PRESIDENT Clinton's nomination last spring of Lani Guinier to
head the civil rights division in the United States Justice
Department ignited a firestorm of controversy. The headline of an
opposing article in the Wall Street Journal dubbed Guinier a
"quota queen." Critics branded the law-school professor and civil
rights litigator a "radical" whose proposed remedies for
violations of the federal Voting Rights Act are "antidemocratic."
Bowing to political pressure, Clinton withdrew the nomination
even before Guinier's Senate confirmation hearings began.
The attacks on Guinier focused on several lengthy law-review
articles she wrote about the voting rights of blacks and other
minorities. But few people outside of legal-academic circles have
actually read the articles.
They are reprinted in "The Tyranny of the Majority: Fundamental
Fairness in Representative Democracy," together with two other
essays by the author and her remarks upon exiting the confirmation
battle. Readers can decide for themselves if Guinier's analysis and
opinions were misrepresented, as she contends. More important, the
book may substitute for Guinier's aborted confirmation hearings in
occasioning a public debate on critical national issues.
This is not a book to curl up with. It is a demanding work of
political philosophy and legal analysis written with the absence of
flair that has become de rigueur for social-sciences scholarship.
But readers who make the effort to track Guinier's complex
arguments - whether or not they accept her conclusions - will be
rewarded with new ways of looking at one of America's most vexing
It's interesting to note that nowhere in these writings does
Guinier, this so-called quota queen, even discuss quotas - if that
term means political or economic benefits reserved for blacks or
other minority-group members at the expense of non-preferred
groups. The remedies Guinier advocates for diluted minority voting
rights do not include laws that guarantee election outcomes for
disadvantaged groups, as some critics claim.
Guinier's analysis begins with the recognition that under a
majority-rule, winner-take-all voting system, 51 percent of an
electorate can exercise 100 percent of the power. This is fine when
the majority is subject to change, as interests and voting
alliances shift in the manner contemplated by James Madison. But
majority rule is problematic when there is a permanent majority and
a permanent minority. This is the condition Guinier perceives in
many jurisdictions, especially at the county and municipal level,
owing to racial polarization in voting.
She writes: "In a fair system, a permanent majority should not
exercise all the power and a permanent minority should not always
lose." The "tyranny" of a majority that can govern without any
sensitivity to or accommodation of minority interests is still more
unacceptable, Guinier says, when majority power is used to oppress
minorities. That state of affairs is her reading of the black
experience in much of America, even during the years since black
citizens gained more-or-less equal access to the ballot box. …