The Difference Between Accuracy and Truth in Democratic Theory
In October 2022, distinguished scholars Rick Pildes and Samuel Issacharoff published a draft of their latest collaboration, an essay titled Majoritarianism and Minoritarianism in The Law of Democracy. As they describe it, the health of a democracy requires structures that facilitate an equilibrium between majority and minority power — including in intrapartisan terms: the minority faction within the majority, the majority faction within the minority, and so forth. To the extent a democracy struggles — as ours currently does — there is a good chance the assumptions on which these structures are based are wrong. They argue that the minority of the majority is a tyrannical force that presents a serious threat to our democracy. In this essay, I articulate two points where I am not fully aligned.
The term ‘minority’ is a relative descriptor. In democratic theory, its meaning depends on the context — race, nationality, partisan allegiance, and ideology are among the most common connotations. The authors leverage the flexibility of the term to explain, in broad terms, tradeoffs inherent to minority rights in a constitutional democracy. No problems here. The next step toward a complete definition, however, is the acknowledgment that all minorities are not created equal. For a variety of reasons, race is unique. If the authors share this belief — and I believe they do — then this was not adequately clarified in the essay.
Given both authors’ scholarship on race, I highly doubt that equivalence is the intended argument. Constitutional law deals with principles and not particulars; to parse every distinction would be to bog the text down. Yet this distinction has bearing on the entirety of their argument. Constitutionally and politically, racial minorities are categorically different from the other variants. Breaking race out from the group is therefore necessary and justified.
Further, the authors advance their argument by testing against several scenarios with constitutional consequence such as campaign finance and primary elections. I will call these verticals. The authors include race as a vertical mistakenly, I argue. What distinguishes race from the other definitions is its horizontal orientation — meaning that race cuts across nearly every vertical.
The consequence of this mischaracterization is confounding bias. If I understand the author’s model correctly, minority status is mostly one dimensional. A successfully implemented corrective structure would balance the interest along that dimension against the constitutional principle at stake. This does not work when the superficial properties of a constitutional dilemma camouflage the actual substance of the contention — as is so often the case in American politics.
The filibuster is an obvious example. This controversial tactic exists in the United States Senate, as well as in most upper chambers of state legislatures. In a legislative context, minority status refers to having fewer votes. Few would dispute the argument that the filibuster is among the most anti-democratic features of our political system. Much of the controversy boils down to the question of how much veto power is appropriate for the minority party. If we were so inclined, how could the filibuster be solved?
My fear is that the logic of the author’s argument would point to a narrow, technical solution oriented around the balance of powers and Article I, when we should now understand that the so-called principles that justify the filibuster are nothing more than a smokescreen. The filibuster exists to kill civil rights legislation. On the surface, it is easy for a debate about the filibuster to get stuck in the realm of legislative process, parliamentary procedure, or even hyperpartisanship. To make that mistake is confounding bias; in reality, the power imbalance of the filibuster is as much about the rights of racial minorities as it is about legislative minorities.
The politics of the privileges and immunities clause is an example from our early history. It would be technically accurate to define this issue as an artifact of federalism. In this case the majority and minority preferences hinge on the axis of the prerogative of the states versus a universal and constitutionally enforceable definition of citizenship. These are clean textbook answers.
One could certainly interrogate the constitutional terms under which this dynamic would place stress. This might lead to insight. But, again, to do so would be to miss the point entirely. Beneath the surface, the privileges and immunities clause was about race. As Kate Masur documents in her excellent history, it was about the states using their police power to harass Black people.
In a similar sense, I think their diagnosis is technically correct, but the emphasis is so misplaced that it obfuscates the truth and verges on incorrectness. The law of democracy, they write, is born in the pursuit of majoritarianism.
It soon shifted to attempting to ensure fair treatment of minority interests in the face of systematic conflict. But we now face the challenge of precluding extreme or factional minoritarian interests from capturing and controlling government.
The most profound thing about this statement is what it doesn’t say. In its studious neutrality, “systematic conflict” implies a a moral symmetry that did not exist. The “minority interests” referenced here are more accurately described as constitutional guarantees. The “systematic conflict” was white supremacy; if they replaced those two words with “Strom Thurmond, Richard Russell, Robert Byrd, William Fulbright and Sam Ervin”, it would be an appropriate correction. In any event, these vague, euphemistic characterizations do a disservice to those who fought for constitutional rights, and to the Constitution itself.
Lastly, “factional minoritarian interests” is unnecessarily abstract. The authors put forward this generalized representation presumably to accomodate other manifestations in the future. Yet the clear and present danger that prompted their essay is the product of racial resentment and appeals to white supremacy, as Liz Cheney has stated unequivocally.
Occam’s razor can save us here. I enjoy the writing of both authors and will continue to do so. But I think this essay misses the mark in important ways. Those that are knowledgable about the nuances of racism in our politics — as these authors are — should deploy that knowledge responsibly so that others may see these issues clearly too.
