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TYRANNIES OF THE MAJORITY IN AMERICAN DEMOCRACY:
Segregation, Voter Suppression, and Gerrymandering
In his famous book On Liberty, John Stuart Mill writes that ancient concerns about tyranny were mostly confined to the behavior of monarchs and oligarchs who had the will and the political power to suppress individual liberty. The aim of those who resisted tyranny “was to set limits to the power which the ruler should be suffered to exercise over the community, and this limitation is what they meant by liberty” (On Liberty, p.2).
It was once thought that there was no need to set limits to the power of the people in a democracy because “the people have no need to limit their power over themselves.” Mill rebutted with this simple argument:
“…the ‘people’ who exercise the power are not always the same people with those over whom it is exercised. The will of the people, moreover, practically means the will of the most numerous of the people—the majority, or those who succeed in making themselves accepted as the majority” (p.4)
Mill’s point is not that we should discard democracy as a justifiable form of government, but that democracy is as vulnerable to tyrannical power as is oligarchy and monarchy. If democracy puts no restraints on “the will of the most numerous of the people” (the majority), then the least numerous of the people (the minority) can be tyrannized as much and as often as are subjects in a monarchy or oligarchy.
Mill also wrote that “the tyranny of the majority is now generally included among the evils against which society requires to be on guard.” This raises three questions. (1) What is tyranny? (2) What is ‘evil’? (3) Why are tyrannical acts of the majority evil? Mill does not define ‘tyranny’ except to place it in the category of evil actions. But (to make things worse) he does not define ‘evil.’
However, Mill does give us a hint about the meaning of evil when he says that evils are the kind of actions “against which society ought to be on guard.” Mill does not give examples of what we should guard against, but perhaps we can extract them from Mill’s foundational Harm Principle.
This principle says that no law “can be rightfully exercised over any member of a civilized community, against his will.” Rightful exercise of legal power are mandatory laws that prohibit harm to others. Wrongful exercise of legal power are laws prohibiting conduct that causes no harm to others.
Examples of mandatory laws whose purpose is to prevent harm to others include prohibitions on murder, assault, theft, and arson. Laws whose purpose is to prevent conduct that does not prevent harm to others include prohibitions on drunkenness, consensual sex out of wedlock, same-sex marriage, abortion, contraception, pornography, choice of religious and political opinions and thought.
2. The tyranny of segregation laws.
One would think that slavery and the segregation of races would be included in Mill’s
list of the tyrannical exercise of legal power by the majority. Convincing examples of tyranny of the majority are the Jim Crow laws enacted after the Civil War by majority white legislators (“of European descent”). These laws were a collection of state and local statutes that legalized racial segregation (laws requiring separate housing, education, and other services for people of color). African Americans and other non-white people were also denied the right to vote, hold jobs, swim in public pools, drink from white fountains. “Those who attempted to defy Jim Crow laws often faced arrest, fines, jail sentences, violence, and death” (History.com editors).
In evaluating racial segregation, we might use Mill’s harm-to-others principle[1], provide evidence that segregation does not protect white people from harm, and conclude that segregation laws are immoral because they are harmful to Black people. We could reach the same conclusion by providing evidence that white people are not harmed by integration of the races.
The U.S. Supreme Court took a different approach in the 1954 Brown v Board of Education decision, ruling that separating children in public schools based on race was unconstitutional. The decision signaled the end of legalized racial segregation in the schools of the United States. The court reached this decision in part by showing that segregation harms African American and other minority children, but for the most part the Court reached its decision by discarding the "separate but equal" principle used in the 1896 Plessy v. Ferguson case.[2]
The overruling of Plessy was based on the court’s interpretation of the 14th Amendment of the U.S. Constitution. Chief Justice Earl Warren, writing for the court, said “separate is not equal”:
Segregation of white and Negro children in the public schools of a State solely on the basis of race, pursuant to state laws permitting or requiring such segregation, denies to Negro children the equal protection of the laws guaranteed by the Fourteenth Amendment -- even though the physical facilities and other "tangible" factors of white and Negro schools may be equal. (Pp. 486-496).
The implication of Brown v. Board of Education as an answer to the question about the tyranny of the majority is that state legislatures were tyrannizing a minority of the population by treating Black children unequally. In the context of this case, ‘unequally’ means treating Black children differently than white children even though Black children are not relevantly different than white children for the purpose of education. In the context of education, the reasons for separating Black and White children had nothing to do with education. They only had to do with bias and hatred, based on unfounded assumptions of racial inferiority and rumor. Once these reasons are discarded, the only difference between Black and White children is physical appearance. This is not a relevant difference in the context of education and other activities which have been historically prohibited by the White majority.
