In the gun control debate, I often see the claim made that some outlandish percentage of Americans support various proposals such as bans on semiautomatic rifles or background checks for all legal gun transfers. Ninety percent is the favorite number, and this should give advocates of gun control a moment of pause. That many Americans cannot agree that the Earth is an oblate spheroid that is 4.54 billion years old and certainly have not given such vast support to any candidate for nationwide office in my lifetime. But so what? Let us for the moment imagine that a vast majority of any group of people agree on a particular matter. What difference does that make?
I am reminded here of a demonstration that I saw during an elementary school trip to a science museum. The presenter put up a poster of three lines—A, B, and C—with A the shortest, B the middle, and C the longest. One student was removed from the room, while the remainder were told to declare A to be the line of greatest length when the absent child was brought back.
This is, as I later came to learn, the Asch Conformity experiment. Only a quarter of test subjects in the original study would stand by reality against the crowd. Had I been the child invited to stand up against the crowd, the presenter might have been embarrassed, but it is possible that my teacher passed the word along in advance. I also do not recall myself being enthusiastic about pushing a false claim about line lengths, but that may be a bit of self aggrandizement. But the point about the influence of majorities no matter the evidence is one that has stuck with me.
This all illustrates the informal logical fallacy known as argumentum ad populum, the error of claiming that because something is popular, it must be right.
But is this not what a democracy is, namely the rule of the majority? We vote, either directly on referenda or for representatives who will do the sausage making for us, and who or whatever wins the most votes gets to be the way things are, at least until the next election, assuming that everything works and the citizenry accepts the rule of law.
Note that this is not a contest to determine truth in any grand philosophical sense, but is instead a choice of what direction we will all take the country over the near term. And that leads me to the point of this article, the limits that the democratic process must have if it is to function.
Take a famous anecdote in democratic misadventures, the attempt in the Indiana State Legislature in 1894 to define the value of π as 3.2. The bill passed the House of Representatives, but fortunately died in the Senate—something that sounds like contemporary national politics, though today’s Republicans would declare the mathematical constant to have the value of potato if Donald Trump told them to do so. But one Indiana senator did have the wisdom to recognize that a state legislature did not have the power to hand down mathematical facts from on high. This is one example of things that are beyond the reach of the vote.
I would like to think that all matters of fact would be universally acknowledged as being subject to sound reasoning and not to majority opinion, but this is not the world in which I find myself. Republicans cannot even admit that pumping greenhouse gases into the atmosphere is driving up the global average temperature. Democrats—with whom I have many disagreements—do not seem able to bring themselves to do anything about this crisis, but they at least by and large accept that it is real.
But there are other things over which the vote ought to have no authority—no authority, anyway, over their existence or over much of their expression. I have here in mind, my readers will be unsurprised to learn, the subject of rights. I am sorry to learn that Benjamin Franklin did not say that “democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote,” but whoever first coined this idea was on to something. A majority might decide that some minority group who only wish to mind their own business should not be permitted to exist, and a pure democrat would have to accept the results to be ideologically consistent, but such a system will not long remain a democracy—or even a successful society—since the shifting winds of majority whim will eventually blow everyone away. Majorities in many states have at times supported bans on same-sex marriage or on the sale of alcohol as a recreational drink. They have sought to forbid personal pleasures on Sundays or to require the exercise of one particular interpretation of one particular religion. And yes, they have supported restrictions on gun rights.
But for democracy to work, there must be fences around things that are not up to a vote. A functioning democracy requires citizens who are capable of full participation. Such persons can only exist if they are able to draw a line about themselves across which society may not trespass, giving each person the opportunity to develop individually and thereby make a meaningful contribution to the voices of society as a whole. Without privacy, without the choice of the courses of our own lives, without the right to decide to share or not to share those lives with other consenting adults, and without the ability to protect ourselves, we cannot find any uniqueness, nor will we have anything distinct to offer to anyone else. Just as tolerant people cannot tolerate everything, a democracy cannot vote on everything. It must be limited by a constitution that sets off by boundaries areas into which the majority will may not go.
I've always thought the Founders erred in not including provision for unalterable (or irremovable) amendments that dealt with the protection or expansion of rights.