All Commentary
Thursday, November 1, 1962

The American System of Majority Rule

It is standard journalistic pro­cedure to divide the world into two camps. The Soviet bloc comprises one camp, whose member nations are run along totalitarian lines. The non-Soviet bloc, by contrast, is called The Free World. The United States, it is conceded, is a prime example of a free society, and so this nation has assumed leadership of The Free World. And not without reason, when the matter is viewed historically. The eighteenth century thinkers who conceived and launched the Amer­ican System envisioned a society of free men, and however ques­tionable some of our current be­liefs and practices may be, we still honor their memory. But does to­day’s popular notion of a free so­ciety have anything in common with the model erected by the venerable Founding Fathers?

Take a random sampling of our citizenry and ask them to explain what they mean when they declare that this is a free society. “Amer­ica is free,” most of them would say, “because The People in free elections choose their own leaders. And then, by letter writing, lob­bying, and delegations to Washington, The People make their opinions felt in the determination of policy.

Furthermore, our political leaders are not selected from among a few aristocratic families; here anybody can run for political office, and most anybody can become President. And if The People do not like the government they chose in 1960, they need not revolt; all they have to do is convince a majority of voters to their way of thinking and they’ll get the government they want.” The simple man in the street and the sophisticated reader of “lib­eral” weeklies may have little else in common, but they share a touching faith in the sovereignty of The People.

Now suppose I am not in sym­pathy with some part of the na­tional government’s program—not so farfetched an assumption—and I utter some criticisms of it. I get a standardized reaction. The customary response is: “The Peo­ple are entitled to get from gov­ernment whatever a majority of them want: from schooling, to job insurance, to cheap electricity. Would you deny them these bene­fits? Most people favor social se­curity, and under our system of government where The People are sovereign they should have it. Are you opposed to majority rule? Don’t you believe in democracy?”

The unspoken assumptions un­derlying these questions are some­what as follows: “The voice of The People, expressing itself through majority opinion is, in a democratic society, the final de­terminer of policy, and the ulti­mate sanction for political con­duct. A society is free to the ex­tent that the majority will is not frustrated. This is what it means to live in a democracy.” Such is the rationale for much of today’s politicking. Let us try to evaluate it in terms of American political theory and experience.

Constitutional Safeguards

These assumptions—about the desirability of permitting major­ity will free rein—were not shared by the men who drafted the Con­stitution. To the contrary, these men worked overtime to devise ways of protecting society against the action of majorities. They knew that “The Majority” is a technical term in politics, custom­arily meaning “a minority on the make.” If democracy is a system of government in which every citi­zen is equally represented, and where policy is determined by sampling majority opinion, then the Founding Fathers tried to circumvent “democracy”—in this sense—and succeeded.

A rather silly European Social­ist, presumably with this in mind, referred to our Constitution as “very nearly a plot against the common people.” The real intent of the document was quite the op­posite: it was to protect the com­mon people—which includes just about all of us—from political ad­venturers. Our forebears had ex­perienced the tyranny of mon­archs, but they had no intention of accepting a majoritarian tyran­ny in its place. “An elective des­potism is not the government we fought for,” wrote Jefferson in 1781.

The end they fought for was individual liberty within the framework of a moral and legal order, and to this end they cre­ated a number of antimajoritari­an institutions. The Senate is one instance. One senator in my state of New York represents about 8,000,000 people; in the state of Washington, one senator repre­sents about 1,400,000 people. The lucky people of Nevada have one senator for every hundred thous­and of them. Whatever one’s reac­tion to this, he cannot call it equal representation.

Appointment of Senators

To emphasize further the un­democratic nature of the Senate, the Constitution provided that its members be appointed by the leg­islators of the various states, not elected by the voters. We amended the Constitution to change this procedure.

The Constitution declared that the President would not be chosen by mass vote. The legislature of each state was to determine the manner of choosing electors who, in turn, would meet and select a President. The idea was to insu­late this office from the popular will.

And then there is the Supreme Court. Theoretically, a bill might have the unanimous support of the voters, be passed into law by the Congress, and then be thrown out by the Court on the grounds of unconstitutionality.

Additional examples might be cited, but enough has been said, I think, to indicate that the federal republic designed by the Founding Fathers is miles away from what the average American today un­derstands by a democracy in which majority opinion rules directly and unfettered. It might be in­structive to examine portions of our historical background in or­der to better understand this situ­ation.

The people who adopted the Constitution as their organic law were well qualified to make it work: they knew political theory; they were experienced with colo­nial charters, compacts, and self-government; and their religion conduced to individual liberty. These qualifications have been largely lost among us—although they might be restored. But until a restoration occurs, we as a peo­ple will probably continue to re­sort to the expedient of “majority rule” to sanction any governmen­tal action an actual minority of the voters wants.

