A majority taken collectively is only an individual, whose opinions, and frequently whose interests, are opposed to those of another individual, who is styled a minority. If it be admitted that a man possessing absolute power may misuse that power by wronging his adversaries, why should not a majority be liable to the same reproach? Men do not change their characters by uniting with one another; nor does their patience in the presence of obstacles increase with their strength. For my own part, I cannot believe it; the power to do everything, which I should refuse to one of my equals, I will never grant to any number of them.
-Alexis de Tocqueville, "Democracy in America."
That reasoned argument against what de Tocqueville called "the tyranny of the majority" is a total crock. A bunch of hooey. Liberal claptrap from a French intellectual with no real understanding of democracy. Never mind that James Madison agreed in the Federalist Papers, warning of "the superior force of an interested and overbearing majority" -- Madison was just some loonie leftist. The majority is all-powerful. If you can get enough people to agree with you, you can do anything you want to anybody. There are no such thing as rights, only privileges that can be voted away at any time. Get enough people together and you can even take someone's First Amendment rights away -- if people don't like what you're saying, they can use the power of democracy to shut you the hell up.
So sayeth that great American patriot Kenneth Starr. Best known for an unsuccessful witch hunt against then-President Bill Clinton, Starr is the dean of Pepperdine law school -- which makes you wonder what kind of education Pepperdine law students get for their money.
At issue was California's Prop. 8 -- a ban of same sex marriage. The state Supreme Court had previously ruled that gays and lesbians had the right to marriage. Prop. 8, which passed as a referendum, would remove that right and retroactively undo the marriages that have occurred since the court's ruling.
But, since the court ruled that marriage was a right, not a privilege, Prop. 8 became a classic example of the "tyranny of the majority" -- with a simple majority vote, Californians took a right away from a minority group. The ballot measure is now in California's Supreme Court, where Ken Starr -- representing Prop. 8 supporters -- argued yesterday that there's really no such thing as "rights." At least, not if you're in the minority.
"Swallow the bitter pill and act with diligence if one is weak, enjoy all one's rights if powerful: that's my doctrine," wrote the Marquis de Sade. Starr apparently agrees.
The people "have the raw power to define rights," he told the court while arguing in favor of invalidating over 18,000 marriages.
"The right of the people is inalienable to change their constitution through the amendment process," said Starr. "The people are sovereign and they can do very unwise things, and things that tug at the equality principle."
Chief Justice Ronald George posed a hypothetical: what if the majority demanded the right to free speech be revoked?
"After much banter back and forth, Starr says they do," reported Advocate.com. The Los Angeles Times reported similarly on Starr's alarming response.
So, if the majority votes that you should shut up, by God you'd better shut the hell up. In Starr's world, rights are a legal fiction. The founders basically argued that the person and the person's rights were one thing, inseparable -- "unalienable" as the Declaration of Independence put it. But Ken argues that your rights are granted to you by majority rule and can be taken from you at any time, presumably for any -- or no -- reason. As I've already pointed out, those aren't rights, those are privileges. Starr argues that people in California -- and Americans in general -- don't actually have rights.
What the right is really worried about here is the "normalization of homosexuality." When you get right down to it, same sex marriage is harmless -- it can't possibly have any effect on your life if your not in that marriage. If you're outside that family, what that family consists of can't possible harm you. There is no rational reason to oppose marriage equality.
However, "rational" is a bad description of the religious right. They're so panicked at the idea that same sex couples would be considered just people and not monsters that they're willing to give away all the guarantees they have to any rights at all. By Starr's argument, people could literally vote to bar Christians from holding office. But hey, that's better than having to look at two male or two female dolls on top of a wedding cake.
But the "normalization of homosexuality" is pretty much a done deal. Regardless of how people feel about marriage equality, the idea that homosexuality is some sort of national problem is losing ground rapidly. The religious right isn't just losing that fight, they've lost it. Same sex marriage isn't a question of "if," but "when."
A Harris Interactive poll taken after the 2008 elections found that "Three-quarters of U.S. adults (75%) favor either marriage or domestic partnerships/civil unions for gay and lesbian couples. Only about two in 10 (22%) say gay and lesbian couples should have no legal recognition." The numbers for legal marriage alone, as opposed to civil unions, was evenly split between pro and con.
This "normalization" train has left the station.
But the most desperate battles are often fought at the end of the war. That's when the craziest tactics will be tried. The religious right would burn the village in order to save it, by giving away any guarantee they have to any rights in exchange for a victory in a losing battle against marriage equality.
If Ken Starr really wants to argue on behalf of the tyranny of the majority, he might keep in mind that public opinion is moving away from him. It won't be long before he's in the minority, subject to the whims of the mob rule he advocated.
Unfortunately, when that happens, I don't expect him or any of his allies to shut up and "swallow the bitter pill and act with diligence," as the weak and rightless should.
Maybe we can all take a vote and make them shut up.