Supreme Court Rulings: Tyranny of the Minority

As past posts have noted, the Founding Fathers were far thinking in many ways but in one area they made what may turn out to be a fatal mistake for the long term future and unity of the country: they created a system where a minority of the population could overrule the will and desires of the majority.  The Electoral College and the two senators per state structure of the U.S. Senate give shockingly disproportionale power to small (and typically backward and reactionary states).  Meanwhile, the larger and typically more liberal states fund the majority of the federal government and constitute the economic dynamo of the nation.  Increasingly, the minority is becoming tyranical and openly subverting the will and desires of the majority of the population - the recent Supreme Court rulings on abortion and guns are flashing warning lights - and one has to wonder at what point the large states will decide it is no longer in their interest to remain in a nation where the will of their populations are subverted even as they pick up the majority of the bill for the country and are being forced to financially subsidize backward smaller states that are subverting the will of the majority of the population.  Wyoming with a population smaller than the the combined populations of the cities of Virginia Beach and Norfolk, Virginia, has two senators.  California with a population 67 times larger and an ecomomy that would be the 5th largest in the world if it were a separate nation only has two senators.  Obviously, something is very, very wrong with this picture.  A column in the Washington Post looks at the tyranny of the minority that may soon tear the country apart.  Here are excerpts:

Everyone knows that the Founders were afraid of the tyranny of the majority. That’s why they built so many checks and balances into the Constitution. What’s less well known is that they were also afraid of the tyranny of the minority. That’s why they scrapped the Articles of Confederation, which required agreement from 9 of 13 states to pass any laws, and enacted a Constitution with much stronger executive authority.

In Federalist No. 22, Alexander Hamilton warned that giving small states like Rhode Island or Delaware “equal weight in the scale of power” with large states like “Massachusetts, or Connecticut, or New York” violated the precepts of “justice” and “common-sense.” “The larger States would after a while revolt from the idea of receiving the law from the smaller,” he predicted, arguing that such a system contradicts “the fundamental maxim of republican government, which requires that the sense of the majority should prevail.”

Hamilton’s nightmare has become the reality of 21st-century America. We are living under minoritarian tyranny, with smaller states imposing their views on the larger through their disproportionate sway in the Senate and the electoral college — and therefore on the Supreme Court.

To take but one example: Twenty-one states with fewer total people than California have 42 Senate seats. This undemocratic, unjust system has produced the new Supreme Court rulings on gun control and abortion.

These are issues on which public opinion is lopsidedly in favor on what, for want of a better word, we might call the “liberal” side. Following the Uvalde, Tex., shooting, a recent poll showed that 65 percent of Americans want stricter gun controls; only 28 percent are opposed. Public opinion is just as clear on abortion: Fifty-four percent of Americans want to preserve Roe v. Wade and only 28 percent want to overturn it. Fifty-eight percent want abortion to be legal in most or all cases.

Yet the Supreme Court’s hard-right majority just overruled a New York law that made it difficult to get a permit to carry a gun, while upholding a Mississippi law that banned all abortions after 15 weeks. This represents a dramatic expansion of gun rights and an equally dramatic curtailment of abortion rights.

[I]t is hard for any disinterested observer to have any faith in what the right-wing justices are doing. They are not acting very conservatively in overturning an abortion ruling (Roe v. Wade) that is 49 years old and a New York state gun-control statute that is 109 years old. In both cases, the justices rely on dubious readings of legal history that have been challenged by many scholars to overturn what had been settled law.

The Supreme Court did not recognize an individual right to bear arms until 2008 — 217 years after the Second Amendment was enacted expressly to protect “well-regulated” state militia. The Second Amendment hasn’t changed over the centuries, but the composition of the court has.

The majority conveniently favors state’s rights on abortion but not on guns. It is obvious that the conservative justices (who are presumably antiabortion rights and pro-gun rights) are simply enacting their personal preferences, just as liberal justices (who are presumably pro-choice and pro-gun control) do.

[I]f the Supreme Court is going to be a forum for legislating, shouldn’t it respect the views of two-thirds of the country? But our perverse political system has allowed a militant, right-wing minority to hijack the law. As an Economist correspondent points out, “5 of the 6 conservative Supreme Court justices were appointed by a Republican Senate majority that won fewer votes than the Democrats” and “3 of the 6 were nominated by a president who also won a minority of the popular vote.”

Public faith in the Supreme Court is down to a historic low of 25 percent, and there’s a good reason why it keeps eroding. We are experiencing what the Founders feared: a crisis of governmental legitimacy brought about by minoritarian tyranny. And it could soon get a whole lot worse. In his concurring opinion in the abortion case, Justice Clarence Thomas called on the court to overturn popular precedents upholding a right to contraception, same-sex relationships and marriage equality. So much for Hamilton’s hope that “the sense of the majority should prevail.”