Qualified Draftsmen

One hundred and seventy-five years ago, in the spring of 1787, a body of delegates met in Phila­delphia. They represented twelve of the thirteen colonies, Rhode Island abstaining. By September they had drawn up the Constitu­tion and signed their names to it, and beginning in October three young men wrote a series of 85 articles urging the adoption of this document by the states; Ham­ilton was thirty, Madison thirty-six, and Jay forty-two. The series was nearing completion when the papers were collected and issued in book form as The Federalist. This book has long been recog­nized as a classic in political phi­losophy, and the document whose virtues it expounded, The Consti­tution of the United States, is still—nominally at least—the law of the land. The first Congress under the new Constitution met at New York on March 4th, 1789.

The men who drafted our basic political document and set a new government in motion represented a people who were exceedingly alert intellectually and politically. There was a population of some three million along the Atlantic seaboard in the latter part of the eighteenth century, largely rural. But they were readers and think­ers, as well as farmers and arti­sans, as the following instances show. Blackstone’s famous Com­mentaries appeared between 1765 and 1769, and 2,500 copies sold in America before the Revolution. Adam Smith wrote his Wealth of Nations just as the Revolutionary War was getting started, in 1776, and despite the preoccupation of Americans with their own prob­lems in this time of trouble, sev­eral thousand copies of the book sold here shortly after its publi­cation in England. Tom Paine wrote his pamphlet, Common Sense,in January 1776, and Americans bought about 100,000 copies with­in a few weeks.

Many colonists were at home in the realm of ideas, and thus were ready, when the time came, with a rationale for liberty based on an acquaintance with its literature as far back as Greece, Rome, and Is­rael.

A significant number of the colonists were learned in history and political theory, but Ameri­cans were not a bookish people; they were experienced in self-gov­ernment and at home with char­ters and compacts. When the Founding Fathers sat down in Philadelphia to draw up a new constitution, the American adven­ture was already 180 years old. In other words, about as much time had elapsed between the settle­ment in Jamestown in 1607 and the Philadelphia Convention as be­tween Philadelphia and ourselves. These men were anything but novices in practical politics. What had their experience taught them?

Chartered by the Crown

During the 1500′s, individual adventurers like Sir Walter Ra­leigh conducted colonizing efforts at private expense, but in the 1600′s companies were chartered by the English Crown to establish colonies and carry on trade. The famous East India Company was organized in 1600, and was prob­ably the model on which the Vir­ginia Charter of 1606 was framed. It was this Charter which created the London and Plymouth com­panies which led to the settle­ments at Jamestown in 1607 and Plymouth in 1620. We need to take a careful look at these com­mercial corporations for coloniza­tion for, in structure and func­tion, they were models used by the colonists in their political experi­ments.

This fact has been noted by Charles A. Beard in his book, The Rise of American Civilization. Re­ferring to the Virginia Company, Beard writes: “Like the State, it had a constitution, a charter is­sued by the Crown… like the State, it had a territorial basis, a grant of land often greater in area than a score of European principalities… it could make assessments, coin money, regulate trade, dispose of corporate prop­erty, collect taxes, manage a treas­ury, and provide for defense. Thus every essential element long after­ward found in the government of the American State appeared in the chartered corporation that started English civilization in America.” (p. 37)

These chartered companies were also missionary enterprises. The colonizers who came to these shores were Dissenters from the Established Church in England, seeking here a haven where they might worship God according to their own convictions. They did not believe in, nor did they prac­tice, what we have come to call “religious toleration.” Theoriz­ings about the “rights of private conscience” would have fallen up­on deaf ears; the freedom they sought was freedom to worship as they chose, not every man’s free­dom to do as he pleased. They were not easy-going people, nor were they easy to live with; but perhaps it took a certain kind of fanaticism to make the ocean voy­age in the first place and, in the second place, to survive in an ex­tremely hazardous situation.

Puritan Tradition

This “hardshell” aspect of Puri­tan and Separatist religion has no discernible political significance; history bears witness to hundreds of crusading faiths for which the adherents were willing to suffer and, upon occasion, to persecute. But there were two peculiarities of the Puritan religion which did have a direct bearing on Ameri­can political theory and practice—its covenant theology and its con­gregational polity. Let me quote the words of a scholar, R. L. Perry, referring to the Mayflower Compact:

“The document represents the application to the affairs of civil government of the philosophy of the church covenant which was the basis of Puritan theology. This theology found in the Scriptures the right of men to associate and covenant to form a church and civil government and to choose their own officers to administer both religious and civil affairs. Each member of the congregation had a vote in the election of of­ficers, and each congregation was considered as independent and au­tonomous of every other and not subject to the authority of any centralized church hierarchy.”

