The Tyranny Of The Minority

Among the newsletters I receive is one from historian Heather Cox Richardson, who regularly provides historical context for contemporary issues.

These two paragraphs from a recent newsletter have prompted me to dust off and recycle one of my old classroom lectures.

The right-wing rejection of democracy was on display at a meeting of the Federalist Society in early March. Politico’s Ian Ward covered the meeting. The Federalist Society organized in the 1980s to argue that the civil rights decisions of the past several decades corrupted democracy because liberal judges were “legislating from the bench” against the wishes of actual voters. The society’s members claimed to stand for judicial restraint.

But now that their judges are on the bench, they have changed their philosophy. Last summer, after a Supreme Court stacked with Federalist Society members overturned the right to abortion, voters have tried to protect that right in the states. Now, according to Ward, the Federalist Society appears to be shifting away from the idea of judicial restraint in the face of popular votes and toward the idea that judges should “interpret the Constitution” in ways right-wing Americans support. They are quick to claim that democracy is not the answer: it would result, they say, in the tyranny of the majority.

When I taught Law and Public Policy, we talked a lot about the U.S. Constitution, and the Founders’  approach to that “tyranny of the majority.”

The phrase points to a legitimate concern: if the law is anything a majority of voters say it is at any given time, individual rights are at risk. A majority can vote to disenfranchise a minority, require everyone to attend a particular church, criminalize anti-government sentiments… the list goes on.

It is easy, after 200 plus years, to find fault with our Constitution, and in this blog I have pointed to areas that I think need to be amended or re-construed. But the philosophy with which the Founders approached these very real worries about what they called the “passions of the majority” was (in my view) as close to perfect as possible.

Drawing on Enlightenment scholarship, the Founders distinguished between matters that were properly within the decision-making authority of “the people”–the majority– and matters that were to be protected from the majoritarian passions of those people.

That division was the entire purpose of the Bill of Rights.

In our system, a majority of voters get to select their lawmakers (theoretically, at least, voting for those whose positions they endorse). Those representatives then decide, via legislative majorities, issues ranging from waging war, to taxes, to electoral processes, to the establishment of government agencies…on and on. (And yes, as I periodically point out, this process is currently not working very well…)

The Bill of Rights constrains the ability of the majority to determine the law. It protects the right of individuals to self-govern, marking out legal territory that the majority cannot enter. Your neighbors cannot vote to make you attend a particular church or  prevent you from reading a particular book; they may not authorize a government functionary to “search and seize” you without probable cause. Etc.

For years, judges and lawyers have debated the range of personal liberties protected against majority disapproval. Was the Bill of Rights to be read as an organic whole, encompassing the “unenumerated” rights retained by the people, or was it to be limited to rights expressly identified? I think the expansive reading is more consistent with the text and the Founders’ original expressed philosophies, but it’s a legitimate debate.

The about-face by the Federalist Society is not legitimate. It is an argument for the tyranny of a minority–so long, of course, as that ruling minority agrees with them.

The American constitutional system was based upon the libertarian principle (libertarianism as properly–and originally–understood). I’ve shared it before; let me share it again: The libertarian principle holds that Individuals should be free to pursue their own ends–their own life goals–so long as they do not thereby harm the person or property of another, and so long as they are willing to accord an equal liberty to their fellow citizens.

We can argue about the nature of the harms that justify government intervention, but Jefferson had it right: “It does me no injury for my neighbour to say there are 20 gods or no God. It neither picks my pocket nor breaks my leg.”

The purpose of the Bill of Rights was to erect a boundary between those matters that harm others, which the majority can properly sanction, and the individual, profoundly personal human rights that are simply none of government’s business.

We can argue about where that boundary belongs, but the Federalist Society,  MAGA warriors and  Christian Nationalists are trying to erase it altogether.


  1. Don’t forget that the two capitalist political parties are performative stooges for our media. The goal is to give the illusion of opposing entities when they work together.

