corralled philosophically about the workings of the government by the 18th Century should be rejected.

    Oddly enough, although Democrats have expressed the idea of one way or another to deep six the Electoral College, the ruling body of the Democratic Party – the DNC preserved the Super Delegate system.

    The design feature of three co-equal parts of the government on it’s face would work. It is a bit like the Christian Trinity – three entities and one God. Do these entities always agree???

    Our elected officials given their longevity have all the appearance, except for the titles of royalty, as royalty in fact. Prince McConnell might be a more appropriate title. President Agent Orange is the Man who would be King. The Judiciary should be like the old Dragnet TV Series – Just facts. The Federal Legislative Branch has given vast powers to an Imperial Presidency.

    The bottom line in a way is the system is only as good as the people who control it. Here in the USA the 1% and Oligarchs control it. The Oligarchs fear Democratic Socialism for a reason, they would lose their power.

  13. lester is a poet..im watching c span,the impeachment er,speakers, on one side the standfast side who watchdogs of the law and decorum at this moment of the congress,the otherside,a bunch of whinney ass bitches who havent a second of decency in them anymore..seriously lacking in judgement,and rule of law, or, when they were elected,this was their plan. untold to others,defend the mass exicution of our democracy,drive it into a hole,and let the likes of koch,mercer,bloomburg,murdoch,and the rest have a new world order at our expense..they have done their work well.. as long as we can hold out,we may win this.but,lets take a look in the mirror,and make sure were going to make it change..they all have signed the deal. meet with others,shake a hand,start a conversation with others,make a stand.. id like to thank John Lewis for his speach,at the impeachment,thanks. your words were to the heart of the matter…

  14. In recent history, President Obama managed to pass a decades-long dream of health care reform. He did it by getting a Heritage Foundation plan passed – one that enshrined healthcare as a COMMODITY. Somehow, during the debates, popular sentiment has come to see healthcare as a RIGHT.

    In a similar vein and for whatever reasons, the authors of our founding documents left a lot of ambiguous language in those documents. They may have distrusted the masses and they may have meant white, male landowners (and non-Jewish, non-Catholic, non-Quaker in some states) when they wrote “all men are created equal”, but the words led people to question the restrictions, allowing non-landowners, all religions, non-white, Native Americans, women, and 18 year-olds to be part of “all men” (and yes, in the English language “men” was the term used to be gender inclusive – again, an ambiguous word).

    As Sheila points out, definitions of what are “fundamental rights” is also the beneficiary of these ambiguities.

    While the dichotomy between governance and “unalienable rights” is, indeed, striking, it leaves us with the newly exposed problems of dealing with a “duly elected” government (as in 2016) that believes that they are protecting society (arguably a governance role) by depriving certain non-WASP people of their rights (arguably “unalienable” ones).

    On the subject of the American oligarchs, they would have preferred a pro-business Clinton, because most of them want immigrant labor and don’t care about people’s sex lives, or reproductive freedom (as long as it isn’t a big cost to them). Some are even ideological libertarians like the Koch brothers. Although their short-term mentality may have the oligarchs believing that Trump is good because of tax-cuts, their long term interests would suffer if Trump succeeds in turning America into a banana republic – they would have to fight among themselves to be the one favored oligarch in their industry – who wins, AT&T or Verizon – there can only be one.

    Also, for those of you still believing that limiting terms is a great idea, imagine 2018 without Nancy Pelosi, because she was term-limited. I reiterate – term limits was a concept promoted by California Republicans to prevent San Francisco voters from returning Willie Brown to the state assembly, where he was the powerful speaker.

    Traditionally, Americans hate all congress people, except their own. Everyone else engages in “pork barrel” spending, while their representative “brings home the bacon”. Either way it is all “traif”.

    Happy Winter Solstice, Happy Hanukkah, Merry Christmas, Happy Festivus, Happy Kwanzaa, and Happy New Year — and any holidays I may have missed.

  15. Len – thanks for pointing out the fallacy in term limits. It is the lazy person’s way of thinking that the voters won’t remove an ineffective politician. Our work in 2018 removing “career politicians” often hinged on incumbent’s arrogant behavior of rarely, if ever, holding town halls or routinely listening to their constituents.

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