Together withthe less overtly religious Fourth of July and the more minor celebrations ofVeterans Day and the birthdays of Washington and Lincoln, these two holidaysprovide an annual ritual calendar for the civil religion.
The Declaration of Independence and the Constitution were thesacred scriptures and Washington the divinely appointed Moses who led his peopleout of the hands of tyranny.
Madison also noted the problem of a majority's, in a sense oppressingitself by passing laws that are only as temporary as the passions and fashionsthat make them seem desirable. He wrote of the dangers of "mutable government"in Federalist Paper 62, and a small part of what he said is: "It will beof little avail to the people that laws are made by men of their own choice... if they be repealed or revised before they are promulgated, or undergosuch incessant changes that no man, who knows what the law is today, canguess what it will be tomorrow. Law is defined to be a rule of action;but how can that be a rule which is little known, and less fixed." Andhe said, (Federalist Paper 63) "...an institution may be sometimes necessaryas a defense to the people against their own temporary errors and delusions.......there are particular moments in public affairs when the people, stimulatedby some irregular passion or some illicit advantage, or misled by the artfulmisrepresentations of interested men, may call for measures which theythemselves will afterwards be the most ready to lament and condemn. Inthese critical moments, how salutary will be the interference of some temperateand respectable body of citizens, in order to check the misguided careerand to suspend the blow meditated by the people against themselves, untilreason, justice, and truth can regain their authority over the public mind?What bitter anguish would not the people of Athens have often escaped iftheir government had contained so provident a safeguard against the tyrannyof their own passions? Popular liberty might then have escaped the indeliblereproach of decreeing to the same citizens the hemlock on one day and statueson the next."
I believe that Alexander Hamilton gave a hint to the solution of preventingtyranny of the majority in the last Federalist Paper (85), when he wrote,in a different context, "The intrinsic difficulty of governing thirteenstates at any rate, independent of calculations upon an ordinary degreeof public spirit and integrity will, in my opinion, constantly on the national rulers the of a spirit of accommodationto the reasonable expectations of their constituents." Also, "Every Constitutionfor the United States must inevitably consist of a great variety of particularsin which thirteen independent States are to be accommodated in their interestsor opinions of interest." What I wish to argue here is that the foundingfathers set up the government, via numerous mechanisms in the Constitution,in such a way that it was supposed to force, not compromise, but accommodationof numerical minorities, in order to achieve majority rule, and that therewere more obstacles preventing the tyranny of the majority in more importantissues than in less important ones. The greater the obstacles meant, atleast for Hamilton, the greater need for mutual accommodation. The electoralcollege is one such mechanism, but there are a great many more. I willdescribe and discuss them shortly.
As for Plato, the highest up the list of his “good regime” list was an aristocracy, then a timocracy, then an oligarchy, then a democracy, and at dead last was a tyranny.
The founding fathers of the American republic were not unaware of thisproblem, and some of the provisions of the U.S. Constitution can be viewedas ways of addressing it even if that is not necessarily their expressedor realized intention. James Madison wrote in Federalist Paper 51: "Itis of great importance in a republic not only to guard the society againstthe oppression of its rulers but to guard one part of the society againstthe injustice of the other part. If a majority be united by a common interest,the rights of the minority will be insecure." Many of the features of theConstitutional organization of the Federal government are meant to keepany branch or department from attaining domination of the others, but infulfilling that function, they also serve as a safeguard against any popularmajority, as represented then by the House of Representatives (and nowby the Senate and the House of Representatives in partnership), from beingable to oppress other citizens. Again Madison from the same work: "In framinga government which is to be administered by men over men, the great difficultylies in this: you must first enable the government to control the governed;and in the next place oblige it to control itself. A dependence on thepeople is, no doubt, the primary control on the government; but experiencehas taught mankind the necessity of auxiliary precautions."
However, the Constitution did not solve the problem of majorities' imposingtyrannical laws, or imposing unnecessary and unfair or unreasonable lawstyrannically without attending to the needs of the minority. (A case canbe made that the American Civil War resulted because of that, and I willreturn to this point later.) And because the problem of the tyranny ofthe majority is still not resolved today, nor even generally understood,it needs to be addressed as much as ever.
Madison had thought that the greatest safeguard against the tyrannyof the majority was the large number of sects and divergences of interestsand opinions that divided people in ways that made it virtually impossiblefor coalitions to form stable majorities. While that is often the case,historical divisions have arisen over characteristics that have broughtabout numerical minorities which have been more than temporarily placedin that status. (The phrase often used is "permanent minorities", but "permanent"is too strong because the problem is not that one is in a permanent minority,but that one is in a minority with no likely possibility to be in the majorityin the near future or within even a few generations.) Race, ethnicity,color are such characteristics in many societies today, but there are philosophicaland other kinds of minorities as well. Moreover, majorities in any legislatureoften merely impose their will on those numerical minorities with opposingphilosophies for as long as they are able, which means at least one electioncycle, if not many. In some of these cases, the minority viewpoint maybe "represented" in the legislature, but it is not attended to by the majority,and is therefore not what might be called "effectively represented."
The rights of the people did not need to be protected only from their leaders, but from
the prevailing opinions of the society in which they lived.
This present state of affairs leaves us with a kind of “social tyranny” which Mill states is even more formidable than
many kids of political oppression, as while the penalties for violating the social standards might not be as extreme
as they are under a dictator, there are fewer means of escape.
Unfortunately, the president would frequently evoke this clause,and it ultimately proved the downfall of the Republic.
Another flaw was an elaborate and complex system of proportionalvoting and voting by list, intended to give minorities the fairestpossible representation.
If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote. It may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the . When a majority is included in a faction, the form of popular government, on the other hand, enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens. To secure the public good and private rights against the danger of such a faction, and at the same time to preserve the spirit and the form of popular government, is then the great object to which our inquiries are directed. Let me add that it is the great desideratum by which this form of government can be rescued from the opprobrium under which it has so long labored, and be recommended to the esteem and adoption of mankind.