Well, Christmas is over – at least in the U.S. – so I went back to the news bowl. And found this bitter nut…. (More)
“Can a democratic majority rightly vote to enslave itself?”
The single hardest thing to persuade today’s students about is the theoretical limits to majority rule. I usually pose the question to students thus: can a democratic majority rightly vote to enslave itself? It is astonishing how vehement students are in insisting that the answer is Yes, became democracy means majority rule! End of discussion. The moral confusion becomes acute when the next question is: then what’s wrong with a majority voting to enslave a minority – whether racial or otherwise?
The solution to this problem is subtle, but involves an essential point: majority rule is the practical substitute for unanimous consent to the first principles of equal rights (which is not the same thing as equality – take note, liberals) and government by consent. And at the core of those first principles is the philosophy of the natural rights of individuals.
In fact the delegates to the Philadelphia Convention of 1787 and the state bodies that ratified the new document did vote to enslave a minority. Yes, slavery preexisted our Constitution. But the delegates to that convention debated whether to continue it, and a majority agreed to let it stand. Majorities in each state adopted that Constitution … with slavery intact.
Nothing in the “philosophy of the natural rights of individuals” precluded slavery in the Constitution. Indeed slave holders defended that ugly practice by citing … their ‘natural rights’ of property ownership.
And contrary to Hayward’s fetish, the Civil War did not end slavery in the U.S. The Emancipation Proclamation did not outlaw slavery or declare it unconstitutional. It merely proclaimed that slaves in ten Confederate states were now free men. Instead, the Thirteenth Amendment ended slavery in the U.S. And the Thirteenth Amendment was passed in Congress and ratified in the states by …
… majority rule.
The “philosophy of the natural rights of individuals” came up in the debates over the Thirteenth Amendment, just as such topics arose at the Philadelphia Convention and in many public debates between. But that “philosophy of equal rights” was not a body of “first principles” that trumped a majority consensus. It was just another argument raised in debate and, again, it was raised by both sides. Abolitionists argued that slavery defied the “natural law” of “equal rights.” And northern slave owners still insisted the “natural law” of “equal rights” included their property rights over human beings.
The abolitionists carried the day, not because their position aligned with “natural law,” but because they convinced majorities to vote with them … first in Congress and in enough state legislatures to ratify the amendment.
And if two-thirds majorities in the Senate and House voted to reestablish slavery – say, for white men – and majorities in three-quarters of the states ratified that amendment … then no “theoretical limits of majority rule” would prevent white men being bought and sold as slaves. To argue otherwise is to deny the procedures and history of the very Constitution that conservatives like Hayward claim to revere.
Moreover, ending slavery required a constitutional amendment, given its history in the Philadelphia Convention and U.S. Supreme Court precedents. But most laws don’t.
Certainly conservatives didn’t think Congress or state legislatures needed the Article V amendment process to pass ‘religious freedom’ laws to let Christians discriminate against LGBTs. Simple majority votes were enough for that, they insisted. Elections have consequences, they declared.
But when it comes to health care, or taxes … suddenly conservatives argue that a “philosophy of the natural rights of individuals” trump votes by majorities in the House and Senate. No matter that those majorities were elected. No matter that the U.S. Supreme Court upheld the 2010 Affordable Care Act. Conservatives still deny the law’s legitimacy … citing “first principles.”
In other words, anytime conservatives lose a debate and a majority reject their objections, the conservatives should still get their way … because of the “theoretical limits of majority rule.”
But our constitutional history shows no such “theoretical limits” exist. We did vote to enslave a minority, and our Constitution protected that until majorities voted to amend our civic charter. Political debates can and should include issues of morality and basic human rights. But in terms of self-government under law, those issues only matter if and when they convince a majority.
Hayward says liberals want to shut down debate. We don’t. We just want conservatives to respect majority rule when they lose a debate. And apparently they never will….
Photo Credit: Majority Rules Quotes
Good day and good nuts