As a Jew, he was anxious to avoid practices that allowed school children to be treated differently because of their religion. The case, Minersville School District v. Gobitis , dealt, he said, "with an interest inferior to none in the hierarchy of legal values. National unity is the basis of national security. He was, however, as most political progressives had been for many decades, an advocate of judicial restraint, and he thought the Court should acknowledge that the elected school board had made a defensible, meaning reasonable, choice expressing the will of a majority of its constituents.
Five members of the majority had been appointed to the Court by President Franklin Roosevelt, whose anger with the Court's refusal to be deferential toward Congress's enactment of New Deal legislation led to his ill-fated attempt to "pack" the Court. Minersville's flag-salute law, wrote Stone, was "unique in the history of Anglo-American legislation" because it forced students "to express a sentiment which, as they interpret it, they do not entertain, and which violates their deepest religious convictions.
As Feldman says, "In , the idea that the Court should protect minorities from the majority was not the commonplace it would later become. Stone had first introduced it in , burying it in a footnote. Taking their cue from the Court, many communities made flag saluting mandatory. There was an upsurge of violence against Witnesses, including a riot by a mob of 2, who burned down the Witnesses' Kingdom Hall in Kennebunk, Maine. Then in , with a world war raging, the Court ruled on another flag-salute case concerning Jehovah's Witnesses, for the purpose of overturning the decision it had reached just 36 months earlier.
Writing for the majority in a decision, Justice Robert Jackson, who had not been on the Court when Gobitis was decided, said:. The very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts This was Lincoln's principle articulated as a constitutional and even judicial philosophy.
First as a graduate student, then briefly as a professor of political philosophy, and now for more than four decades as a Washington observer of American politics and governance, I have been thinking about the many vexing issues implicated in these two flag-salute cases.
The issues include the source of American rights, the nature of the Constitution and the role of the Supreme Court in construing it, and what fidelity to democracy requires regarding the rights of majorities. This is why I say that the Kansas-Nebraska Act reverberates in my professional life: It forced the nation and, decades later, me, to confront a question that constantly takes new forms but never goes away.
It is the question of the limits of our commitment to majority rule. It is the question of how majoritarian we should be in our public life. The question concerns two daunting quandaries that are, I hope and assume, at the center of American legal thought, education, and scholarship.
The first is the nature and purpose of a written constitution. The second is the legitimacy of judicial review, and particularly whether judicial review really does involve what has been called a "counter-majoritarian difficulty. There are those, and they might be an American majority, who believe that majority rule is the sovereign American value that trumps all others.
They believe that the degree of America's goodness is defined by the extent to which majorities are able to have their way. Such people are bound to believe that it is the job of the judicial branch of government to facilitate this by adopting a modest, deferential stance regarding what legislatures do. Many also implicitly believe that such an attitude should shape the attitude of courts toward what executive branch officials and agencies do.
Here, judicial deference is said to be dictated by the plebiscitary nature of the modern presidency. Many have argued that, because presidents alone are elected by a national constituency, they are unique embodiments of the national will, and hence should enjoy the maximum feasible untrammeled latitude to translate that will into policies.
So, we must ask: How aberrant, or how frequent, are abusive majorities? A related but different question is: When legislatures, which are majoritarian bodies, act, how often are they actually acting on behalf of majorities? My belief, based on almost half a century observing Washington, the beating heart of American governance, is that as government becomes bigger and more hyperactive, as the regulatory, administrative state becomes more promiscuously intrusive in the dynamics of society and the lives of individuals, only a steadily shrinking portion of what the government does is even remotely responsive to the will of a majority.
So, paradoxically, as government becomes bigger, its actions become smaller; as it becomes more grandiose in its pretensions, its preoccupations become more minute. Ali Bokhari emigrated from Pakistan in , settled in Nashville, became a taxi driver, and got a very American idea: He started a business to serve an unmet need. He bought a black Lincoln sedan and began offering cut-rate rides to and from the airport, around downtown, and in neighborhoods not well served by taxis.
After one year he had 12 cars. Soon he had 20, and 15 independent contractors with their own cars. And he had a website and lots of customers. Unfortunately, he also had some powerful enemies.
The cartel of taxi companies had not been able to raise their rates since Bokhari came to town. Those companies, in collaboration with limo companies that resented Bokhari's competition, got the city government's regulators to require him to raise his prices and to impose many crippling regulations. She had little education and no resources, besides her talent for making lovely flower arrangements, which a local grocery store hired her to do.
It threatened to close the store in order to punish it for hiring an unlicensed flower arranger. Meadows tried but failed to get a license, which required her to take a written test and to make four arrangements in four hours. Then it advocates a non-majoritarian polity. Finally, on the basis that consensus voting would be more inclusive and accurate, and therefore more democratic, it outlines that which could be a new definition of democratic rights.
