Tag Archives: tyranny of the majority

What is Judicial Reform? Part 2: Boiling it down

Part 1 of ‘What is Judicial Reform’ explored the roots of our nation, the Federalist Papers, the “tyranny of the majority.”  (Part 1 here).

That post reviewed that Madison (Publius) cautioned that we should never ration liberty.  The solution is to protect liberty by controlling tyranny.

As we assess what can be changed for the better in our courts, it’s important to remember our roots.

This post boils down what I think the judicial reform movement is all about.

1.     A judge cannot be a king.  The founders of this country affirmatively rejected monarchy as a form of government.  They sought to remove the “king” from the system. They were tired of the reason for government actions being, “because I said so.”  We need to remember that, and make sure it’s applied to the judiciary, and not just the executive branch.

Judges were not meant to be the “kings” of their courtroom.  The founders did not envision that judges would do whatever they wanted, merely beause they are a judge.

It is antithetical to our form of government to let any man be a king.

2.  The reasons for judicial decisions cannot be secret.

Kings make up laws as they go along.  They change the law when they want to.  Dictators keep the law secret.  They keep their subjects off balance by preventing them from knowing the rules (he who makes the rules wins).

In a democracy, we decided long ago that the law would be public.  There is no point in the law otherwise.  It’s by making laws public that we give people the chance to conform their conduct.

Secret laws keep the public off balance, they give power to those who create them, and who change them at will.  Secret laws make people kings.

(And we know from #1 – judges cannot be kings.)

3.  If it’s not about applying the law, the system makes no sense.

Judges are given authority and power so they can apply the law.  If we waver from this, if we let judges make decisions based on secret criteria, the system makes no sense.

Secret laws aren’t always written on paper – hidden in the back room somewhere (although sometimes they are!).  When I speak of hidden rules, I also mean the culture of how judges decide among themselves how they will rule.  I am also referring to the “back room deals” that do exist in our system.

Because none of that is about the law.

We can’t keep the culture because it’s comfortable.  If we need to make big change to get back to our roots – so be it.  That’s what reform is all about.

Judicial reformists say, “why should we (the public) pay lots of tax money for a system that does not make sense?”

4.  Applying the law also means following the law.

I try as much as possible to credit those judges who do follow the law.  I acknowledge them here.

But there are judges who either decide to do it, or who drift unconsciously into a place where they act like they are above the law.

If they think people don’t notice – judicial reformists are here to say they do.

Judges who act like they are above the law is a hot issue for judicial reformists.

Those who are charged with enforcing the law must obey the law.

A system that does not require its judges to obey the law sends the message that it’s not about the law, it’s about status, or who has friends in the system, or who has money.  That does not encourage self-compliance.

And without self-compliance, the system falls apart.

5.  The judicial branch is supposed to be the watchdog.

The courts are not just “one more” branch of government.  The judicial branch was created to help protect the public from the tyranny of government and the tyranny of the majority.

  • Keeping the executive in check.  This is easily seen in the courts’ watchdog role over the exeucutive branch.  For example, if the city government won’t give you public documents, you can sue in court to enforce sunshine laws.
  • Keeping the legislature in check.  Since Marbury v. Madison, courts have kept the legislature in check by assessing the constitutionality of statutes.  If if the ‘majority’ wants a statute, the statute might still offend the constitution – usually an issue of the courts protecting individual rights.

If courts give up this role, if they “side” with goverment, if they “protect” government workers from other branches from being accountable under the law, instead of forcing them to obey the law, we have lost our way.

6.    It’s about equal rights.

The majority opinion should not automatically prevail in court.

The court is the place the individual who goes against the grain, who believes something different, who does not acede to the majority – has an equal chance of winning.

The courts are the place the ‘little guy’ should be able to come, feel safe, feel confident that the law will be applied – not some popularity contest.

That’s what is means to put the law above politics, to put it above gossip and junior high vendettas.

Judges who are worried about “what their friends will think” if they rule in favor of the “unpopular” person or belief, or whether they will get an angry phone call from the sheriff, or what other judges will say at the Friday morning breakfast, probably don’t belong in the job.  That’s not the rule of law – that’s the rule of men.  And it’s killing this great institution.

7.  It takes effort to do the real work of judging.

I’ve seen judges favor police, favor prosecutors.  I’d go so far as to say that some bench cultures give prosecutors everything they want.  I’ve observed judges refuse even to consider that police engaged in bad conduct.

That’s a refusal to follow the law.

Judicial reformists have a pretty good idea how so many innocent people end up in prison.

I’ve also observed judges protecting the “budget” of another branch.

I’ve watched judges insert language in their order that is obviously designed to protect some government worker.  I’ve seen this happen when that wasn’t even an issue raised by the parties.

If judges so identify with public workers that they are willing to disregard the facts and the law to protect these people from being held accountable, the system falls apart.

Judges are supposed to protect the public.  Nowhere is it written that they should worry about how much it will cost the executive branch if a social worker is found to have engaged in bad conduct.  Nowhere is it written that judges should protect criminal prosecutors from every Brady motion, because that is also an ethics violation for them.  Writing this type of policy into the case, without opening discussing it in case law, is a type of secret law.

8.  Don’t do what’s natural, do what’s right.

This misuse of power by judges might be natural.  Because they are themselves employees of government, they may drift into a place where they want to protect people like them.  Those thoughts are natural.  But that instinct must be overcome to do the real work of judging.

People who come to court are often emotional about their own story.  That’s natural; it’s instinct.  Judges ask those people to put the emotion aside while interacting with the court.

