I mention this because I recently read an interview in The Atlantic with Ryan Williams, the president of the Claremont Institute, a right-wing think tank with strong ties to Donald Trump and his movement, in which he makes the argument that minority rule is as legitimate as majority rule.
I reject the premise that just because the popular vote isn’t won, you don’t possess a constitutional majority. We have an Electoral College system for a reason. Democracy, for the Founders, was a means to the end of the protection of rights. They set up a republic, not a democracy. The rule of pure numbers was never the touchstone of justice for the Founders.
What caught my eye there is Williams’s use of the term “constitutional majority,” to refer to an electoral majority that does not represent a popular majority. Williams uses it to defend — even to extoll — the legitimacy of minority government, but what’s interesting is that it was first used, as far as I can tell, in defense of majority rule.
Over the summer, I wrote about an unpublished 1834 letter from James Madison on the subject of “majority government.” It was a direct response to the nullification crisis of the early 1830s and the argument, made most trenchantly by Senator John Calhoun of South Carolina, that states had the right to nullify federal laws that abrogated their rights. In his letter, Madison argues that there’s no viable or impartial principle for self-government other than majority rule, especially in a nation of diverse, opposing interests: “The vital principle of republican government is the lex majoris partis, the will of the majority” and “if the will of a majority cannot be trusted where there are diversified and conflicting interests, it can be trusted nowhere.”
Having said that, Madison concedes that in any system of elective government, there is the chance of choosing a government that does not represent a majority of the people. This, he says, is a problem, because the popular majority might feel oppressed by the minority in power. “That this departure from the rule of equality, creating a political and constitutional majority in contradistinction to a numerical majority of the people, may be abused in various degrees oppressive to the majority of the people is certain; and in modes and degrees so oppressive as to justify ultra- or anti-constitutional resorts to adequate relief is equally certain.”
In other words, governments need popular consent for legitimacy, and when they do not have it, they run into trouble. Indeed, in Madison’s formulation, the “constitutional majority” is something of a problem to be solved, not an intended outcome of the process. And to that end, he believes the best solution to the problem of a minority government is to change the rules of the game.
“Still,” he writes, “the constitutional majority must be acquiesced in by the constitutional minority whilst the Constitution exists. The moment that arrangement is successfully frustrated, the Constitution is at an end. The only remedy therefore for the oppressed minority is in the amendments of the Constitution, or a subversion of the Constitution — this inference is unavoidable. Whilst the Constitution is in force, the power created by it whether a popular minority or majority must be the legitimate power and obeyed.”