Finally, one obvious feature of American democracy that is relevant to early efforts to prohibit tyrannies of the majority by Congress and state legislatures are the individual rights guaranteed in the first ten amendments to the United States Constitution (the Bill of Rights). For example, the First Amendment prohibits Congress from making laws “abridging the freedom of speech, or of the press.” Other tyrannical abridgments halted by amendment are “the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” The assumption of the Framers of the amendments is that abridgments of speech, the press, assembly and petitions to Government were believed to be morally wrong, perhaps even “evil.”
3. The tyranny of voter suppression laws.
Suppose that a political party is the majority party in a state legislature. Members of this party have recently seen polls showing that disabled persons are more likely to vote for a rival party in state and federal elections. Their response is to pass a law that makes it harder for disabled persons in wheelchairs to vote by removing existing ramps that make it easier for the disabled to enter the polling places. These lawmakers insist that they are not preventing handicapped people from voting. They say that this impediment to disabled voting is done only to guarantee “election integrity.” After all, they say, disabled persons in wheelchairs can still vote if they can find an alternative way to get into the polls (perhaps by bringing friends with them who could carry them up the stairs). If it is harder to get to the polls, they say, then this shows how serious they are about voting.
Of course, this is hypothetical. Federal ADA requirements prohibit state legislatures from tampering with access ramps for the handicapped. But is there a relevant difference between this imaginary example and what majority Republican legislatures in several states have recently done to restrict voting?
Fraud is the usual justification given for restricting voting days and hours, prohibiting absentee ballots to be sent to all registered voters, and limiting drive-up voting, but no evidence has been offered to the courts proving that there were more than a few instances of fraudulent votes. The unspoken motive for placing new restrictions on voting is to reduce the number of minority and poor people who vote because these groups usually vote for Democrats. Instead of convincing these communities that they should cast their votes for Republican candidates, the Republic Party has chosen the tactic of making it harder for minority groups to vote.
There is no explicit right to vote in the Constitution or its amendments. This omission is undemocratic because the concept of democracy implies that all members of the ‘demos’ (the whole people) must have the right to vote if they are to carry out the function of ruling (legislating). If the law is a product of a majority vote of the demos, only then can we infer that the form of government is a true democracy.
The right to vote is implicit in the Constitution and its amendments. Section 1 of the Fourteenth Amendment comes close to making the right to vote explicit:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
The right to vote is a privilege of citizenship. If voting is a privilege, and the exercise of the right to vote is one of the most important rights that citizens possess, then state legislatures should not be allowed to make or enforce laws that would “abridge the privilege” of voting.
The burden is on the states to prove that restrictions placed on how, when, and where to vote are necessary to prevent fraud. For example, if a state has no evidence that voting by mail or voting on Sunday does not substantially increase the number of fraudulent votes, then prohibiting all people to vote by mail or on Sunday is an instance of voter suppression that impacts minority groups (e.g. working, elderly and handicapped people) more than it impacts others.[3]
President Joseph R. Biden has called efforts to restrict the vote “undemocratic.” He is right. The very heart of a democracy lies in the right of all citizens to vote. The right to vote is nothing but a series of empty words if lawmakers of any party are allowed to put up unnecessary barriers for the sole purpose of preventing members of a rival party from exercising their right to vote.
4.The tyranny of gerrymandering
In U.S. politics, political or partisan gerrymandering is the practice of drawing the boundaries of electoral districts in a way that gives one political party an unfair advantage over its rivals. Racial gerrymandering is the practice of drawing boundaries in a way that dilutes the voting power of members of ethnic or linguistic voting groups.
The question is whether gerrymandering is a tyrannical practice. Does gerrymandering diminish the claim that the U.S. is a democracy? If gerrymandering is practiced only by a minority of legislators, then we could claim that the U.S. form of government is oligarchic. But in a democracy where there are two or more political parties (factions), gerrymandering is often a common practice of the majority party. If Republicans or Democrats are a majority in the legislature, then they will often use their political power to redraw the boundaries of electoral districts in their favor. The motive for this is to retain and secure majority power now and in the future.
Notice, however, that the word ‘gerrymander’ implies ‘unfair advantage’ by definition. If the boundaries of electoral districts set by the legislature do not give one political party or race an advantage over other parties or races, then it is not a gerrymander. The redrawing (redistricting) of an electoral district is a gerrymander only when the intent is to dilute the power of a political group by removing them from one district where they had political power and moving them into one or more districts where they will be in the minority.[4]
Gerrymandering occurs only in representative democracies and only in states that have two or more electoral districts.
