Many Democrats have been frustrated that despite winning the White House and control of both houses of Congress they have largely been frustrated in enacting much of their agenda. In Texas, Republicans are fuming because Democrats have fled the state to break quorum and prevent the Republicans from enacting new election rules. Last year in Harris County, two commissioners boycotted a meeting, keeping the Democratic majority from imposing a large property tax increase.
In each of these instances, the party in the majority has hurled invectives at the other side accusing them of undermining the democratic process. But in truth the “undermining” arises from our Founders’ original Constitutional design, which has been incorporated in most state governments as well.
The American Revolution is rightfully seen as the seminal victory of democratic rule over monarchy. But when the Founders transferred sovereign authority from a monarch to the people they nonetheless retained a healthy fear about the excessive exercise of governmental power. Much of the Constitution is, in fact, designed through a series of checks and balances to frustrate runaway democratic rule.
Indeed, the entire Bill of Rights is an enumeration of things that the majority cannot do. One of the great debates over the Bill of Rights was whether there should be one at all. Not because there was any disagreement that majorities should be constrained, but rather by enumerating specific limitations, they might leave some out. That is how we ended up with the “catch-all” Ninth Amendment, which provides that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
James Madison, the principal drafter of the Constitution, frequently spoke about the danger of majorities oppressing minorities.
“All power in human hands is liable to be abused . . . . In Republics, where the people govern themselves, and where of course the majority Govern, a danger to the minority, arises from opportunities tempting a sacrifice of their rights to the interests real or supposed of the Majority.” Letter to James Ritchie, December, 1825.
Majority rule does not always produce good results. Majority rule kept schools desegregated, abortions illegal, and prohibited women from voting. This year, our Texas legislature, elected by a majority of Texans, enacted several new laws, like permit-less carry, that are wildly unpopular with a majority of Texans. But as Winston Churchill once famously quipped: “democracy is the worst form of government – except for all the others that have been tried.”
We frequently hear the winners of elections on both sides of the partisan divide piously declare that “elections have consequences” to justify cramming their agenda down the throats of the losers. But neither party today has anywhere near the support of a majority of the American people. Nationally, neither party can consistently even get 30% of Americans to identify with them. Republicans are struggling to stay above 25%. They should perhaps keep in mind that electoral tides shift and those in the majority today are likely to find themselves in the minority sometime in the future. It is something that our Founders clearly understood.