This blog, as its regular
readers can attest, promotes federation theory.
The introduction to this posting, found in its Blogspot version, reviews
the general ideas constituting that theory.
As that review indicates, the aim of issuing and promoting the theory is
to offer civics teachers a guide by which to choose content for their subject. Through the history of the blog, this writer
has informed the blog’s readers what the attributes of that theory are.
One of its main set of ideas has to do with what
constitutes an ideal makeup in a polity’s governance. That includes the attribute of a qualified
majority rule. That is, an ideal federal
union is structured so that policy is enacted through mechanisms that reflect
basically the majority wishes of the citizenry with some provided safeguards. Safeguards against what? Against the majority exercising tyrannical rule
over minorities such as those minorities that hold unpopular views or that are comprised
of members who are unpopular.
This concern goes beyond merely identifying and protecting
individual or group rights. A
government, for example, can protect its minorities’ right to voice their
opinions, but at the same time enact laws that fundamentally endanger their
interests. This, historically, has been
the case of racial and ethnic minorities.
Some of these interests are considered essential to further or even
protect the viability of these groups.
One group that felt this way – that today is viewed as
deserving any such laws – was the slave states of the South prior to the Civil
War. And a politician/political theorist
who spoke about the implied danger tht majority rule presented this group was
John C. Calhoun.
Since
representation in the House of Representatives was becoming lopsided in favor
of representation from the non-slave states, Calhoun feared that the federal
legislature, Congress, posed a potential threat to the South and its perceived
basic interests.[1]
Yes, laws need to be enacted by both houses of Congress and
that includes the Senate. As long as the
Senate was composed of equal numbers from each state and there was an equal
number of slave and non-slave states, the Southern senators could, in effect,
veto any legislation that threatened the fundamental interests of the
South.
But
the development of the nation – in its western expansion – promised that that
safeguard did not enjoy a safe future.
This encouraged Calhoun to devise a solution. And his solution was to further “qualify”
majority rule. Here is how Fred McBride
describes the issue for Calhoun:
Hence several problems arise from a
majority-rule principle. Tyrannical majorities are able to rule in their self
interest and force views on the minority. Individual liberty is suppressed.
Diversity is minimized, and the majority's progress stands little chance of
impediment. The common wellbeing of those in the minority is jeopardized. [2]
In
all this, one should keep in mind that not only slave states are minorities,
but so are many other groups within a polity at any given time. While one is well justified not to worry
about slave state interests, the concerns over minority rights and interests
are important in that one can cite the role the courts, especially the Supreme
Court, have played in dealing with minority rights.
History,
though, provides a mix record; the Supreme Court has both protected minorities
– e.g., Brown v. School Board of Topeka – and has also advanced the
power of the majority – e.g., Plessey v. Ferguson. Other cases can be cited both protecting or
threatening minorities and their interests.
So, perhaps a closer look at Calhoun and his thinking in this regard
might be useful for those concerned with minority rights.
This
is the case if for no other reason than to see if other ideas occur to current
thinkers who are concerned with the plight of minorities such as racial groups,
various ethnicities, people of various sexual orientations, women concerned
over reproductive rights, etc.
To begin, Calhoun saw the purpose of government as preserving
and protecting the common good of society – so far so good. Consequently, government and society are
strongly related. But government has a
tendency to abuse power. Why? Because it can, or can readily do so for the
sake of powerful members of the polity.
In
addition, in terms of the federal government and the states (such as South
Carolina where Calhoun was from), the states are sovereign entities – they did
not relinquish that sovereignty by agreeing to the founding compact, the US
Constitution.
Therefore, given how the politics of the nation had evolved
since the Constitution’s ratification, he is described as making the following
observation: “[T]hat there were no
provisions which prevented the federal government from encroaching on the
powers reserved to the states. Thus, the problem, according to Calhoun, lies in
numerical majorities which ultimately lead to absolute governments.” [3]
His
solution to this anti-republican attribute lay in his claim that the government
should not be managed or run by politicians chosen by numerical majorities. Instead, it should have representatives chosen
by a concurrent majority in which each of the polity’s major groups be given a
voice, through some system, to indicate their preferences regarding pending
policies – such as proposed bills.
What
system? Here is how the historian,
Richard Hostadter,[4]
describes Calhoun’s proposed changes to the legislative process:
… Calhoun seized upon the idea of
state nullification. The powers of
sovereignty, he contended, belonged of right entirely to the several states and
were only delegated, in part, to the federal government. Therefore the right of judging whether
measures of policy were infractions of their rights under the Constitution
belonged to the states. When a state
convention, called for the purpose, decided that constitutional rights were
violated by any statute, the state had a right to declare the law null and void
within its boundaries and refuse to permit its enforcement there. Nullification would be binding on both the
citizens of the state and the federal government.[5]
The reader might find
this system a bit interesting as to its legitimacy and practicality. Would the states be in a recurrent habit of
calling conventions on a monthly, yearly, or bi-yearly basis? That would be an interesting
proposition. But as any understanding of
American history indicates, this is a dead concern.
