The Tyranny of the Tenuous Majority
During a recent trip around the channel horn, I had the unfortunate (though admittedly self-inflicted) experience of watching a conversation between Fox News personality Bill O’ Reilly and ex-Speaker of the House-turned-Historian Newt Gingrich. The matter on the table was the judiciary branch of government, particularly how to wrest liberals from having any influence in it. Gingrich openly called for a purging of liberal judges, and attempted a somewhat bastardized historical reference to Thomas Jefferson’s attacks on the last minute judicial appointments John Adams made before leaving office in 1801, known infamously as the “Midnight Judges.”
As I watched these two men congratulating each other on their brilliance (I assume their admiration for each other’s misogynistic personal lives was saved for off camera), I kept coming back to two chapters in book one of Alexis de Tocqueville’s Democracy In America. Chapters fifteen and sixteen specifically, which deal with an idea he termed “the tyranny of the majority.” In these chapters, Tocqueville observed that American majorities “frequently display the tastes and the propensities of a despot,” and that “in such a republic a more insufferable despotism would prevail than in any of the absolute monarchies of Europe; or, indeed, than any that could be found on this side of Asia.” As I slumped in my chair reading this, Tocqueville offered redress. “The legal profession,” he argued, was “the most powerful existing security against the excesses of democracy.”
Yet it is this last bastion against the tyrannical majority that conservatives are now hell-bent on tearing down. Take Orrin Hatch’s address to the Christian Coalition “Road to Victory 2004” as example. There he asserted “judicial activism destroys the people’s right to govern ourselves, to have our values influence public policy and define the culture. America needs judges who know their proper place and are committed to stay there.” According to Tocqueville, and seemingly those voted to ratify the Constitution, the judiciary’s “proper place” was to check people from asserting their majority will over minorities who dissent. That, after all, is the foundation of a free society. Conservatives will apparently have none of that.
That the tyrannical majority would make subjects of dissenting citizens comes as no surprise, given the theocratic overtones of post-election conservative rhetoric. Jerry Falwell has resurrected the “Moral Majority” through the formation of the “Faith and Values Coalition, which is “a national organization designed to maintain the national momentum gained through "values voters" who swept President Bush back into office on November 2.” First on the FVC’s to-do list is to see through “the confirmation of pro-life, strict constructionist U.S. Supreme Court justices and other federal judges.” Tocqueville be damned. His observation that “The moral power of the majority is founded upon yet another principle, which is that the interests of the many are to be preferred to those of a few” was supposed to be problematic, not prescriptive.
Ultimately, the result of all of this was Tocqueville’s observation that “this state of things is harmful in itself and dangerous to the future.” Though he checked his concerns in 1831 with the qualification that “I do not say that there is a frequent use of tyranny in America at the present day,” our present condition teeters in the balance. Whether the judiciary will be used to impose the will of the tenuous majority in America remains to be seen. Given this context, it seems a perversion of the intended role of the judiciary. With the legislative and executive branches firmly under conservative control, those who value freedom over tyranny would do well not to allow impositions of majority will to determine the course of judiciary appointments over the next four years.
This is obviously problematic given the self-righteous zeal with which social conservatives fuel their agenda. In the weeks after the past election, editorials in conservative weeklies like The American Spectator and The National Review rang of the same themes. Bill Bennett among many others wrote that “President Bush now has a mandate,” which seemed somewhat inaccurate given the closeness of the election. The conservative response to such criticism was pointed. “Who Needs a Mandate?” asked William Tucker “we’ve got a majority." He punctuated his observation with a battle cry: “Let’s get ‘em George! They ain’t seen nothin’ yet.”
No, we haven’t.
As I watched these two men congratulating each other on their brilliance (I assume their admiration for each other’s misogynistic personal lives was saved for off camera), I kept coming back to two chapters in book one of Alexis de Tocqueville’s Democracy In America. Chapters fifteen and sixteen specifically, which deal with an idea he termed “the tyranny of the majority.” In these chapters, Tocqueville observed that American majorities “frequently display the tastes and the propensities of a despot,” and that “in such a republic a more insufferable despotism would prevail than in any of the absolute monarchies of Europe; or, indeed, than any that could be found on this side of Asia.” As I slumped in my chair reading this, Tocqueville offered redress. “The legal profession,” he argued, was “the most powerful existing security against the excesses of democracy.”
Yet it is this last bastion against the tyrannical majority that conservatives are now hell-bent on tearing down. Take Orrin Hatch’s address to the Christian Coalition “Road to Victory 2004” as example. There he asserted “judicial activism destroys the people’s right to govern ourselves, to have our values influence public policy and define the culture. America needs judges who know their proper place and are committed to stay there.” According to Tocqueville, and seemingly those voted to ratify the Constitution, the judiciary’s “proper place” was to check people from asserting their majority will over minorities who dissent. That, after all, is the foundation of a free society. Conservatives will apparently have none of that.
That the tyrannical majority would make subjects of dissenting citizens comes as no surprise, given the theocratic overtones of post-election conservative rhetoric. Jerry Falwell has resurrected the “Moral Majority” through the formation of the “Faith and Values Coalition, which is “a national organization designed to maintain the national momentum gained through "values voters" who swept President Bush back into office on November 2.” First on the FVC’s to-do list is to see through “the confirmation of pro-life, strict constructionist U.S. Supreme Court justices and other federal judges.” Tocqueville be damned. His observation that “The moral power of the majority is founded upon yet another principle, which is that the interests of the many are to be preferred to those of a few” was supposed to be problematic, not prescriptive.
Ultimately, the result of all of this was Tocqueville’s observation that “this state of things is harmful in itself and dangerous to the future.” Though he checked his concerns in 1831 with the qualification that “I do not say that there is a frequent use of tyranny in America at the present day,” our present condition teeters in the balance. Whether the judiciary will be used to impose the will of the tenuous majority in America remains to be seen. Given this context, it seems a perversion of the intended role of the judiciary. With the legislative and executive branches firmly under conservative control, those who value freedom over tyranny would do well not to allow impositions of majority will to determine the course of judiciary appointments over the next four years.
This is obviously problematic given the self-righteous zeal with which social conservatives fuel their agenda. In the weeks after the past election, editorials in conservative weeklies like The American Spectator and The National Review rang of the same themes. Bill Bennett among many others wrote that “President Bush now has a mandate,” which seemed somewhat inaccurate given the closeness of the election. The conservative response to such criticism was pointed. “Who Needs a Mandate?” asked William Tucker “we’ve got a majority." He punctuated his observation with a battle cry: “Let’s get ‘em George! They ain’t seen nothin’ yet.”
No, we haven’t.
posted by MK | 1:20 PM
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