Gerrymandering is not the same as voter suppression. Permanent suppression of the vote is a feature of oligarchy. In an oligarchy, the few people who govern the state have permanently suppressed the vote, not by the methods described above, but by replacing majority rule with the rule of the few. When an electoral district is gerrymandered by a majority party, it is a temporary change. In the next election cycle, a rival party might win the majority and restore the old districts
If the vote is temporarily suppressed by gerrymandering, then what is it about the movement or splitting of groups of voters (Black voters, rural voters, Democrats, Republicans, etc.) from one district to another that makes gerrymandering unfair?
Some would say that the gerrymander is unfair because it violates the principle that says, “one person, one vote,” that is, each person’s vote should count for one vote and not more than one. But people do not gain an extra vote or lose their right to vote when they are moved into a new electoral districts.
What people often lose in a gerrymander of electoral districts is their representation in the U.S. Congress by someone who will speak for their communities and promote their unique interests. This is especially true of Black and LGBTQ communities.[5]
It might also be said that the intentional dilution of the power of a distinct voting group results in harm to minority interests in a way that makes the gerrymander a morally wrong practice. Imagine a foot race between two runners in which one of them is forced to wear a brick tied to his left leg. It is unlikely that the runner with the brick will win the race. By analogy, if Black voters are moved from an electoral district where they are in the majority to one or more districts where they are in the minority, the “brick” they are forced to carry is the weight of being a part of a minority. This is what is meant by the “dilution” of political power. As a minority, their candidate for representation in Congress will probably not win a seat for many years. If the word “harm” means “a setback to a consequential interest” (Feinberg), then it is clear that Black people and other minorities have suffered and will continue to suffer harm by political and racial gerrymandering. Splitting and designing electoral districts for the sole purpose of diluting the power of one faction or race by another is a clear case of majority tyranny. It must be stopped, either by law or by constitutional amendment.
[1]Mill says nothing in On Liberty about laws prohibiting slavery or segregation. One reason for this can be found in a proviso or exception that he adds to the application of the Harm Principle. He writes that legal or social interference with the behavior of children and human beings who are members of a race that (like children) is still in its “nonage.” He further writes that “despotism is a legitimate mode of government in dealing with barbarians,” whom Mill describes as human beings who are not “capable of being improved by free and equal discussion.” The supporters of Jim Crow laws would have been delighted by these words.
[2] “Writing for the court, Chief Justice Earl Warren argued that the question of whether racially segregated public schools were inherently unequal, and thus beyond the scope of the separate but equal doctrine, could be answered only by considering “the effect of segregation itself on public education.” Citing the Supreme Court’s rulings in Sweatt v. Painter (1950) and McLaurin v. Oklahoma State Regents for Higher Education (1950), which recognized “intangible” inequalities between African American and all-white schools at the graduate level, Warren held that such inequalities also existed between the schools in the case before him, despite their equality with respect to “tangible” factors such as buildings and curricula. Specifically, he agreed with a finding of the Kansas district court that the policy of forcing African American children to attend separate schools solely because of their race created in them a feeling of inferiority that undermined their motivation to learn and deprived them of educational opportunities they would enjoy in racially integrated schools. This finding, he noted, was “amply supported” by contemporary psychological research. He concluded that “in the field of public education, the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” In Bolling v. Sharpe he stated that racial segregation of schools violated due process of law, and, in a reference to the Brown ruling, noted that “it would be unthinkable that the same Constitution [which prohibits racially segregated schools] would impose a lesser duty on the Federal Government” (Duignan).
[3] ”In practice, however, voter fraud is very rare, and the risk of widespread fraud is probably very minimal, even with all-mail elections.” (Morgan).
[4] For example, Republicans in the 2020 Florida Legislature voted for a congressional map that completely dismantled the 5th Congressional District, dividing its Black voters between four separate congressional districts. Black voters are outnumbered by white voters in every one of these redrawn districts, ensuring that if white voters vote for one candidate and Black voters another, the candidate supported by white voters will always win. As a result, an historically marginalized community lost its representation in Congress and political power for years to come. (Brower).
[5] In Florida, Tennessee, Utah and Kansas, “Republicans drew district lines in 2020 to boost Republican candidates’ chances at winning election to the House of Representatives. In the process, they sliced up distinct communities across multiple districts, diluting their voices and weakening their influence on their representation in government. The harm inflicted on these communities is incalculable. Republicans often defend partisan redistricting as something that is inconsequential, just a natural part of politics. These assertions ignore the negative consequences redistricting has on distinct communities and everyday Americans. By undermining fair representation, Republican gerrymandering strikes at the heart of representative democracy. Until we succeed in reining in the worst abuses of partisan gerrymandering, communities will be split apart, voices will be silenced and we will not be living up to the highest ideals we claim to cherish as Americans.” Op. cit., Democracy Docket.
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