    For instance, why didn’t the Democrats go after the jugular of the MAGA GOP and their donors of the 1/6 insurrection?

    Pelosi and Biden said they needed the GOP. 😉

    And, Sheila writes, “Enlightenment scholarship…”

    Doesn’t “enlightenment” mean woke?

    Jefferson knew what the “economic wolves” were wanting in the 1700’s and our enlightened scholars should fully grasp what the same wolves want today. Why is Thomas Piketty marginalized by the media? Or Jeffrey Sachs? LOL

  2. I don’t disagree that the Federalist Society has backed away some from the idea that our democratic institutions instead of judges should decide policy issues, unless, of course, the Constitution requires otherwise.

    I would quibble strongly though with Heather Cox Richardson using the abortion issue to prove that point. The whole idea of Dobbs is that the Constitution is silent on the issue of a right to abortion and that the issue should be decided by democratic institutions instead, in particular state legislatures. The Federalist Society has never changed its position on the abortion issue as far as I know. I went to Federalist Society meetings in the 1980s and the position the Society holds now on abortion is, I do believe, exactly the same now as it was then.

  3. I think Sheila is correct as you quotes Thomas Jefferson!

    Isn’t that what the separation of church and state was?

    Whatever your neighbor believes, whatever his religious beliefs, whatever his practices, as long as it does not cause harm to you, is nobody’s business but your neighbors.

    I use his metaphorically!

    That being said, making decisions on how to live one’s life should be part of not only human rights but civil rights.

    I’ll go out and snow blow the driveway in sandals, shorts, and a Hawaiian shirt. It’s my right to do that, it’s also my neighbor’s right to think I’m insane! But as long as it doesn’t do any harm, then what’s the issue?

    Government needs to stay out of the bathroom, out of the bedroom, out of your Vagina and out of your pants. Everyone is a free moral agent and also free to follow their conscience. So as long as it does no harm to the ones neighbor, the one living next door, It really is nobody else’s business.

    And, if individuals believe that there is some sort of final judgment, then everyone will be judged in the long run by how they live their life buy a power higher than men.

    That doesn’t mean if you live in a walled off fortified domicile, where no one can see in, a person can do what they please. Murder, child molestation, thievery and criminality, along with other issues, are against moral, civil, and theocratic boundaries are an abomination, and should be penalized.

    More than likely every single individual on this planet has an opinion, and sometimes, they want their opinions recognized. Even if those opinions don’t reflect reality. But that’s probably for another thread.

  4. “The about-face by the Federalist Society is not legitimate. It is an argument for the tyranny of a minority–so long, of course, as that ruling minority agrees with them.”

    Todd asks; “For instance, why didn’t the Democrats go after the jugular of the MAGA GOP and their donors of the 1/6 insurrection?” The Democrats, with the strong leadership of two Republicans, have done that by legally investigating and protecting the rights of the insurrectionists in the manner of their investigation. In other words, they are following the Rule of Law as provided for all in the Constitution. Now; the insurrectionists within the government are using their slim majority to investigate the investigators who investigated them.

    To quote Sheila; “The Bill of Rights constrains the ability of the majority to determine the law. It protects the right of individuals to self-govern, marking out legal territory that the majority cannot enter.” What we are dealing with today is the lack of restraint on government’s controlling faction, whether in the majority or the minority, to require they uphold their own Oaths of Office to maintain and protect the Bill of Rights for all. Those who are at a standstill by sitting mute and idle within one party has managed to take control by stopping all forward action.

    Paul selected only one issue to “quibble with”; the issue of abortion which was settled 50 years ago with no established time frame. He states, as far as he knows, the issue in the Federalist Society has not changed its position but those claiming to support the Society have changed the foundation by “backing away”; again by not being required to uphold their Oaths of Office. They are aided by the lack of any requirement of telling the truth and stating facts to gain an office or remain in office.