Edmund Burke delivered his great speech on “Conciliation with the Colonies” in 1775. Speaking of the influence of the colonists’ re­ligion on their will to resist he said: “Religion, always a principle of energy, in this new people is no way worn out or impaired; and their mode of professing it is also one main cause of this free spirit. The people are Protestants, and of that kind which is the most ad­verse to all implicit submission of mind and opinion. This is a per­suasion not only favorable to lib­erty, but built upon it… the dissenting interests have sprung up in direct opposition to all the ordinary powers of the world, and could justify that opposition only on a strong claim to natural lib­erty. Their very existence de­pended on the powerful and unre­mitted assertion of that claim. 11 Protestantism, even the most co d and passive, is a sort of dissent

But the religion most prevalent in our northern colonies is a refine­ment on the principle of resist­ance: it is the dissidence of dis­sent, and the protestantism of the Protestant religion.”

The Natural Law Concept

As a corollary of this religion the Founding Fathers posited a higher law—the Natural Law or the Moral Law—to which the laws of men ought to conform. Men might create statutes or legisla­tion, but the Natural Law is dis­covered, not created; it is a law superior to the will of human gov­ernors, and legislation is just )r unjust as it conforms to or vio­lates Natural Law. The Natural Law is largely unwritten, but t e down to earth parts of it are found in the Common Law, in “the idea of immemorial rights of Eng­lishmen,” and in the various char­ters written to implement these rights from Magna Carta on down.

So much for the men and the po­litical ingredients at their finger­tips. They were acquainted with political philosophy and experi­enced in the art of governing. Their Dissenter’s faith disposed them to individual liberty, and in the Natural Law they had a device to limit arbitrary rule. This was their equipment, and then they were given an opportunity, unique in history, to draw up the funda­mental rules for a society in which men would be free. One of them, James Wilson, wrote: “The United States exhibit to the world the first instance, as far as we can learn, of a nation, unattacked by external force, unconvulsed by do­mestic insurrection, assembling voluntarily, deliberating fully, and deciding calmly, concerning that system of government under which they would wish that they and their posterity should live.” The exuberant Patrick Henry went even further. Cried he: “We are, Sir, in a state of nature!”

What Shall Be Government’s Scope? and Who Shall Rule?

In short, these men were in a position unprecedented to ask and answer the two fundamental polit­ical questions. The primordial po­litical question is: What shall be the extent of rule? or What is the proper scope of government in so­ciety? The second question is: Who shall rule? or What devices shall we employ to choose person­nel? The answers of the Found­ing Fathers constitute a political breakthrough, a new departure in government.

The first question is basic: What shall be the extent of rule? Once we have answered this one prop­erly, a workable device for choos­ing personnel is easy to find. Ma­jority opinion, as determined by balloting, is one such device. But to use majority voting in order to determine the proper scope and boundaries of government is to confuse the categories. The an­swer our forebears gave to the question: What shall be the extent of rule? is that of classic Liberal­ism. It is the function of govern­ment, they said in effect, to act as an umpire who enforces the agreed upon rules. Let govern­ment administer justice among men and otherwise keep hands off; men will be free then to adminis­ter their own affairs. When gov­ernment keeps the peace by curb­ing peace breakers, men may go freely about their productive and creative pursuits, cooperating and competing with one another as to each of them seems best.

In giving this sort of an an­swer, the Founding Fathers broke with a long and powerful Euro­pean tradition. The alchemists had sought for a philosopher’s stone which would transmute lead into gold; but the thing which really haunted the mind of Europe ever since Plato was the search for a philosopher-king. Plato’s words are found in Book V of The Re­public: “Until philosophers are kings, or the kings and princes of this world have the spirit and power of philosophy, and political greatness and wisdom meet in one, and those commoner natures who pursue either to the exclusion of the other are compelled to stand aside, cities will never have rest from their evils—no, nor the hu­man race, as I believe—and then only will this our State have a pos­sibility of life and behold the light of day.”

