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Are Porn Laws and Quarantines Part of the ‘Tyranny of the Majority?’

Or is there something more much coercive going on that has a much more psychological impact, and silencing effect?

Recently, porn star Brandi Love writing at The Federalist cited Alexis de Tocqueville and his use of the phrase, “the tyranny of the majority,” in her defense of pornography, arguing that “the First Amendment, as part of the Bill of Rights, protects the viewpoints of those in the minority from being oppressed.” Another recent article at Being Libertarian, in turn, suggests that excessive enforcement of quarantine restrictions — vis-a-vis the COVID-19 epidemic— tends toward a “tyranny of the majority.” And, quite curiously, one can find those who label the electoral college a deterrent against the “tyranny of the majority,” or a clear example of it. What, exactly, is the “tyranny of the majority,” what did it’s originators intend when they coined it, and what contemporary examples accurately manifest it?

For starters, Tocqueville is widely credited with originating the phrase, but it, or something very similar, was employed by several others before him. James Madison, writing in Federalist 10 in 1787, warned of the destabilizing effect of “the superior force of an interested and overbearing majority” on a government. John Adams, writing in March 1788 in defense of the Constitution and a “mixed government , consisting of three branches,” called “a single sovereign assembly, each member…only accountable to his constituents; and the majority of members who have been of one party” a “tyranny of the majority.” Irish political theorist Edmund Burke, writing in a 1790 letter, asserted that, “the tyranny of a multitude is a multiplied tyranny.”

Nevertheless, it is the French political theorist Tocqueville, perhaps more than any other, who popularized the concept of the “tyranny of the majority.” In Part I, Chapter 8 of Democracy in America, on the Federal Constitution, Tocqueville observes that “democracies are naturally inclined to concentrate all the power of society in the hands of the legislature,” which “establishes the tyranny of the majority.” In other words, without any mediating institutions, whatever the people will is reflected through the legislature, whose members are directly selected by and accountable to the electorate. Elsewhere, in Part II Chapter 7, Tocqueville cites Thomas Jefferson, who argued in 1789 that “the tyranny of the legislators is the most formidable dread at present, and will be for years.” Thus, Tocqueville reasons, the Founders created a separation of powers between the legislative, executive, and judicial branches. The Senate, with its longer terms and more senior members, and the electoral college, also temper this concentration of power. That pretty well syncs with Adams’ use of the phrase cited above.

Tocqueville expands on this idea in Part II, Chapter 7. He notes the “immense actual power and a power of opinion almost as great” possessed by the American majority. Indeed, this power is so expansive, “the only authority one wishes to please is the majority, all its projects are supported with enthusiasm; but as soon as its attention is drawn elsewhere, all efforts come to an end.” In other words, the fickleness of majority opinion leads to a certain schizophrenia in government, as politicians, beholden to the voters, are frequently forced to shift gears. 

But the power wielded by the majority can be even more insidious. Says Tocqueville:

And what I find most repulsive in America is not the extreme freedom that prevails there but the shortage of any guarantee against tyranny. When a man or a party suffers from an injustice in the United States, to whom can he turn? To public opinion? That is what forms the majority. To the legislative body? That represents the majority and obeys it blindly. To the executive power? That is appointed by the majority and serves as its passive instrument. To the public police force? They are nothing but the majority under arms. To the jury? That is the majority invested with the right to pronounce judgments; the very judges in certain states are elected by the majority. So, however unfair or unreasonable the measure which damages you, you must submit.

Tyranny may thus manifest itself not only in tangible, political pressure, but in the “effects of modern majoritarianism on thought,” as University of Oklahoma professor Donald J. Maletz interprets the French thinker. This, explains Maletz, is a “soft tyranny” over the mind, “not a defect of democracy but its direct implication.” Notre Dame professor Patrick J. Deneen, writing on Tocqueville, calls this effect an “internalized psychological control, an anticipation of disapproval by majorities and a concomitant attempt to avoid public commitment on any issue.” The result, paradoxically, is a “loss of actual influence in political life,” as “democratic man retreat[s] constantly before the potential indignities of public life,” writes Deneen.

Mass media, augmented by social media, presents a perfect example of this psychological effect on democracy. In our “cancel culture,” citizens who violate the sentiments of the majority—say, in their comments on gender identity, sexuality, or quarantine restrictions—become the objects of public censure until they repent and show proper deference to the opinions and ideologies of the majority.

Trea Turner, shortstop of my beloved Nationals, was one such object, once someone dug up “homophobic” tweets he wrote while in college, including using “gay” as a derogatory slur. “There are no excuses for my insensitive and offensive language on Twitter,” Turner quickly announced, while Nationals General Manager Mike Rizzo called Turner’s comments “inexcusable” and declared that he had personally spoken with the shortstop.

Tocqueville identifies several moderating forces against the potential for a “tyranny of the majority.” One is the “absence of administrative centralization,” as local municipal and county authorities operate as barriers to the imposition of public will. Others are attorneys, whose love of law, order, and procedure offer a counterbalance to majoritarian sentimentality (apparently Tocqueville met no ambulance-chasers or those skilled in emotional court rhetoric while in the United States). The jury system, inherited from the English, does something similar, sobering men as they recognize that they, too, could be the subject of a criminal hearing or lawsuit.

Thus we see two different forms of majoritarian tyranny described by Tocqueville: one the concentration of power in one government body, the other a social and psychological paradigm that imposes uniformity of opinion on citizens who fear reprisals or social excommunication. However, the ambiguity of what constitutes tyranny allows contemporary appropriators of this “Tocquevellian” phrase to direct it at anything the majority believes which they don’t like. Indeed, many antebellum Southerners categorized Northern opposition to the institution of slavery—and attempts to limit or abolish it—as “tyrannical.” Which, given we’re talking about the enslavement of a particular race of people is ironic, to say the least. Alternatively, that a majority of Americans still view polygamy, pederasty, or bestiality as morally abhorrent is perceived as “tyrannical” for those who would like to see such practices legalized.

Thus, as a political concept, warnings of a “tyranny of the majority” must be tethered to other fundamental principles, lest it lose its probity and political potency, and be wielded as carelessly as the words “freedom” or “liberty.” Many of these principles can be found elsewhere in Tocqueville: the perpetuation of important American habits and customs that encourage virtue and sacrifice; the encouragement of religious belief and practice to instill virtue in citizens; and active participation in local civic and voluntary organizations. Viewed through this lens, informed by a more robust conception of “the common good,” it’s hard to imagine Adams, Madison, Jefferson, or Tocqueville viewing restrictions on pornography—with its many well-established detrimental effects—as “tyrannical.” Nor would they label the electoral college as such, given they viewed that precise political lever as a moderating force against majoritarian tyranny. As for enforcement of quarantine restrictions… well, tackling that would require another article.

Casey Chalk covers religion and other issues for The American Conservative and is a senior writer for Crisis Magazine. He has degrees in history and teaching from the University of Virginia, and a masters in theology from Christendom College.

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