    Polls are repeatedly being reported by the media that the majority of Americans uphold the right to choose, the right to vote, the right to religious beliefs, the rights of LGBTQs but the minority is the ruling factor as proven by conditions in our daily lives subjected to the right of Donald Trump to be above the law and the loss of citizen’s rights is protected by those in the minority MAGA White Nationalist party. We are living under the “tyranny of the minority” and the continuing dictatorship of Donald Trump; whose controlling faction can and will carry on with or without “The Donald” leading them.

  5. So…history is nice and here we are. What do we do to make things “right”?

  6. Paul, what are we to make of Amendment IX? Clearly, abortion was widely practiced in the 18th century, as it has been for most of the years of human existence, Many times it has been deemed illegal and those offering and receiving the benefit of control of one’s own body have frequently been endangered. Nonetheless, it does seem to me to fall under Amendment IX’s inclusive expansion of rights not previously enumerated.

  7. Why does a woman’s health have to be legislated? Because of the possibility of using federal funds for abortion care?
    When does a man’s health use federal funds?
    If man’s health does, is it as legislated?

  8. Lester,

    First, we must acknowledge that the US is an oligarchy hedging toward an authoritarian Fascist state ruled by a two-party predatory capitalist system.

    Once we agree, we can go to Einstein’s solution – socialism via centralized planning. Shift our society from profit maximization of the few toward social benefits for all.

  9. Una,

    Yep right on…..

    Insurance will pay for a man’s E-D
    Medical costs, and not pay for women’s birth control meds!

    The rationality of this evaporates under scrutiny. The hypocrisy is self-evident.

  10. Todd,

    I challenge you – pure socialism is not saleable in the US. But, perhaps, something “in between” that and where we are/are heading. Any thoughts on that, especially ones that have half a chance?

  11. Una; Indiana SB 259 would make feminine hygiene products tax exempt; I received a survey from my Senator asking my view on that and other issues. I stated NO to SB 259; it would take severe specification limitations due to the vast number of products on the market today considered as feminine hygiene products. The Period Panties, douches, the new LumeDeo and many other products which would lower sales tax income. Then we can expect to hear from the men to have Ballsy and other new products for “their care down there” demanding that is hygiene related and should also be tax free. Ruth Bader Ginsberg’s first major case changed tax law to allow men to claim exemption for wages they paid for medical care for an elderly or disabled parent; this exemption has previously been allowed only for women to claim. The world is changing faster than laws can keep up with; including tax laws…except for that lower rate for the wealthy and for corporations. Both are in the minority but today they rule.

  12. The Federalist Society plays by the same twisted rules as the GOP, and Hitler’s
    phrase: “What is good for Germany is what is right!” Not to lean too heavily on
    platitudes, but, “Power corrupts, and absolute power corrupts absolutely,” seems
    to also apply to them, and, by extension, to the right.

  13. The libertarian principle works perfectly. The problem is people who ignore its last phrase, that is, they claim the first part for themselves but are unwilling to apply it equally to others. Then there is also the problem of people who claim they are being harmed whenever they see or hear something that makes them uncomfortable like a black man walking on “their” street. When courts legitimize these logical inconsistencies as, for example, with stand your ground laws, we are all in trouble.

  14. The inability of the state legislature to fully appreciate the freedoms expressed in the Bill of Rights is an unnecessary obstacle to progress. Let people live their personal lives, learn from their mistakes and pursue their happiness.
    Legislating personal decisions always fails: Prohibition is a prime example. Those laws empowered organize crime and weakened the justice system with the overwhelming work of enforcement. Women’s healthcare and family planning will be the same; it will force that healthcare underground or to other states or countries.
    The state Legislature is separate from the patriarchal hierarchy of the Church. We need representatives who are able to distinguish what separation of Church and State is and protect the rights inherent in the Constitution and Bill of Rights.

  15. And am I supposed to be surprised by this?
    Sorry, maybe I am more cynical than I am supposed to be, but I always thought that their real “legal principles” were to find ways to impose their view of society on everyone.

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