Majority Rules
December 1, 2001
by Jack Rabbit

That the majority rules is the American way. But what if the majority is wrong? There's nothing new about that. Nobody is so naïve as to believe that the majority is always right. The very ideas of our Founding Fathers and those who formed the social conscience of America have been a struggle to balance the concept of majority rule with the demands of justice.

A Washington Post/ABC News poll released November 28 reports that nearly six out of ten Americans agree that suspected terrorists should be tried in secret military courts and that seven in ten believe that the government is doing enough to protect the civil rights of suspected terrorists, of Arab- and Muslim-Americans and of non-citizens from Islamic countries. These poll numbers should not surprise anybody for several reasons. First, most Americans are getting their news from sources that are biased towards the Bush administration and its corporate agenda; even if there is a discussion about civil liberties, it has been preceded with a message of "Trust Bush, he's doing the right thing" that spills over into the discussion. Second, most Americans are still frightened over the September 11 attacks and believe that draconian measures are justified; many are still afraid of their shadows. Finally, most Americans do not feel that they will be directly affected by such measures; most of us will not questioned by the FBI let alone arrested and subjected to secret trials. Those who are suspected of terrorist activity, the reasoning goes, are not good people and don't deserve constitutional protections. Bush and Ashcroft have said as much. The problem with this reasoning is that it assumes that suspicion is guilt, which comes back to one of the reasons why the secret military court plan is inconsistent with the concepts of justice in a free and open government, even in times of war. That a majority supports it today still doesn't make it right.

Thus, we who already oppose secret military tribunals are trying to persuade our fellow citizens to join our cause on abstract grounds; this will change when Americans start to see that the disadvantages of the proposed tribunals outweigh the benefits of any increased security it brings. That some European nations have suggested that terror suspects will not be extradited to the United States to stand trial before such a court may be the first act that will make some in that majority reconsider their position. There will be sooner or later a documented case of gross injustice; that will erode yet more support for Bush's star chambers. It is too soon for those of us who are sickened by Bush's assault on the Bill of Rights to be too concerned about the initial public support it is getting. If we are patient and persistent, the majority will come around to our point of view. Hopefully, the innocent will not have to endure too much injustice before that happens.

There is nothing new in the lack of support for civil liberties or in disrespect by the majority for justice for the minority. The Frenchman Alexis de Tocqueville observed this phenomenon in his classic, Democracy in America (George Lawrence translation, New York: Harper & Row, 1966), written between 1835 and 1840. Tocqueville called this phenomenon "the tyranny of the majority." He, too, was troubled with the prospect of a majority imposing injustice on a minority. "I regard it as an impious and detestable maxim that in matters of government the majority of a people have the right to do everything, and nevertheless I place the origin of all powers in the will of the majority," says Tocqueville in Chapter 7. "Am I in contraction with myself?" Classic political theory up to Tocqueville's time might well have held that he was; Plato certainly thought that no democratic society could be truly just. Our own Founding Fathers didn't trust democracy. Hamilton's contempt for democracy knew no bounds. Said Madison in The Federalist Papers (no. 10): "[I]t may be concluded that a pure democracy, by which I mean a society consisting of a small number of citizens who assemble and administer government in person, can admit no cure for the mischiefs of faction. A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert results from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual. Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as violent in their deaths." However, the revolutions of the romantic era challenged intellectuals to resolve these two opposing forces, democracy and justice. Madison's solution to the problem was in a proposed new structure of government, which he called a republic. In Madison's republic, those who govern do so as representatives of the people (as in a democracy), but the structure of the government would consist of three branches — legislative, executive and judicial — and that each of these three branches would each have separate and distinct powers that balance the powers of the other two. The republican structure of the government, with its checks and balances and separation of powers, would temper the tyrannical impulses of majority rule.

By the time Tocqueville toured America, the new nation had become, in a limited sort of way (certainly limited to white men), a democratic society. Over half a century after the adoption of the Constitution urged by Madison, Tocqueville witnessed some of the same drawbacks of democracy that were foreseen by Madison. Tocqueville asked where an individual who suffers injustice at the hands of an unsympathetic majority should turn for redress. All public institutions, including the courts, are somehow manifestations of the unjust majority. In this, Tocqueville took faith in the Madisonian separation of powers that characterizes American government.

"[S]uppose you were to have a legislative body so composed that it represented the majority without being a slave to its passions, an executive power having a strength of its own, and a judiciary independent of the other two authorities; then you would still have a democratic government, but there would be hardly any remaining risk of tyranny." Thus, Tocqueville, examining the practice of the American republican form of government, pronounced Madison's vision a success.

