Listening to the news on NPR yesterday, we heard this:
HOST: Without being named, what are the president’s defenders saying on the record?
REPORTER: You know, they are saying that this process was flawed, that the president did nothing wrong, that he was fully within the bounds of presidential power and that the articles fall short of any sort of constitutional standard for removal.
But the argument that they are making again and again that they made at the beginning and the end of their arguments before the Senate is that there is an election just nine months away, so why not let the people decide? That’s what Pat Cipollone, the White House counsel, said on the Senate floor:
PAT CIPOLLONE: What they are asking you to do is to throw out a successful president on the eve of an election with no basis and in violation of the Constitution. It would dangerously change our country and weaken – weaken – forever all of our democratic institutions. You all know that’s not in the interest of the American people. Why not trust the American people with this decision? Why tear up their ballots? Why tear up every ballot across this country? You can’t do that.
…remember our post on tyranny of the majority that we keep updating and re-posting every time gay rights are questioned? Hey, we’re posting it again!
Because what Mr. Cipollone suggests is that we bow to tyranny of the majority. He clearly says that if the majority of American voters want to elect a person who will violate our Constitution, we must let them do that. We must “trust them with that decision.” If voters don’t like violations of our Constitution, then they won’t vote for Trump again, and justice will be done.
But that’s not democracy and justice as we have established them in this country. If the majority of the people support injustice, there has to be a way to save the country from them–and there is. It’s called the judiciary, and, in this case, the impeachment process, which is a trial, and therefore overseen by the Chief Justice of our highest court.
If we concede that the majority of voting Americans want injustice (which we at the HP do not concede, but just for the sake of argument), we can’t just say “well, majority rules!” and let it be. The majority does not rule in the United States if they are attempting to institutionalize injustice. If the majority of Americans support a premise and practice that is unconstitutional, they are overruled. Because in the United States, our founding principles must be upheld, even if only by a minority.
In this moment, we must let an impeachment trial decide the matter, not the voters. Even if the majority of American voters went against Trump this fall, it would still be wrong to “let the voters decide.” Majority does not rule–the Constitution rules.
Here’s the original post, once again, ready to be fully applied to the validity of impeachment over election:
The California Supreme Court’s decision that banning gay marriage is unconstitutional has been met with the by-now common complaint that the Court overstepped its bounds, trampled the wishes of the voters, and got into the legislation business without a permit.
A review of the constitutionally described role of the judiciary is in order.
The famous commentator on American democracy, Alexis de Tocqueville, talked a great deal in his books Democracy in America about the tyranny of the majority. This is when majority rule—the basis of democracy—ends up perverting democracy by forcing injustice on the minority of the public.
For example, slavery was an example of the tyranny of the majority. Most Americans in the slave era were white and free. White and free people were the majority, and they used their majority power to keep slavery from being abolished by the minority of Americans who wanted to abolish it. The rights of black Americans were trampled by the tyranny of the majority.
Before Brown v. Board of Education in 1954, the majority of Americans were fine with segregated schools. They used their majority power to oppress the minority of Americans who were black, or who were white and wanted desegregation.
In each example, the majority is imposing and enforcing injustice which is incompatible with democracy. They are tyrannizing rather than governing.
The judiciary was created to break this grip of majority tyranny. The legislature—Congress—cannot usually break majority tyranny because it is made up of people popularly elected by the majority. But the appointed judiciary can break majority tyranny because its sole job is not to reflect the wishes of the people but to interpret the Constitution.
If the judiciary finds that a law made by the legislature perverts democracy and imposes the tyranny of the majority, it can and must strike that law down. This is what happened in California. The court found that although the majority of Californians (as evidenced by a previous referendum) had voted to ban gay marriage, that majority was enforcing and imposing injustice on the minority. So the court found the ban unconstitutional.
This is not beyond the scope of the judiciary, it’s exactly what it is meant to do.
We heard a commentator yesterday saying the California court should have left the issue to “the prerogative of the voters”. But if the voters’ prerogative is to oppress someone else, then the court does not simply step aside and let this happen.
The same people who rage against the partial and biased justices who lifted this ban are generally the same people who would celebrate justices who imposed a ban on abortion. People who cry out for impartiality are generally only applying it to cases they oppose.
So that’s what the judiciary does: it prevents the tyranny of the majority from enforcing injustice in a democracy. Like it or not, the “will of the people” is not always sacred, and sometimes must be opposed in the name of equality.