Some tyrannies of the majority are seemingly better than others
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Some tyrannies of the majority are seemingly better than others

This talk of tyranny of the majority has been frequent for a while particularly when a pro-Thaksin party is in government. It seems almost a daily warning in The Nation. Suthep calls its “the tyranny of the parliamentary majority” or “dictatorship of the majority” as per the view of the judicial overlords. Last year, the government started to amend the constitution to set up  a constitutional drafting assembly to rewrite the constitution and then hold a referendum, but were stymied by the Court who suggested a referendum to be held first before even establishing a constitution drafting assembly on whether people wanted the constitution amended. The Democrats opposed Puea Thai’s plan.

However, PDRC wants a People’s Assembly to run the country for a while – one leader says 12-18 months – and there will be a committee up to 400 members with 300 coming from professional groups and 100 being selected by the PDRC.  Then, sometime next year there will be a referendum on their reform proposal.

BP: So it seems if the tyranny of the majority is “bad” if the majority is the people’s elected representatives set up their body to amend the constitution, but it will be “good” when the minority set up their own little body and the majority of that body makes a decision. How else do you think the minority will decide internally how to proceed? Singing kumbaya? No, there will be some internal vote at some point and the majority view will move forward.* Will the Court stymie the People’s Assembly reform? Or will their tyranny of the majority** be deemed better than than from the government?

*The alternative is they stack the entire 400 with anti-Thaksinities and well there is no minority at all….

** Have blogged this before, but it really needs to be repeated with talk of this tyranny of the majority nonsense. BP will confess to want to rant more about the ridiculousness of talk of the dictatorship/tyranny of the majority, but why type up arguments oneself when can you simply quote NYU Professor Jeremy Waldron from ”The Core of the Case Against Judicial Review,” 115 Yale Law Journal 1346 (2006) at 1391:

Nevertheless, if legitimacy is a comparative matter, then it is a staggeringly inadequate response. The system of legislative elections is not perfect either, but it is evidently superior as a matter of democracy and democratic values to the indirect and limited basis of democratic legitimacy for the judiciary.Legislators are regularly accountable to their constituents and they behave as though their electoral credentials were important in relation to the overall ethos of their participation in political decisionmaking. None of this is true of Justices. Second, even if we concede that vexed issues of rights should be decided by these nine men and women, why should they be decided by simple majority voting among the Justices?

Then at 1395-1396:

The concern most commonly expressed about the work of a democratic legislature is that, because they are organized on a majoritarian basis, legislative procedures may give expression to the “tyranny of the majority.” So widespread is this fear, so familiar an element is it in our political culture, so easily does the phrase “tyranny of the majority” roll off our tongues, that the need for judicially patrolled constraints on legislative decisions has become more or less axiomatic. What other security do minorities have against the tyranny of the majority?

I believe that this common argument is seriously confused. Let us grant, for now, that tyranny is what happens to someone when their rights are denied. The first thing to acknowledge is that, according to this definition, tyranny is almost always going to be at stake in any disagreement about rights. In any disagreement about rights, the side in favor of the more expansive understanding of a given right (or the side that claims to recognize a right that the other denies) will think that the opposite side’s position is potentially tyrannical. For example, the peyote smokers will think the subjection of their sacraments to generally applicable narcotics laws is tyrannical. Opponents of campaign finance laws will think those laws are tyrannical. But it is an open question whether they are right. Some of these claims about tyranny are no doubt correct. But they do not become correct simply because they are asserted. Indeed, in some cases, there will be allegations of tyranny on both sides of a rights issue. Defenders of abortion rights think the pro-life position would be tyrannical to women; but the pro-life people think the pro-choice position is tyrannical to another class of persons (fetuses are persons, on their account). Some think that affirmative action is tyrannical; others think the failure to implement affirmative action programs is tyrannical.

Democratic institutions will sometimes reach and enforce incorrect decisions about rights. This means they will sometimes act tyrannically. But the same is true of any decision process. Courts will sometimes act tyrannically as well.Tyranny, on the definition we are using, is more or less inevitable. It is just a matter of how much tyranny there is likely to be, which was the subject of our discussion in Part IV.

Is the tyranny of a political decision aggravated by the fact that it is imposed by a majority? I leave aside the pedantic point that a court may also reach its decision by majority voting. Is tyranny by a popular majority (e.g., a majority of elected representatives, each supported by a majority of his constituents) a particularly egregious form of tyranny? I do not see how it could be. Either we say that tyranny is tyranny irrespective of how (and among whom) the tyrannical decision is made, or we say—and this is my view—that the majoritarian aspect actually mitigates the tyranny, because it indicates that there was at least one non-tyrannical thing about the decision: It was not made in a way that tyrannically excluded certain people from participation as equals.

BP: Indeed….