The idea is an intriguing one and, judging by the record of his­tory, it is irresistibly fascinating to most people. The idea is simple and easy to grasp, and there is a sort of Gresham‘s Law at work at the mental level which rules that complicated ideas are killed off by the simple, just as bad money drives out the good. What sounds simpler than the suggestion that the human situation would be im­mensely improved by first creat­ing elaborate and powerful gov­ernmental machinery, capable of running society and doing wonder­ful things for The People, and then finding the wisest and best men to operate this mechanism? This ancient dream of giving the wisest and best men unlimited political power in order to accom­plish enormous good has night­mare possibilities; the dream goes sour periodically, and the subjects who get it in the neck hope that the next king will be better than his predecessor.

The Americans scrapped this machinery, lock, stock, and barrel. Government, they said in effect, is necessary in human society, but unless it is limited and kept under control, it is capable of doing great harm. And human nature is such that, if power situations are deliberately created, the worst men will gravitate toward them, and such good men as are given arbitrary power will tend to be corrupted by it. Therefore, keep government limited to the admin­istration of justice and the de­fense of life and property and you deprive it of its propensity for evil. Each man will then be free in society to realize his highest potential.

Such, in briefest outline, was the early American answer to the primordial political question: What shall be the extent of rule?

Selection of Policemen

The second question has to do with the choice of personnel. Once you decide to limit government to policing functions, how do you go about selecting men for the jobs? Four such devices are available. The first is determination by bloodline: If your father is king, you’ll be king when he dies, and your son will rule in your place. The second is determination by lot—drawing straws—used for a considerable period in Athens. Third, is the device of aristoc­racy, where a few families com­prise the ruling caste, as in Ven­ice. The fourth form is the one that seems natural to us: Impose a few qualifications for the privi­lege of voting, and then by ballot­ing let the voters freely choose their representatives, the candi­date who gets the majority of votes being the winner. This is the proper place to use majority rule, in dealing with the second of the two main political questions.

The primary question, What shall be the extent of rule? can be answered or resolved on the basis of intellectual and moral criteria only—not by counting noses. No scientist would suggest that the validity of the germ theory of dis­ease, for example, should be de­termined by an opinion poll; and similar considerations apply to disputed questions in history, psy­chology, mathematics, and else­where. There is no difference of opinion on this score; every schol­ar agrees that disputes in his field are to be settled by laboratory ex­periments, by field tests, or by reason and logic—in short, by weighing the relevant evidence.

The only exception to this rule is in this sector of political sci­ence. But even here, every scholar leaves himself a loophole. Ask theperson who tells us that majority rule should reign everywhere if he believes that the majority in this country has the right to de­cide for everyone what church we should all be forced to join. He will answer in the negative, and in disavowing this logical infer­ence from his position he has im­plicitly admitted that majority rule should not be permitted to up­set certain principles—the prin­ciple of religious liberty, in this instance. In so doing he also ac­knowledges, in sort of left-hand­ed fashion, that majority rule is not itself a principle. Majority rule is a mere device, a means for accomplishing certain ends, but not others. So when someone asks, “Do you believe in majority rule?” we must render the question in­telligible, as follows: “Do I be­lieve in majority rule to do what?”

“Imposter Terms”

Our language contains many “imposter terms”—to use old Jeremy Bentham’s label—and the jargon of politics is particularly rich in examples. “The People” is one example of an imposter term. People obviously exist, but “The People” is a fiction introduced into a discussion to mislead. So whenever you hear anyone refer to “The People,” put your hand on your wallet. Likewise, when some­one sounds off about “The Public” or “The Majority.” “The Major­ity,” as mentioned earlier, is a politician’s or a “liberal’s” way of meaning “A Minority.” A so-called majority is really a numeri­cal minority manufactured and manipulated by a small group of determined and unscrupulous men. Majorities for or against this or that measure are often manufac­tured at will. This procedure goes on today and it has gone on for a long time. More than a century ago the Columbia University pro­fessor of political science, Francis Lieber, wrote: “Woe to the coun­try in which political hypocrisy first calls the people almighty, then teaches that the voice of the people is divine, then pretends to take a mere clamor for the true voice of the people, and lastly gets up the desired clamor.”

The philosopher, according to an old joke, is a blind man in a dark room looking for a black cat that isn’t there; the theologian, on the other hand, finds the cat! The people of Europe searched in vain for a philosopher-king, but never found him; we of the mod­ern world have found our philos­opher-king, and his name is The People, expressing itself through majority rule. Government, in this view, is identified with The Peo­ple; and when this belief is ac­cepted, any constitutional device designed to limit government isregarded as an affront to The Peo­ple and an impediment to major­ity rule. Such a view is fatal to liberty and to peace.

