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TYRANNIES OF THE
MAJORITY IN AMERICAN DEMOCRACY:
Segregation, Voter Suppression, and Gerrymandering
1. Justifiable limits to majority
power
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,
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.
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.
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.
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.
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.
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.
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).
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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