What
is of more interest is the whole sense of nullification by minorities. And this interest was revitalized when Bill
Clinton, in his initial transition to the presidency, named Lani Guinier as
Assistant Attorney General back in 1992.
She had advocated a more recent version of constraining majorities in
her work representing the interest of African-Americans and other minorities. Her ideas are based on her conclusion that
America is not color-blind.
She argues – or argued back then – that the American
society has been founded on racial divisions.
These divisions can be observed in certain practices such as housing,
voting, employment to name but few areas of social arrangements where that is
the case. Why do these practices exist? Because the majority – which is white – can
and does exercise racial monopoly over those who are not white.
Whites’
majority is based on their numbers, their power positions (including their
positions in the economy and the political structure of the nation), and the
resulting influence these other elements accrue to whites. In short, due to these advantages among whites,
non-whites’ interests are seldom, if ever, considered.
“For
Guinier, in a racially divided society majority rule may be perceived as
majority tyranny. Thus the discussion of
majority and minority relations in the 20th century [and into the 21st
century] becomes primarily based on racial and ethnic lines.”[6] Of course, if accepted as fact, this evidence
shows unfairness. It can even be
considered as whites, the majority, exercising a tyranny for the purposes of
advancing their advantages and self-interest.
In
addition, there does not appear to be a way to dislodge these advantageous
positions by whites.[7] Under these conditions, whites continuously
win and non-whites lose, a zero-sum situation.
Guinier, under these conditions, offers a way out where non-whites get
something.
Her
first goal is to get a way for everyone to be motivated to play in the national
“game” of distribution. Her suggestion
includes rules that reward winners but can be acceptable to losers. She cites the former Chief Justice Warren
Burger who is quoted as arguing that the Constitution does not require that
majorities always get their way. With
that, Guinier promotes proportional or a semi-proportional system as other than
winner-take-all systems. That is, she
suggests a cumulative voting regimen and a supermajority option.[8]
Here
are these proposals in turn:
Cumulative voting: A voter has not one vote, but the number of
votes equal to the number of options the voter has in voting for a candidate or
a proposal. He/she distributes his/her
choice in a combination of his/her choosing.
For example, one way is the case for choosing a mayor of a city. If there are four candidates vying for that
position, the voter would have four votes in which the first three votes can be
cast for his/her first choice and the last vote for the second favorite. The candidate who gets the most votes wins.
This option is not totally foreign to Americans. It is used in thirty states by corporate
boards or for selecting school board members or county commissioners.
Supermajority option: Here this option can utilize a
“super-district” strategy in which a proposal needs to secure a super majority,
like 60%, before a proposal is adopted.
Again, this is somewhat in effect since most proposals in Congress must,
to avoid a filibuster in the Senate, be supported by a 60% majority. If this was instituted across the board, then
policies would have to garner support from groups that hold non-majority
standing in settings such as a city or a county.[9]
Lani
Guinier was, in 1992, dropped from consideration for the Justice Department
position because her writings engendered a lot of concern and the
President-elect, upon further consideration, found he was also at variance with
her positions.
This posting draws attention to this challenge that majority
rule poses because if the majority does treat minorities unjustly, then that is
a federalist issue. Civics teachers
should question students about such treatment as it may occur in students’
local community, city or town, state, and definitely the nation.
[1] Greg Timmons, “How Slavery Became the Economic Engine
of the South,” History Network, August 31, 2018/March 6, 2018, accessed
November 5, 2019, https://www.history.com/news/slavery-profitable-southern-economy
. The South produced 75 percent of the
world’s cotton and if compared with other nations, the South would have ranked
as having the fourth richest economy of the world.
[2] Fred McBride, “Strange Bedfellows: The Political Thought of John C. Calhoun and
Lani Guinier,” Endarch: Journal of
Black Political Research, vol. 1997, no. 1, accessed November 4, 2019, https://pdfs.semanticscholar.org/b861/e2e50999d477329bd9742531c0716cee8b9b.pdf,
41.
[3] Ibid., 42.
[5] Ibid., 71-72.
[6] Fred McBride, “Strange Bedfellows: The Political Thought of John C. Calhoun and
Lani Guinier,” Endarch: Journal of Black
Political Research, 45.
[7] More current demographic information seems to
indicate that in terms of numerical standing, whites are being challenged by
non-white groups (combined numbers of African-American and Latin-American
groups).
[8] Ibid.
[9] “Lani Guinier,” Wikipedia, n.d., accessed November 4,
2019, https://en.wikipedia.org/wiki/Lani_Guinier
.
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