Majority voting in parliaments and in referendums is inadequate. If the outcomes from two different measures are different, at least one of those measures must be inaccurate. Furthermore, if majority voting is indeed inaccurate, ergo, it is not very democratic! The latest incident took place in the UK in June when, by a margin of just 3. Earlier uses of this simplistic binary methodology took place in the Caucasus, the Balkans and Northern Ireland, where again the choices were stark, where again there was not even the possibility of compromise.
The latter, however, is actually an inaccurate measure of collective opinion. It was first used by some, the rich males, in the forums of ancient Greece where, it seems, it worked quite well.
This should certainly be the case in plural societies with supposedly pluralist democracies. Logically, majority voting is ill-suited for any debate involving more than just two possibilities.
Consider a debate on a motion with two proposed amendments. If just three people use majority voting, and if these three have the following sets of preferences:.
Firstly, on the choice of amendment: B v C. Two people prefer C to B, so the more popular amendment is C. The second vote is on whether or not to accept this preferred amendment: A v C. Again, two people prefer A to C, so the motion remains, unamended. The debate now focuses on whether or not to accept the substantive, the motion unamended, A v D. And again by two votes to one, the result is A. But look again at those three sets of preferences: a majority of two prefer B to A. The answer, then, in this particular example, is just plain wrong.
To take a second example, consider a similar debate where there are three possible amendments. The first vote, a choice between the first and second amendment, B and C, gives victory to B. This is then compared to the third amendment, which D wins. This chosen amendment is then tested against the original, D v A, but a majority prefers A. And this substantive, the motion unamended, is then voted on, A v E, and A is the winner.
But all three voters prefer C to A. Yet again, the outcome is wrong. Sadly, despite inaccuracies and, more to the point, despite many horrific consequences see below , majority voting, this most confrontational form of decision-making is still used in countless parliaments.
Furthermore, in some post-conflict plural societies, it is even advocated as a way of resolving inter-communal disputes and enshrined in peace agreements. In most parliaments, on most complex issues, unanimity seldom exists. Current democratic practice therefore demands that decisions should be subject to a vote. And that vote is usually binary. Better the greater good of the greater number, of course, than any minority diktat. But, as noted above, binary voting can be hopelessly inaccurate. This is not least because that opinion must be identified earlier if it is to be already on the ballot paper.
In theory, in a small forum such as the UN Security Council where there are only fifteen members, 6 it is possible for the participants to talk and discuss, to propose and effect change, so that the final draft does indeed reflect the will of all concerned. In any larger forum, however, the accurate identification of the collective will by a majority vote is next to impossible; a ratification might be feasible, if that is the authors of the question on the ballot paper have consulted widely or guessed wisely; but logically, an identification is impossible.
So in practice, in a parliament of hundreds or a nation of millions, any use of a binary voting procedure gives far too much power to those who set the question. Little wonder, then, that majority voting has been used by numerous dictators, from Napoleon and Lenin via Hitler to Pinochet, Gaddafi and Saddam Hussein, Emerson, p. Sadly, the UK Electoral Commission is also mesmerised by the mystique of the majority and refuses to consider any form of multi-option voting.
Or, to take an example from overseas, two-option voting in a two-party democracy can often be dysfunctional. In the USA, that which is introduced under the Democrats is then replaced by the Republicans … until the next election, when it all goes back again … the politics of the pendulum. In , a referendum was held in Wales on the question: devolution or status quo? Plaid Cymru, the Welsh nationalist party, wanted independence to be on the ballot paper as well, Wigley, p.
In the vote itself, So devolution won. If independence had also been on the ballot paper, and if at least 1. So, in a plurality vote, the status quo would have won. That referendum, therefore, did not necessarily identify what the Welsh wanted, or even what the majority of the Welsh wanted; 10 although lots of electoral officials were counting the ballots with all due diligence, that ballot identified with mathematical precision only one thing: that Mr Blair wanted the Welsh to want devolution.
Similarly, in Kosova. So, when using a two-option vote on a multi-option question, even a Stalinist majority might mean very little. A majority vote, then, cannot best be used to identify a majority opinion. In many cases, as in Wales and Kosova, it identifies with certainty, not the collective will of the many who vote, but rather the opinion of the few, or maybe just the singleton, who wrote the question. Majoritarianism was also part of the problem in the Soviet Union where as it happens, the original Russian word for this term was bolshevism.
From then on, in a series of seemingly binary contests, the Bolsheviks under both Lenin and Joseph Stalin attacked various minorities, both within the party against Kamenev and Zinoviev, then Trotsky, and later Bukharin, as well as in society at large, against the whites, the bourgeoisie, then the kulaks, and later the Mensheviks if not indeed, as in the case of Bukharin, some of their own Bolsheviks.
