Daze of Whine and Poses

How many times have you heard some defender of uber-powerful unelected judges or two-bit international bureaucrat working for some-or-other United Nations agency defend their anti-democratic preferences with some amorphous reference to the evils of ‘the tyranny of the majority’?  Yes, you’ve probably heard it many times.

But think about that rebuttal for just a second.  The claim is that we need a small group of elite people to overrule the majority’s values or beliefs because the majority (at least in this particular instance) is indulging in tyranny.

Point one.  Every time you or your friend is on the losing side of some debate about which you care strongly – be it how to deal with those claiming refugee status, the same-sex marriage debate, euthanasia, abortion … the list goes on and on and on – it cannot be the case that solely and simply because your side lost makes what happened tyranny.  Down that road lies no room for democratic decision-making at all.  None of us is the ultimate arbiter of what counts as the morally right path.

All of us think our views are the morally right.  There is always, therefore, a need for some procedural rule to break our heartfelt disagreements.  Democracy’s rule is to count us all as equals and let the numbers speak.  Notice that on top courts around the common law world it is exactly that rule which applies.  When the US Supreme Court or the Canadian Supreme Court divides on same-sex marriage it counts the nine top judges and their votes as equals.  Five votes beat four, full stop, regardless of which jurist writes the more morally moving judgment.

You can’t cry ‘tyranny of the majority’ every time you’re on the losing side of some social-policy debate.  Your proper remedy is to get out and work to advance the political party that agrees with you.  It is not to ask some UN body or a handful of unelected judges to side with you and over-rule tens of millions of your fellow citizens.  You need a whole lot more than some highly moralized issue where your side lost in the court of public opinion.

Point two:  People tend only ever to trot out the old ‘tyranny of the majority’ grievance when their side loses.  Take the recent Irish referendum on same-sex marriage.  In my view this is precisely how big ticket change should happen.  Everyone had a say.  Everyone counted.  One side won.  But, as with all democratically resolved issues, it is always open to the losers to try to win the argument later – on abortion, on euthanasia, on those claiming to be refugees, on anything.  So the Irish way is just how I would do this.  The US and Canadian ways, where a handful of unelected ex-lawyer judges tells everyone else that California or Canada (or coming soon, perhaps, the whole of the US) will now have same-sex marriage is a democratic disgrace.  It is better to wait and do it properly, in my view.  (Just by the way, a conscience vote in Parliament is almost as bad as a few judges deciding.  When political parties go to an election with one view and then cheat and allow a vote where a few hundred MPs can vote their conscience, but no one else can, that sucks.  Make it part of your party’s manifesto (as happened in New York State) or have a referendum.

But notice that in Ireland you can quite easily re-frame the whole same-sex marriage debate in terms of ‘rights’.  Maybe you’d articulate it as a conflict between some religious right on one side and some equality right on the other.  The thing about ‘rights talk’ is that it has expanded so massively these days that any and all social policy debates can be characterised (by both sides) in the language of rights.  This means that whichever side loses can claim that loss to be a breach of its preferred right.

But as an empirical generalisation it is much more likely that those on the left of the political spectrum will have recourse to the ‘tyranny of the majority’ trump card.  Did you hear any of the losers in Ireland’s referendum trot it out?  But had the referendum gone the other way do you think you’d have heard it?

I predict that if there’s an Australian referendum on some sort of constitutional amendment to give Aboriginals a special deal of some sort, and it loses (as I think it will), the air will be full of ‘tyranny of the majority’ claims by many of those who want this to come to pass and who regret that you can’t get constitutional change in Australia without asking you, me, and every other voter in the land.

Last point.  Majorities don’t do tyranny very well.  To see real tyranny you need to look at the small coterie of people around Stalin, or Hitler, or Mao, or Pol Pot, etcetera.  These sort of minority groups really know how to do tyranny.  Majorities aren’t in the same league as minorities when it comes to tyranny.  In well-established democracies, such as Australia or New Zealand, majorities struggle to do it ever or at all.  After all, to have tyranny you need more than some people who lost and some people who won on some issue everyone cares about.  No, you need some identifiable group that loses on everything, all the time.

Maybe American blacks in the South during the Jim Crow 1950s fit this characterisation.  And who fixed it for them?  If your answer is ‘the US Supreme Court in Black v Board of Education’, you’re wrong.  It was the elected US Congress with the Civil Rights Act and the Voting Rights Act and the elected executive government being prepared to send in the National Guard.  And did you know that a majority of US whites were at the time against segregation?  This was a federalism problem, not a majoritarian one.

Anyway, be prepared in the coming years for all the usual ABC presenter suspects and Fairfax Media types to trot out the old tyranny of the majority canard as they gear up for this misconceived ‘Recognise’ referendum.

James Allan is Garrick Professor of Law at the University of Queensland and the author of Democracy in Decline