How does majority rule work in a democracy

Majority rule is limited in order to protect minority rights, because if it were unchecked it probably would be used to oppress persons holding unpopular views.

Unlimited majority rule in a democracy is potentially just as despotic as the unchecked rule of an autocrat or an elitist minority political party. In every constitutional democracy, there is ongoing tension between the contradictory factors of majority rule and minority rights. Therefore, public officials in the institutions of representative government must make authoritative decisions about two questions.

When, and under what conditions, should the rule of the majority be curtailed in order to protect the rights of the minority? When those representatives debate issues in the student council or the state legislature or the national Congress, a similar vote determines the will of the majority. Deciding by numbers is a practical way of handling differences. At the other end of the spectrum, consensus means that every decision requires the agreement of everyone.

This process works well in small groups, but on the state and federal level, it would make government move even more slowly than it does now. Majority rule lets a decision-making body get on with its business as soon as more than half of the participants are satisfied. In theory, every citizen has a voice at the ballot box.

At various times in our history, lack of minority representation in government has allowed the majority to abuse minority rights:. Highlighted vocabulary will appear in both printed versions. Our work has evolved in the last 30 years, from reducing prejudice to tackling systemic injustice.

Grade Level. Its supposed purpose when created in was to combat diseases. It has, however, long since succumbed to what is called "regulatory capture. At the time the monks began making and selling caskets, nine of the board's 10 members were funeral directors, one of whose principal sources of income is selling caskets. In the s, Louisiana had made it a crime to sell "funeral merchandise" without a funeral director's license. The monks would have had to earn 30 hours of college credits, and to apprentice one year at a licensed funeral home to acquire skills they had no intention of using.

And their abbey would have been required to become a "funeral establishment" with a parlor able to accommodate 30 mourners.

And they would have had to install an embalming facility, even though they only wanted to make rectangular boxes, not handle cadavers. In other words, the monks would have had to stop being monks. The law requiring all this rigmarole served no health or sanitary purpose: Louisiana does not stipulate casket standards, or even require that burials be done in caskets. Obviously, the law that was brought to bear against the monks is an instrument of unadulterated rent-seeking by the funeral directors to protect their casket-selling cartel.

Rent-seeking occurs when private interests bend public power to their advantage in order to confer favors on themselves, often by imposing impediments on actual or potential competitors. Now, you may be thinking that I have wandered far from the Kansas-Nebraska Act, Abraham Lincoln, and the work of a political commentator. But the question raised by these examples of abject rent-seeking is a question about the proper limits of the power granted to majoritarian institutions. The government action used to prevent a Pakistani immigrant from entering into his chosen profession of operating a transportation company, and the government action that blocked an aspiring flower arranger from exercising her skill and consigned her to die in poverty, and the government action that blocked the monks from supporting themselves by making and selling wooden boxes were violations of a basic right.

All three actions, and thousands like them from coast to coast, should be, but usually are not, considered unconstitutional.

They should be struck down as violations of a natural right, the right that Lincoln understood as the right to free labor, the right that was, of course, at the core of the slavery crisis.

It is the unenumerated, but surely implied, constitutional right to economic liberty. But laws abridging that right survive and proliferate because courts at least since the New Deal have stopped doing their duty to defend this economic liberty against its rent-seeking enemies.

In a sense, the problem began in Louisiana 16 years before the monks' monastery was founded in It began across Lake Pontchartrain from the monastery, in New Orleans. That city had awarded some rent-seeking butchers a lucrative benefit. The city had created a cartel for them by requiring that all slaughtering be done in their slaughter houses. Some excluded butchers went all the way to the U.

Supreme Court to challenge this law. They lost when, in the Slaughterhouse Cases, the Court, in a decision, upheld the law that created the cartel. In doing so, the Court effectively expunged a clause from the 14th Amendment. The clause says: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. It construed that phrase so narrowly, in fact, that the phrase essentially disappeared from constitutional law.

