Eric Posner Doesn't Get How to Fight Tyranny of the Majority

Eric Posner has a column today at Slate arguing that the recent filibuster reform for judicial nominees is a big problem, especially for fans of moderation. Basically he thinks the filibuster was good because it prevented tyranny of the majority. Now, he concedes that given how our government is constructed, requiring 60 votes in the Senate for ordinary legislation is probably unnecessary to prevent tyranny of the majority. For appointing life-tenured judges, however, he thinks that letting the Senate majority plus a President of the same party do whatever they damn well please is a really bad idea. I have a lot of problems with his argument (that he ignores the game-theoretic argument that the old filibuster rules were never a stable state and that, having conceded that Democrats had no choice given Republican intransigence, he then fails to lay the blame for all the problems he describes squarely on the Republicans' doorstep being two of the biggest), but what I want to talk about in this post is the way he misunderstands "tyranny of the majority," and especially how to fight it.


Majority rule, he argues, is not intrinsically "democratic" or necessarily the best way for a group of people to make decisions. For smaller groups, it's often better to require consensus, to prevent anyone from being made worse off. For larger groups, like say the United States of America, that kind of requirement is highly problematic, because it just prevents anything from getting done. So we adopt majority rule as essentially a convenience thing, because there's no other way for the system to function. But this allows the majority to adopt rules that screw over the minority, and then when (or if) the old minority becomes the majority, they adopt different rules that screw over the other side. Politics becomes a sort of war across time, with all sorts of adverse consequences. He then gives examples of majoritarian lawmaking that liberals and conservatives have respectively objected to over the years. Liberals disliked the Defense of Marriage Act and, along with all other non-horrible people, Southern segregation and Jim Crow laws. Conservatives disliked various laws passed before the Constitution prohibited them which violated property and contract rights in various ways. Tyranny of the majority!

Well, yes, these are examples of tyranny of the majority, with the caveat that Jim Crow laws were enacted by a majority of the white voters, not of the whole state polity. (Yes, in most Southern states racist whites made up a majority, but we can be sure that the median voter among a biracial electorate would've tolerated a lot less segregation than the median voter among only the whites.) But they also share another characteristic: they're all unconstitutional. As he mentions, the laws repudiating contracts and expropriating property were eliminated by the Constitution, which explicitly prohibits such nonsense. Segregation was the most obviously unconstitutional thing this country has ever done, basically, though it took us nearly 100 years to realize it. And DOMA was just struck down.

All of these examples, then, point us toward the liberal democratic approach. Lawmaking is done through majoritarian processes, but there are constitutional limits to what laws can be made. These can be substantive limits, such as the Second Amendment's protection of gun rights. Or they can be procedural, like the Fourth through Sixth Amendments, aimed at preventing the government from arbitrarily punishing those it dislikes and at guaranteeing the rule of law. Most importantly, however, you need something like the Equal Protection Clause. As John Hart Ely argued in the most famous legal book of all time, Democracy and Distrust, an equal protection principle allows majoritarian democracy to function by preventing the majority from inflicting injury upon the minority without injuring itself. He thought that, if you had a vigorously enforced Equal Protection Clause and strongly protected political participation rights, you didn't even need substantive rights, as this kind of modified majority rule would incorporate those concerns in ways absolute majority rule never could.

Whether Ely was right about substantive rights or not, his point that "majority rule + equal protection" prevents tyranny of the majority stands. And that's what makes liberal democracy so great: it allows us to take advantage of the enormous functional benefits of majority rule while protecting us from the dangers Posner describes. If you have constitutional limits on the political process and an independent judiciary willing to enforce them, you don't need to be as worried about letting the government do things just because you're scared it will do oppressive things. Now, Posner does have a less mangled grasp of "tyranny of the majority" than many defenders of minority rule through filibuster. He didn't pretend that the majority doing the thing it wants and that the minority doesn't want constitutes tyranny; all his examples are genuinely of the government enacting laws which directly injure members of society not part of the governing coalition. But his entire attitude toward the concept illustrates that he just doesn't get what the solution to the problem is, a solution that an increasingly large portion of the world has embraced.