Protection from the Majority

The 2016 election of Donald Trump and his 2020 near-election confront the United States with a most basic question of democracy: What would happen if the majority of the voters in the country were not particularly concerned about the basic freedoms, rights and responsibilities of democracy?

We have come too close to the answer to that previously unthinkable question.  We must face it head-on.

A “democracy” is usually defined as a country run by the will of the people.  In its simpler form — direct democracy — those eligible decide by vote upon the issue.  This might work well in a town of 500 but less well in a country of 330 million.  Twenty-three states, however, currently allow for popular referenda on particular issues: A minimum number of signatures is generally required on a petition to place the issue on the ballot, which is then voted upon directly by the electorate.  

For the most part, however, we are a democratic republic in which the people elect representatives who decide upon the issues facing the country.    

The most serious challenge to either of these forms of straightforward democracy is that there is no protection for the rights of the minority nor is there a guarantee of individual human liberties, such as freedom of speech.  In other words, majority rule does not make a country a real democracy nor a place we’d want to live in.  In addition to majority rule, a true democracy — as most of us conceive it — also guarantees:

• the rule of law and fair legal procedures,
• free and fair elections,
• freedom of speech,
• freedom of the press,
• the right to assemble,
• freedom of religion and
• the protection of property.  

The term “liberal democracy” has traditionally been used to refer to such government.  In this context, the term “liberal” refers not to the current “liberal” vs “conservative” political divide but to the 18th and 19th century English philosophical systems based on liberty, consent of the governed and equality before the law.  Democracies that do not guarantee these rights are called “illiberal democracies.”

How does a liberal democracy keep the majority from changing those requirements when they become inconvenient … yet still remain a democracy?  Ordinarily, we create a constitution that guarantees those basic rights.  How do we prevent the majority from changing the constitution?  We create a constitution that makes spur-of-the-moment, in-the-heat-of-strong-emotions decisions impossible.  We write a constitution that makes itself very difficult and time-consuming to change.

Within two years of passing the American Constitution, the Founders added the Bill of Rights, ten amendments that became part of the Constitution, and they were ratified by the states almost immediately.  Those amendments enshrine individual rights in the American Constitution, and they are difficult to change.  

The process for amending the Constitution requires that

• upon a two-thirds vote of both houses, Congress submits the proposed amendment(s) to the states and
• three-fourths of state legislatures then ratify the exact wording of the text.

As Trump works to destroy our liberal democracy and we seek to save it, we can be grateful to our Founders who — for all their faults — left us a Constitution that — with all its faults — remains firmly on our side and genuinely supports our struggle.