The Tyranny of the Minority

My former lawyer Dan Markel represented me and other prawfs in  an amicus brief to the Ninth Circuit.    After giving me tens of thousands of dollars in free legal services,  his invitation to guest blog is almost too generous, so Dan, thanks.   I'm blogging here about a paper that I co-authored with a former student, Randy Wagner, called The Tyranny of the Minority: Jim Crow and the Counter-Majoritarian Difficulty.  The piece proposes that it is wrong to think of the problem of African Americans as flowing from the fact that they were a minority, discriminated against by a white majority.  When Jim Crow happened, blacks were indeed a  minority nationally, but they were not dispersed randomly throughout the country.  80% lived in the former confederacy; in those states--and remember, all elections take place at the state level or below--they were an absolute majority in three states and had more than 40% of the population in four others.  So, the article proposes, the cause of their problems was not the tyranny of the majority, but the tyranny of the minority.   This remains amazing to me, but the minoritarian character of some Southern governments was frankly acknowledged at the time.  For example, in Ratliff v. Beale, 20 So. 865 (Miss. 1896), a unanimous Mississippi Supreme Court explained the origins of the constitutional system which is in effect in Mississippi today: Reconstruction was followed by a "semimilitary, semicivil uprising, under which the white race, inferior in number, but superior in spirit, in governmental instinct, and in intelligence, was restored to power.  The anomaly was then presented of a government whose distinctive characteristic was that it rested upon the will of the majority, being controlled and administered by a minority of those entitled under its organic law to exercise the electoral franchise." 

My personal belief is that all, or almost all, of present day African American disadvantage is traceable to imposition of conservative minority rule in this era.   Here are  the arguments, many or all, admittedly, contestable.

First, in the absence of violent or unconstitutional disenfranchisement African Americans would have been able to be part of majority coalitions in several--5 to 8--Southern states, that is, a 40% or greater population would often have translated into effective control.   This is based on the fact that even after elimination of blacks as a factor in Southern politics, a largely white electorate still gave Republicans 20-40% of the vote in many Presidential elections; if blacks were added back in to those results, the black-supported candidates win.

Second, black-backed governments would have implemented policies that worked to their benefit.  During Reconstruction, when blacks voted in large numbers, states like Louisiana, Mississippi and South Carolina passed strong civil rights laws and created systems of public education.  These kinds of measures would have allowed them to follow in the path of immigrants of the era, who had similar disadvantages, including a social belief that they were racially inferior, but without the legal lock-in.

Third, the intensity of Jim Crow in the South, and its expansion to the federal government and nationwide, was a product in part of the suspension of democracy in the South.  Just as the 3/5ths compromise gave additional electoral power to the slave interests, under Jim Crow, conservative southerners had greater political influence because blacks were counted in apportioning Congress and electoral votes, but did not vote.   If blacks had been  an insignificant minority,  it would have been much less important that they  be controlled; if blacks had been an insignificant minority, then conservative southern influence would have been much reduced.   The expansion of Jim Crow to the federal government, with the educative effect that had on the rest of the country, was necessitated by, and facilitated by, the disenfranchisement of a black population so large that it would have controlled a number of southern states.

Randy and I are eager to hear why we are wrong.