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 na´ve 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
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
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
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.