On Human Rights and Majority Politics: Felix Frankfurter's Democratic Theory

By Moyn, Samuel | Vanderbilt Journal of Transnational Law, November 2019 | Go to article overview

On Human Rights and Majority Politics: Felix Frankfurter's Democratic Theory


Moyn, Samuel, Vanderbilt Journal of Transnational Law


TABLE OF CONTENTS    I. INTRODUCTION                                       1136  II. FRANKFURTER ON HUMAN RIGHTS AND MAJORITY RULE      1140        A. The Setting                                   1140        B. Majority Versus Minority Rule                 1142        C. Minority Rights or Wrong Minorities?          1146        D. Rights and Democratic Learning                1150        E. Rights Fallibilists Versus Rights Guardians   1153 III. CONTEMPORARY HUMAN RIGHTS POLITICS                 1157  IV. CONCLUSION: FROM PRINCIPLE TO STRATEGY             1162 

I. INTRODUCTION

In September 1937, the U.S. Constitution's 150th anniversary was celebrated. It was a moment when the American people--through their election of the Democratic party to power in the two political branches of government--empowered their president to place the interests of a popular majority above a minority's rights claims. Though the court-packing scheme of Franklin Delano Roosevelt (FDR) that year had failed in achieving its goal of expanding the Supreme Court's membership, the popular majority triumphed indirectly after the court's existing membership deferred to its will. Roosevelt's speech in honor of the Constitution was in fact a defense of majoritarian politics retroactively, after what he considered to be an illegitimate minority was put in its place. Roosevelt hardly rejected human rights. But he insisted that, if defended and pursued in a new way, they could become safe for majority rule, and vice versa.

Human rights were important, but not more so than majority rule, especially since minority protections had been the way of the world, and majority rule had almost never been achieved in practice. For this reason, Roosevelt's central premise was that majority rule should sometimes override many claimed minority perquisites, as they had regularly safeguarded an indefensible ascendancy of elites boasting oligarchic power or plutocratic wealth. In many respects, the history of human rights is not the now-familiar protection of the marginal, vulnerable, or weak, but the shielding of elite power from popular incursion. As a result, it was not so much a matter of withdrawing protection from the needy, as much as putting indefensible minority power in its place for the sake of a majority rule rarely achieved in national life. "The present government of the United States has never taken away and never will take away any liberty from any minority," FDR explained of his pressure tactics and their outcome, "unless it be a minority which so abuses its liberty as to do positive and definite harm to its neighbors constituting the majority." (1) He added: "the government of the United States refuses to forget that the Bill of Rights was put into the Constitution not only to protect minorities against intolerance of majorities, but to protect majorities against the enthronement of minorities." (2)

Understandably, friends of rights past and present rank the tyranny of the majority first among their fears. Though hardly friends of rights, Plato and all the heirs of classical political thought have long treated the collapse of democracy into despotism as likely if not inevitable. By Roosevelt's lights, however, it is more important to begin with the premise that not only rights, but also politics in general, have usually served minorities. This most enduring fact about politics makes tyranny of the minority a far more endemic difficulty to confront, even in the midst of modern and formally democratic regimes that have taken large strides beyond premodern monarchy and aristocracy explicitly based on locking most people out of power. Most political thought since the Greeks has not merely feared the people but offered affirmations of the need for minority ascendancy if order and justice are to survive. The modern question, therefore, is what it might mean to take not just rights, but also democracy, seriously. (3) What if the greatest risk is not that majorities will trample the rights of minorities, but that minorities will continue to rule over majorities? …

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