The process lasted for hours. A third horror occurred in Africa, in Rwanda. In the colonial era, the West practiced a form of minority rule: the white man was on top; next came the merchants, the Tutsis; while the workers, the Hutus, were at the bottom of the pyramid. In cases of doubt, i. After WWII, the authorities changed their policy and introduced the very opposite of their own minority administration, namely, majority rule.
So the majority could now seek revenge on the minority. Majoritarianism, then, has been a cause of terrible suffering. Binary vote outcomes can also be inaccurate if not plain wrong. Yet the belief therein and practice thereof are seldom questioned. The mystique remains. The right was designed to be the principle by which a colonised people could solve the external problem of imperialism and thus gain their independence.
It was never intended to be the basis by which a people could resolve any internal problems of secessionism or irredentism. Logically, self-determination by a majority vote is a recipe for perpetual conflict, for every majority may have a minority. If then a majority of that minority wishes to opt out of the whole, it may.
If within that minority there is a smaller minority, and if a majority of that smaller minority so wish … and the process could continue … for ever! There must, surely, be a better way. As in Bosnia, so too in many other divided societies, come the ballot itself, the members of the majority turn out to vote because they know they are going to win; while the minority, knowing that they are bound to lose, abstain, or boycott, or worse, resort to violence.
A minority might take part, as in Quebec, 16 if the outcome is too close to call. In other circumstances, there is often simply no point. Despite all of this horrific evidence, the world still believes in majority voting. As in the Balkans, the logic is again brutal: any faction could define a border—of which of course, as in other continents, both history and geography are replete—start a campaign, resort to violence, engage in peace talks, hold a referendum, and thus succeed in its aspiration.
The first consequence occurred just six months after the CPA was signed: renewed violence in the long-since troubled region of Darfur. Next, in in South Sudan, This box of grief and misfortune might be bigger than at first envisaged. Indeed, introducing into Africa the right of self-determination by the practice of majority voting may well be one of the defining mistakes of the 21 st century: Nigeria could divide, the Christian South as opposed to the Moslem North; the same chasm is evident in Central African Republic, which is already falling apart; the Ivory Coast could also split; and if this right were to be exercised in the DRC, there could be mayhem.
In all probability, there would also be terrible bloodshed if a referendum were to be held in accordance with the UN resolution of in Kashmir. This has not prevented Russia from offering support to separatists beyond its own borders, however, in Abkhazia in Georgia, for example, in Trans-Dniestr in Moldova, and now in Ukraine, in Crimea and Donetsk. A degree of pluralism could have been demonstrated in Scotland in the referendum. It also vividly expresses the fundamental concern of the founding fathers of modern democracies, namely the risk that a sufficiently broad interest-group might form a majority and dominate the minority, depriving it of its rights, its freedoms.
In this scenario, democratic regimes are potentially no less tyrannical than authoritarian ones; the tyranny of the many simply replaces the tyranny of the one or the few. It is unjust. In utter frustration, he damns the tyranny of the majority for stifling truth and justice. He concludes that the majority can be terribly wrong, too. The validity of the majority depends solely on the processes that lead to decision-making on the part of the electorate. Can we say that they are sufficiently informed to make the decisions they finally translate into votes?
If the electorate is educated and can take informed decisions, we can reasonably conclude that their decisions are valid. But then, there are many extraneous considerations. Though caste and community should not be used to lure or influence the voters, as per law, this code is often breached with impunity. Most political parties resort to it, vitiating democratic government formation and decision-making. Money and muscle power also play their role rather blatantly in our electoral politics.
Criminals have infiltrated politics in a big way, and no political party is blameless in this regard. This is the most deplorable influence of all. Black money finds no better channel than elections to splurge it on — with remarkable returns. Most winning candidates have tons of ill-gotten money. They spend several crores to win an election. If, then, it were possible to identify the collective will of the elected chamber by a procedure which was non-majoritarian, the logic on which the principle of majority rule is based would become obsolescent.
In which case, governance could be based on an all-party coalition. Accordingly, this chapter examines majoritarian decision-making and electoral systems. It questions the democratic legitimacy of forming a majoritarian government, be it a single-party administration or a multi-party coalition.
It looks at two other democratic structures, the first consociational and the second consensual, and it analyses other decision-making methodologies. Finally, it outlines a taxonomy of decision-making. Skip to main content. This service is more advanced with JavaScript available. Advertisement Hide.
Authors Authors and affiliations Peter Emerson. Chapter First Online: 17 January This process is experimental and the keywords may be updated as the learning algorithm improves.
This is a preview of subscription content, log in to check access. Baker, J. Belfast: The de Borda Institute. Google Scholar. Belfast Agreement. Belfast agreement.
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