Essay 33: The Majority In The United States Is All-Powerful And The Consequences Of That (Vol. 1 Pt. 2 Ch. 7, Subchs. 1-3)

Essay Read by Constituting America Founder, Actress Janine Turner

The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 235 (start at chapter 7 heading) – 243 (stop at “On the Power that the Majority in America…) of this edition of Democracy in America.

On the Omnipotence of the Majority in the United States and Its Effects

For De Tocqueville, unchecked majority rule within the states presented problems. The national government, he observed, was more independent of public opinion and largely limited itself to foreign affairs, leaving state governments to dominate American society.

De Tocqueville argued that state constitutions dangerously inflated the power of the majority. State legislators served short terms and were elected directly by the people, and so reflected “the daily passions of their constituents.” Bicameral legislatures failed to check the majority because both houses represented the same social class and both were popularly elected. The executive and judicial branches could not serve as effective checks. State governors, who were often selected by the legislatures for short terms of office, lacked the necessary independence. In several states, even judges were elected, and legislators controlled their salaries. Making matters worse was a growing tendency on the part of voters to limit lawmakers’ discretion with binding instructions.

Popular attitudes tended to enhance the authority of the masses. “The moral empire of the majority,” De Tocqueville wrote, “is founded in part on the idea that there is more enlightenment and wisdom in many men united than in one alone.” Americans also believed “that the interests of the greatest number ought to be preferred to those of the few.” They could accept what De Tocqueville called “the tyranny of the majority” because Americans were not divided by “irreconcilable interests;” minority parties could always hope to form a majority in the future. Unfortunately, he added, the will of the majority was so overbearing that it could not be delayed long enough “to hear the complaints of those it crushes,” a tendency that he warned could have dangerous consequences in the future.

The Omnipotence of the Majority and Legislative and Administrative Instability

Whatever dangers America’s freewheeling democracy posed to the nation’s future, De Tocqueville saw immediate problems in its legal system and in public administration. State constitutions aggravated the instability inherent in democracy—he assumed public opinion could change quickly and dramatically—by consolidating power in state legislators and then providing for their annual election. As evidence of instability, De Tocqueville pointed to the state constitutions themselves: almost all of them had been amended within the last thirty years. Ordinary statutes meanwhile proliferated. He considered Massachusetts to be the best governed of the states, but new bills passed by the Massachusetts assembly since 1780 had already filled three large volumes, and that was after an 1823 revision in which a number of obsolete laws were repealed.

Democratic instability also frustrated attempts to implement policy. De Tocqueville cited prison reform in Pennsylvania as an example. In the 1780s, reformers in the Keystone State–he apparently had the Quakers in mind—had pushed for the construction of new prisons built with rehabilitation in mind. But because the entire system could not be reconstructed at once, the older, more punitive prisons, which De Tocqueville described as “dungeons,” persisted, and once public interest in prison reform waned, grew even more brutal.

The Tyranny of the Majority

In addressing the tyranny of the majority, De Tocqueville confessed a personal dilemma: he deplored the idea that the majority had the right to do whatever it pleased, and yet he conceded that all legitimate political power was derived from “the will of the majority.”

De Tocqueville attempted to resolve his dilemma by appealing to universal principles of justice which transcended the laws of a single jurisdiction. When he refused to obey an unjust law, he wrote, he was appealing “from the sovereignty of the people to the sovereignty of the human race.” If one nation might abuse another, and if one individual might abuse a neighbor, why would we deny the capacity of a majority faction to violate the rights of a minority? He rejected “mixed government,” in which competing interests were combined to check and balance one another, as a solution. England, often cited as a model of mixed government, was, De Tocqueville argued, actually an aristocracy. Some superior “social power” would always exist, but justice required it be subject to a moderating influence.

Majority tyranny was rare in America, but when it erupted the law could not contain it. At the start of the War of 1812, pro-war mobs in Baltimore repeatedly attacked the offices of an anti-war newspaper and killed one of the editor’s defenders. In Pennsylvania, free blacks enjoyed a legal right to vote, but fearing white reprisals, feared to exercise it. The states, De Tocqueville concluded, needed executives and judges with greater independence and legislators who would represent the majority without being “the slave of its passions.”

Majority Power and the Arbitrariness of Officials

Majority support, De Tocqueville observed briefly, often permitted American officials to exceed their authority and act arbitrarily, a habit he feared might “one day become fatal” to freedom.

Jeff Broadwater’s publications include Jeffferson, Madison, and the Making of the Constitution (2019); James Madison: A Son of Virginia and a Founder of the Nation (2012); and George Mason, Forgotten Founder (2006). He also co-edited, with Troy Kickler, North Carolina’s Revolutionary Founders (2019). He currently serves as the book review editor for the Journal of the North Carolina Association of Historians.

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