We can see this process at work already. The institutional processes inherent in the system of separation of powers may yet bring down Bush and Ashcroft and their evil alternate court system. Congress, initially spineless in caving to Bush's request for extraordinary powers, is now beginning to question the administration's use of those powers. Moreover, the executive order establishing the secret military tribunals was issued without any consultation with Congress. Even some members of Congress who might be inclined to go along with such a draconian decree resent being left out of the loop. On November 28, Democratic Senators on the Judiciary Committee, joined by Republican Senator Arlen Spector of Pennsylvania, grilled Assistant Attorney General Michael Chertoff about the decision to authorize secret tribunals. Attorney General Ashcroft himself will testify before the same committee in a few days. If the questioning of Chertoff is any indication, Ashcroft will face sharper questions than he did during his confirmation hearings.

In addition to the Senate hearings, an independent judiciary may also serve to play a role in putting a stop to these abominable tribunals. Although Bush's executive order gives defendants no right of judicial review, the famous case Marbury v. Madison (5 US 137, 1803) may be an ace up the sleeve of tribunal opponents. In this case, the Supreme Court for the first time ruled the act of another branch of the government unconstitutional. In his opinion, Chief Justice John Marshall established the broad right of the court to review acts of the other branches. Said Marshall in the opinion: "It is emphatically the province and duty of the judicial department to say what the law is." In other words, in spite of the executive order's language denying a defendant's right to appeal, a court may decide to consider it anyway. Furthermore, another famous Court decision, Ex Parte Mulligan (71 US 2, 1866), also appears to fly in the face of Bush's plans to institute secret military tribunals. In this case, arising out of President Lincoln's suspension of the right of habeas corpus during the Civil War, the court ruled that civilians could not be tried in military courts in districts where civilian courts were operating. One may ask if these historic court cases, rather than any concerns about privacy, are Mr. Ashcroft's real reasons for not releasing names of detainees. As the ACLU has pointed out, it is very hard to serve a writ of habeas corpus if one has no information on the detainee. Is it possible that Mr. Ashcroft really has no faith in the legal foundation on which these secret tribunals rest?

We, although still a minority, must keep up the vigil for civil liberties in the face the Bush administration's injustice. We must not be silent. We must speak out at every turn, at every opportunity. We will not recognize these courts as legitimate; we will not recognize their verdicts as valid; we will regard the punishment as unlawful, even as murder. We must speak out, if for no other reason, than because we are right. And, because we are right, we are not really a minority. During the Mexican War, Henry David Thoreau refused to pay a poll tax to the state of Massachusetts that was raised to support the federal government's war effort. Thoreau, an abolitionist, thought the war mostly benefited slave owners. He spent some time in jail until the tax was paid on his behalf by a third party. In his famous essay, Civil Disobedience, Thoreau wrote of the issue of obedience to the law that he considered unjust, even if the government that made the law was mandated democratically by the rule of the majority. For Thoreau, his conscience still held primacy. It was not a question to wait until he had persuaded his fellow citizens to repeal the law he considered unjust. "[T]hose who call themselves abolitionists should at once effectively withdraw their support, both in person and property, from the government of Massachusetts, and not wait until they constitute a majority of one," Thoreau said. "I think that it is enough that they have God on their side, without waiting for the other one. Moreover, any man more right than his neighbors constitutes a majority of one already."

With those words, Thoreau gave voice to a new idea. Like Madison and Tocqueville, Thoreau did not believe for a minute that numerical majorities would always carry the weight of moral justice. However, Madison and Tocqueville each offered institutional solutions to the problem in the form of checks and balances. Thoreau, on the other hand, offered the words and deeds a dignified man of conscience as the counterweight to the tyranny of the majority. A man of conscience with the courage of his convictions is a majority of one.

Thoreau, in any immediate sense, lost his argument about the Mexican War. The war was prosecuted and won; Texas and California were both admitted to the union, one as a slave state and the other as free. Yet, a few years later, another bloody war was fought that ended in the abolition of slavery. Thoreau did not live to see his vindication, but we today honor his memory for his unique and solemn act against slavery.

Since Thoreau made his stand, others have followed. When Eugene Debs went to prison for speaking out against the draft in 1918, when women demanded the right to vote, when workers fought for the right to organize for better working conditions and higher wages, when Martin Luther King lead civil rights marchers through the South and tore asunder the unjust Jim Crow laws, when opposition to the unjust and imperialist war in Vietnam galvanized, Thoreau's spirit walked with them. Each of these began as unpopular causes in some way, but each cause was carried on by men and women of conscience who each constituted a majority of one. In time, in most of these causes, that initial tyranny of the majority that initially stood in the way of justice gave way, and just cause became the majority view and the institutions of government soon worked to enact new laws consistent with the new, more enlightened majority.

Perhaps it is too soon to think in terms of civil disobedience in the face of Ashcroft raids or Bush's star chambers. But it is not too soon to damn the public opinion polls and let that transient majority know how we feel and why we feel as we do and that we will not go away until we win them over to our point of view, because it is right. We must oppose these unconscionable and unjust secret courts in thought, word and deed. We must each resolve to be a majority of one.