The American Family Gazette
Volume II, 1001
I heard a proponent for the right of Gays to marry say on the news tonight, “The majority does not get to legislate the rights of the minority.” This was in connection with the start of the federal court case to over-turn the outcome of California’s Proposition 8 last fall. On the surface, it’s hard to argue with his point. Why? Because, in fact a good—if somewhat libertarian— argument can be made that individual rights are not subject to a public vote. It borders on the democratic issue of the “tyranny of the majority.” But does this issue conflict with another important democratic principle, namely, the will of the people, as expressed through the vote? And, where is the issue of justice in all this?
How do you reconcile the “tyranny of the majority” with the “will of the people,” and still preserve rights—expressed or implied— of minorities under a political system where it is agreed that the majority rules while “justice,” which concerns itself with the proper ordering of things and persons within society, need be a factor?
If political majority equals fifty point one percent (50.1%) of the vote, it carries. What of the other 49.9%, only fractionally less than the majority? They’re out of luck. Is this, then, a tyranny? Yes, in some respects. But under our system, it—the majority— is also the will of the people. But consider: what if the vote had shifted just two-tenths of one percent? Then those tyrannized would be those tyrannizing. Either side thus becomes the “will of the majority, by a very insignificant difference that leaves almost exactly half the voters dissatisfied with the outcome. This sounds questionably fair, especially if you define justice as fairness, as many do.
When the outcome is that close on an issue almost evenly dividing the electorate it probably isn’t a good outcome. But if you change the rules to require a “super majority” of the vote to carry the day, you clearly have a minority able prevent a tyranny of the majority; but it also thwarts the “will of the majority.”
What a dilemma. Back to the question:
How do you reconcile the “tyranny of the majority” with the “will of the people?” The two concepts are not necessarily in conflict, but clear definition is a prerequisite to determining the difference. In our society, we take the issue to a court of appeals to decide if rights have or have not been denied, diminished,, terminated or otherwise imposed upon for any person, or class of person. This doesn’t mean that all issues end up in litigation. Here too one side is going to prevail, the other not. While there is appeal in our judicial system, at some point a ruling is made. That’s it.
But to avoid endless uncertainty, we have rules and regulations defining any number of situations. Underpinning this system is a basic law-of-the-land, our Constitution. Here, as we know, basic rules, procedures and rights were agreed to before government was agreed to, approved of and established. The Constitution is thus the last word in settling disputes among and between the citizens, denizens and other institutions in American society. Here basic rights (and responsibilities) of both those governing as well as those being governed are set out to all to see. If this is the case, why does it seem like everyone is suing everyone else over the issue of “rights?”
Rights are a sensitive issue! They represent privilege, status and fundamental protections, e.g. security, the later important to all. Rights are commonly conceived of as originating through law: Someone in authority or some governing institution, itself with a recognized right to bestow then, has to confer rights before they become rights, or at least recognized, and hence defensible rights. So, obviously, the subject and scope of what rights belong to who for what purpose may be, or may become, a significant issue! This picture is further clouded by the contention that some (human) rights are so basic—the right to life, liberty and the pursuit of happiness, for example—that they are conceived by many to represent natural rights, both above and beyond the scope of human civil or political institutions (law) to either confer, or take away. These are often expressed as inalienable rights; a morally and ethically attractive concept, but one not universally held valid or respected. Rights are assets. But there is a flip side to having a right: rights most often come with responsibilities. And in this sense, rights and responsibilities often appear in conflict.
The author H.G. Wells is said to have once written to Mahatma Gandhi requesting an endorsement for a piece he had written on human rights. Gandhi rejected the opportunity, saying he was not committed to human rights. Astounded, Wells wanted to know for what purpose Gandhi had spent his life in social protest. Gandhi’s response: human responsibility. Any group that demands its rights does so at the loss of the rights of some other group or social structure. Soon, an organization or society will be torn apart and destroyed as each person fights for their rights. Gandhi commented that whatever rights we enjoy should be the result of the responsibilities we’ve committed to. This is certainly worth pondering.
A society is a community comprised primarily of broadly like-minded people, culturally and socially,—however homogeneous or heterogeneous—and it has, generally, agreed to the fundamental rules and regulations, civil, moral and other, that it prefers to live by. That is what we mean by “community.”That is what we mean by the “will of the people” in this sense. An individual or a small minority of this community is not entitled to see its will prevail, absent convincing the rest to support its views, most often via the ballot box. With this right to decide goes the responsibility to (a) abide by the vote and (b) the obligation to use this right responsibly.
This voluntary will of the people, expressed in the vote, may be considered a tyranny of the majority by some minority that feels it should have rights not now available to it. If they do not have such rights, it may in some instances be justifiably questionable why not—while in the opinion of the will of the people a justified or defensible limitation. Such limitation (discrimination, as it is too commonly referred to) is not absolutely and always wrong. We as a community discriminate, or differentiate, for any number of reasons. Who’s right? Who should prevail in disputed matters? Generally I would trust the will of the people via the ballot box. That this might turn out to be a tyranny of the majority is true. But the losers in cases such as this have recourse.
The fact that you, or some group, wants or feels they deserve some privilege, status or protection not at the moment available to them is questionably sufficient reason that they merit it. Conversely, withholding what you enjoy from others is at least as questionable. Where potential subjugation, oppression or anti-minority bias is suspected, there needs to be a reason, a justification, for such unavailability. It may be justified; it may not be, and in our society, that is exactly why, if the ballot box has not sufficiently settled the issue, ultimately, we have a legal system to make such a determination. However, as with any right, we have a responsibility to use this appeal judiciously, not as an alternative to by-passing the democratically expressed will of the people. Whatever your ideological outlook, that’s a less than satisfactory way to attempt to overturn the will of the people. However, as we have seen in our country’s history, at times that appears to be the only way.
In this interpretation, that comment that the majority does not get to legislate the rights of the minority, holds only if it is rights—expressed or implied— that are in question. Who determines this? To avoid just the issue of a tyranny—even if it appears to represent the will of the people as defined by majority rule— the courts do. And how do they do this? By weighing many considerations, no doubt; but ultimately, if their decisions are to be respected, on the basis of the Constitution.
But isn’t the Constitution open to at least some interpretation? Some say yes; some say no. The reality is that, over time, a public philosophy has developed that guides (influences) the decision making of the Court in these cases. But either way, for at least the time being, the (Supreme) Court’s determination is the final word. And as for the rest of us, it’s our responsibility to abide by it. In this Gandhi is correct: what is important is that we—all of us— be a responsible community, wherein whatever rights we enjoy should be the results of the responsibilities we’ve committed to, explicitly or implicitly.
Thomas Richard Harry
January 2010