Respect for the Individual

The authors of the Constitution had a high regard for the individ­ual citizen. He had, in their view, certain inherent rights derived from his Creator, which it was the function of government to re­spect and protect. When govern­ment was thus limited, it con­formed to the Natural Law, those norms of liberty, equality, and justice which are part of the na­ture of things. But with the rise of skepticism as to the very ex­istence of anything but man-made rules, another sanction had to be found to rationalize political might. Thus was majoritarianism invoked, and under its guise, things have been done to individ­uals which they would never have tolerated from any monarch. For the antithesis of majoritarianism is the principle of individual lib­erty, and to secure individual lib­erty our Constitution placed vari­ous checks on majority action.

The inclusion of such checks de­rives from the conviction that each man has certain inherent rights which it is the duty of gov­ernment to secure, so that even as a minority of one he has immu­nities which no numerical majority may invade. No majority had the right, under our original sys­tem, to impose its religion on any minority, or impair its freedom of utterance or deprive it of prop­erty. But under the new dispensa­tion “The Majority” is almighty. All it has to do is gain control of government and then it has a le­gal cloak behind which a minority of the nation uses the govern­mental machinery to work its will on the rest of the society. Accord­ing to the theory of majority rule, the governmental machinery is always “up for grabs” for just such a purpose.

Limits to Majority Rule

Majority decision at the polls is an excellent way of choosing personnel for political office, but it is a violation of the moral law for the majority to vote away any man’s freedom. The majority may have the power to do this, but the right to this action it never has. But here we hit an obstacle, for in speaking of “the right” we have assumed the real existence of an independent moral principle, im­plying that something may be ethically right or ethically wrong whatever its measure of popular support—or lack of support. But this is the very concept which has fallen into general discard, even among convinced antimajoritari­ans. Some of these abandon the idea that majority support deter­mines the ethical rightness of an act on the grounds that this is the kind of thing each individual de­cides for himself.

This implies that there are as many valid ideas of right as there are persons, and denies that there is any such thing as right per se. But if there is no right per se, it cannot be wrong for majorities to do as they please! If there are no norms or principles as part of the nature of things, then man-made assumptions are all we have to go on. Man-made assumptions are not self-operating; they must be made to operate by the weight of a suf­ficient number of people who want to make them work—just as a water wheel is turned by the weight and force of the water fall­ing on it. Tomorrow, the contrary man-made assumptions can be made to work in just the same fashion, by the weight of majority opinion. Such a situation is un­avoidable unless the universe ex­hibits a qualitative dimension, ethical in its own right.

Objective Standards of Morality

We do not adopt a free-wheel­ing attitude in questions of arith­metic. We do not, that is to say, advise every man to decide for himself what the answer to two plus two will be for him. This is because we take it for granted that the constitution of things is such that there is only one valid answer to two plus two; namely, four. And if the ethical dimen­sion of existence is not so con­stituted that certain things are right and certain things are wrong per se, then let us frankly acknowledge the fact and give up the moral approach altogether. In which case, majoritarianism makes a modicum of sense.

Human beings, however, are called upon to make moral deci­sions just because they are hu­man beings. But moral decisions can no more be made in the ab­sence of ethical standards or norms than things can be weighed without such units as ounces and pounds. Large numbers of people have lost touch with principles; the old ethical standards have been discarded, and we attempt to makeshift without standards. So, desperately trying to find some basis for making moral decisions—as an alternative to the naked rule of arbitrary might—our contemporaries are driven to the expedient of majority rule.

But majority rule is not a moral principle, and the attempt to use it as such won’t work—any more than it would work to try to weigh things by the foot or yard or cal­culate length in terms of pounds. It is a waste of time to try to mix incompatibles, but it is a safe bet to assume that we’ll continue with this useless effort until we restore ethical norms and princi­ples to their rightful place in our lives, and then proceed to build our social and political structures into conformity with them.     



The Downward Road

It appears we are descending the ladder of human values. First we attack the morality of honest effort because it has reaped materialistic rewards. Second, we put aside the educational and spiritual values of doing well the little menial or unpleasant tasks that must be done. Third, we advance the false theory of entitlement regardless of how one has loafed and mismanaged personal affairs. The pages of history clearly point out that these are the roads to human deterioration.

Ralph E. Lyne, Taylor, Michigan

  • The Rev. Edmund A. Opitz (1914-2006) was a Congregationalist minister, a FEE staff member, who for decades championed the cause of a free society and the need to anchor that society in a transcendent morality. A man of wide reading and high culture, Opitz was for many years on the staff of the Foundation for Economic Education in Irvington-on-Hudson, New York. He was one of the few voices in the 1950s through the 1990s calling for an integrated understanding between economic liberty and religious sensibility. He was the founder and coordinator of the Remnant, a fellowship of conservative and libertarian ministers.