A melancholy fate for a phrase that was intended as shorthand for the full panoply of rights of national citizenship. Intermittently since then, and steadily since the New Deal, courts have abandoned the protection of economic rights, including the fundamental right to earn a living without arbitrary and irrational government hindrances. Instead, courts have adopted the extremely permissive "rational basis" test for judging whether government actions are permissible.

Indeed, in , the 10 th Circuit Court of Appeals upheld a notably ludicrous Oklahoma law requiring online casket retailers to have funeral licenses. To obtain such licenses, applicants are required to take several years of course work, serve a one-year apprenticeship, embalm 25 bodies, and take two exams.

Upholding this travesty, the court wrote, with breezy complacency, that "while baseball may be the national pastime of the citizenry, dishing out special economic benefits to certain in-state industries remains the favored pastime of state and local governments.

The court did not say, but it might as well have said, that majority rule requires that courts only reluctantly and rarely engage in the judicial supervision of democracy, because majority rule is the essence of the American project. There are, however, two things wrong with this formulation. First, it is utterly unrealistic and simpleminded to think that there is majority support for, or majority interest in, or even majority awareness of, even a tiny fraction of what governments do in "dishing out" advantages to economic factions.

Does anyone really think that, when the Nashville city government dispenses favors for the taxi and limo cartel, it is acting on the will of a majority of the city's residents?

Can anyone actually believe that a majority of Louisianans give a tinker's dam about who sells caskets or arranges flowers? The second fallacy behind a passive judiciary deferring to majoritarian institutions is more fundamental.

It is rooted in the fact that we know, because he said so, clearly and often, that Lincoln took his political bearings from the Declaration of Independence. We know that Lincoln believed, because the Declaration says so, that governments are instituted to secure our natural rights.

These rights therefore pre-exist government. And they include the unenumerated ones affirmed in the Constitution's Ninth Amendment: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

Which brings me, by an admittedly circuitous route, back to , to the Kansas-Nebraska Act, and to Lincoln's noble recoil from "popular sovereignty in the territories. For many years and for several reasons, many of my fellow conservatives have unreflectively and imprudently celebrated "judicial restraint. It is, however, high time for conservatives to rethink what they should believe about the role of courts in the American regime.

Another reason many conservatives favor judicial deference and restraint is what can be called the conservative populist temptation. But the essential drama of democracy derives from the inherent tension between the natural rights of the individual and the constructed right of the community to make such laws as the majority deems necessary and proper.

Natural rights are affirmed by the Declaration of Independence; majority rule, circumscribed and modulated, is constructed by the Constitution.

Timothy Sandefur of the Goldwater Institute in Phoenix, in his book The Conscience of the Constitution , rightly emphasizes that the Declaration is not just chronologically prior to the Constitution, it is logically prior.

Liberty is the goal at which democracy aims, not the other way around. The progressive project, now entering its second century, has been to reverse this by giving majority rule priority over liberty when the two conflict, as they inevitably and frequently do. This reflects the progressive belief that rights are the result of government; they are "spaces of privacy" that government "has chosen to carve out and protect.

If the sole, or overriding, goal of the Constitution can be reduced to establishing democracy, and if the distilled essence of democracy is that majorities shall rule in whatever sphere of life where majorities wish to rule, then the Court is indeed a "deviant institution.

It is excessive to say, as often has been said, that the Constitution is "undemocratic" or "anti-democratic" or "anti-majoritarian. The principle of judicial restraint, distilled to its essence, frequently is the principle that an act of the government should be presumed constitutional and that the party disputing the act's constitutionality bears the heavy burden of demonstrating the act's unconstitutionality beyond a reasonable doubt.

The contrary principle of judicial engagement is that the judiciary's principal duty is the defense of liberty, and that the government, when challenged, bears the burden of demonstrating that its action is in conformity with the Constitution's architecture, the purpose of which is to protect liberty.

The federal government can dispatch this burden by demonstrating that its action is both necessary and proper for the exercise of an enumerated power.