Judges ask people to be thoughtful about their responses.  To quantify the damage.  To intellectualize the harm.

What’s good for the goose is good for the gander.

Judicial reformists ask judges to put aside instinct, stop doing just what’s natural or easy.  We (the public) need you to make a conscious effort not to drift into tyranny.

Our liberty depends on it.



What is Judicial Reform: Part 1: Tyranny of the Majority

There is a lot of discussion about judicial reform throughout the country.  But what is it?  It is a healthy sign of our democracy that a number of different groups with differing philosophies claim the name, ‘judicial reform.’  What are the common threads in the judicial reform philosophies?

And what are the differences?

Surely, a book could be written on this topic.  This series of posts is a brief discussion.

America’s Roots:  The Federalist Papers

Many branches of the judicial reform movement harken to the roots of our system of government.

When potential ratification of the US constitution was being discussed in 1787-88, Publius published arguments in favor of the constitution.  These papers have now been attributed to James Madison, Alexander Hamilton and John Jay.  In the 20th Century, the compilation of those articles became called The Federalist Papers.  Every political science major in the 20th Century likely studied them.  Federal judges have cited to them.

It’s never wrong to review the theoretical foundation of our system of government.  Even with the lapse of years, there are always lessons to be learned from our roots.  But like any analytical tool, this review should be kept in perspective.  There is simply no way that Hamilton, Jay and Madison could have predicted our 2012 world.  (Although if they were alive and writing today, I bet they’d have a blog….).

Of course, The Federalists were not writing on a blank slate.  They, each in turn, were influenced by philosophers and other writers of their time.  Madison, it is said, drew from the works of Montesquieu and Hume, and other writers of the enlightenment.  And The Federalists’ writings have been commented on over time.

Tyranny of the Majority.

In conceptualizing a governing democracy, Federalist 10, now attributed to Madison, warned of the danger of factions.  Madison defined faction as “a number of citizens, whether amounting to a minority or majority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”

The danger of factions was tyranny – otherwise known as oppressive power.

Because the form of democratic government emphasized the will of the people by majority vote, Madison warned that the mischiefs of democracy would swallow the benefits.

“A pure democracy can admit no cure for the mischiefs of faction. A common passion or interest will be felt by a majority, and there is nothing to check the inducements to sacrifice the weaker party. Hence it is, that democracies have ever been found incompatible with personal security or the rights of property; and have, in general, been as short in their lives as they have been violent in their deaths.”

For Madison, it was impermissible to restrict liberty.  “The latent causes of faction are thus sown in the nature of man,” so the cure is to control their effects.

Over time, this concept (also discussed in Federalist 51) has become known as the tyranny of the majority.

Alexis de Tocqueville in Democracy in America Vol. I, published in 1835, posited that the dangers of the tyranny of majority over thought in America would lead to violence of party spirit and the judgment of the wise subordinated to the prejudices of the ignorant.

Published in 1859, John Stuart Mill’s work On Liberty discussed the tyranny of the majority as the “struggle between authority and liberty.”  This described the tyranny of government over the people, which must also be controlled.  And certainly, ‘liberty’ is a theme that frequently emanates from the pen of a judicial reformist.

These twin tyrannies (by the majority of the people and by government over the people) have been met in various ways in our democracy.

The Bill of Rights as Protector of Individual Liberty.

Of course, the US Constitution was ratified.  But shortly thereafter, several amendments were added in order to protect individual liberties, such as the First Amendment protecting free speech, association, and freedom of religion and the Fifth Amendment, which guarantees that the federal government will not deprive an individual of freedom or property without due process of law.  These are often called the Bill of Rights.

The US Supreme Court has over time applied the substantive liberty protections of the Bill of Rights to protect individuals from the tyranny by state governments.

US Justice Brandeis wrote in 1927,

Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law — the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed.

Concurrence here.

The Role of the Courts in Protecting Individual Liberties.

Justice Brandeis was, of course, discussing the role of the courts in protecting the individual freedoms at issue.  And in particular, he was discussing the court’s role in deeming a majority vote by legislative enactment a violation of individual liberty.  (Now, we generally refer to this as the court’s review of the constitutionality of a statute.)

Indeed, a ‘cornerstone’ of our current system of government is the role of the courts in protecting individual liberty.

In 1900 US Supreme Court Justice Harlan wrote,

The doctrine of legislative absolutism is foreign to free government as it exists in this country. The cornerstone of our republican institutions is the principle that the powers of government shall, in all vital particulars, be distributed among three separate coordinate departments, legislative, executive and judicial.  And liberty regulated by law cannot be permanently secured against the assaults of power or the tyranny of a majority, if the judiciary must be silent when rights existing independently of human sanction, or acquired under the law, are at the mercy of legislative action taken in violation of due process of law.

Case here.

Why is this Relevant Now?

Minnesota and other parts of this nation are engaging in a struggle of factions and a debate about current government control, and how all of this affects liberty.  The debate?  How are members of the judiciary to be selected?  And when and how does the public have a role in what occurs in the judiciary once those judicial officers have been selected?  I’ll get into some particulars in my next post in this series.

But can it ever hurt for us as a debating community to remember our roots?  To remember the theoretical debate that spawned and shaped the three branches of government, and to intelligently, consciously select options grounded in law and liberty?

Justice Brandeis also wrote in 1927,

Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.

And I leave you with the notion that there is time and opportunity for full discussion.  Indeed, to prevent this debate from being marked by fear of change, holding onto current power, or silencing critics, all of those involved are called upon for fearless reasoning befitting our education, in furtherance of our political duty, and out of respect for the liberty that has been so long preserved by those who came before us.