In a 1789 letter to Thomas Jefferson, James Madison expressed his concern over the idea of individual rights and majorities:
“Repeated violations of these parchment barriers have been committed by overbearing majorities in every State. In Virginia I have seen the bill of rights violated in every instance where it has been opposed to a popular current. … Wherever the real power in a government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the Community, and the invasion of private rights is chiefly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the Constituents.”
The “parchment barriers” in question being the Constitution and subsequent laws of Virginia, Madison’s concern was centered around the basic differences between a Democracy, and a Republican government.
What are those differences?
The chief characteristic of a Democracy is rule by the majority, or more succinctly stated…mob rule. The individual, or any group of individuals are subject to Madison’s “popular current”, and are afforded no protections under the law, as Government is directed to take action by the people, via a vote cast by the majority of the registered, voting-age population. Whether a Direct Democracy, (author’s note: New England Town Meetings are not a good example of Direct Democracy, as the decisions reached are subject to both the Federal, and State Constitutions), or a Representative Democracy, both types of Democracies represent a system of government best described as Majority over Man.
Worthy of note, is that England lacks a Constitution, and that Thailand has had 17 charters and Constitutions since its 1932 transition from a monarchy to a democracy.
Some call this “the will of the people”, that sacred principle enshrined in Thomas Jefferson’s bold and daring “Unanimous Declaration”, and later described by Lincoln as “government of the people, by the people, for the people”, an acknowledgment that the ultimate repository of political power is the governed, not the government.
In drafting the Constitution, its authors took great pains to separate the Majority from the structure of the Federal government. The President is chosen by the Electoral College, Federal Judges are nominated by The President and confirmed by The Senate, and prior to the ratification of the Seventeenth Amendment, Senators were selected by State legislatures, rather than by direct vote.
In a Republican form of government, the Majority is strictly controlled by a Constitution that places strict limitations on the actions of government. The verbiage of the First Amendment to the Constitution offers a perfect example:
“Congress shall make no law…”
So, even if faced with the demand of a majority of voters, Congress is explicitly forbidden to make laws that would run contrary to the Amendment’s limitations and protection of individual liberties. Seeing how Amendments can only be voided via the ratification of another Amendment, the First Amendment is arguably untouchable, as ratifying an Amendment to void it would be disallowed by the “Congress shall make no law” restriction.
A Republican form of government protects the God-given, unalienable rights of the individual against the will of the Majority, therefore protecting the rights of Minorities, and by extent, the liberties of the people in general. The violation of one individual’s unalienable right IS the violation of all our unalienable rights.
Democrats have long championed the concept of Presidential elections being decided by a majority vote, rather than the accumulation of State electors, while some Republicans complain about tyranny by “unelected and unaccountable” Judges. These attacks putting the barriers separating mob rule and individual liberties, set in place by the Drafters of the Constitution, at risk of crumbling. One must wonder what the unsuspected results may be.
Perhaps an insight into these unsuspected results may be found in the controversy surrounding California’s Proposition 8.
Among the most liberal States in the Union, California’s registered voters favor the democratic Party over the GOP by a considerable margin. California Courts tend to err toward the liberal sides of issues, and the notion that “changes begin in California, then move East” is an accepted fact with the American people.
Yet, against all odds, California voters upheld Proposition 8, amending the State’s Constitution to define “one man, one woman”as the only acceptable definition of marriage in the State.
How this came about has been the subject of much speculation, at the core of which being the idea that Black Americans, while a major Democratic constituency, are in fact, socially conservative in nature. The unusually large turnout of black voters as a result of Barack Obama’s historic presence on the ballot, gave conservative same-sex marriage opponents an unexpected, and powerful ally.
The State Constitution of California “provides that an amendment to that Constitution may be proposed either by two-thirds of the membership of each house of the Legislature or by an initiative petition signed by voters numbering at least 8 percent of the total votes cast for all candidates for Governor in the last gubernatorial election, and further specifies that, once an amendment is proposed by either means, the amendment becomes part of the state Constitution if it is approved by a simple majority of the voters who cast votes on the measure at a statewide election.” Source
So the only viable course of action left for supporters of same-sex marriage in California, was to argue that the issue should not be settled by a simple majority vote.
Democrats set about the business of arguing against Democracy, while conservatives defended California’s living Constitution, and the concept of a Direct Democracy.
The California Supreme Court ruled that Proposition 8 was “valid and enforceable” by virtue of the State’s Constitution simply majority requirement, but did not annul any same-sex that occurred while the practice was legal in the State, directing the State to recognize them. Now opposing sides are set to square off again, with suits challenging the Constitutionality of Prop. 8 and the Defense of Marriage Acts.
The controversy surrounding Prop. 8 in California may prove to be the most eloquent defense for the Founder’s establishment of a Representative Republic to date. The outcome may very well not be one to the liking of Conservatives, as I believe that our Constitution, the real will of the people of the United States, will protect the right of the individual, and the minority’s unalienable, God-given right to pursue happiness.
The Fourteenth Amendment to the Constitution states that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”, and goes on to mandate that no person shall be denied the “equal protection of the law”, even if the majority votes to deny it.
Black voters in California may wish to remember that in 1967, when the US Supreme Court invalidated laws prohibiting interracial marriages, 72% of the population supported those laws, but our Courts found an inequity, and moved to correct it against the vociferous opposition of the Majority.
They did so because the true will of the people is enshrined in our Constitution, and not in the momentary whim of the majority.
Democracy failed Democrats in California, and now they are forced to acknowledge that the rights of the individual under a Representative Republic, are far stronger than the whim of Madison’s “popular current”, or even the will of an Omnipotent Majority under a State Constitution that upholds the principle of Direct Democracy.