The notion that we should put the locus of control over a woman’s body to a popular vote—that is, put the matter in the hands of the majority and let people who do not know her (or even those who do) determine whether her body is her’s or the state’s to command—is tyranny masquerading as democracy.
This form of tyranny has a name: majoritarianism. Majoritarianism is the political philosophy that holds that a majority of the population, often manifest as an ethnic group, political party, race, or religion, has the right to make decisions that affect everybody regardless of whether that which is affected is intimate and personal.
On this Fourth of July, as we celebrate the establishment in principle of a free society, I want to reflect on the problem of putting the liberties and rights of citizens to a popular vote and whether this notion could ever truly represent the will of the governed.
Majoritarianism is a drastic departure from the organic spirit of America. Whether you think the country should operate as a direct or popular democracy, America was precisely neither inspired nor founded as such (see The Supreme Court Affirms the Tyranny of Majorities). Those who fought a war for independence from the most powerful empire of the day sought and installed a republican form of government.
As a liberal, I am dedicated to the founding principles of the American Republic, as these root in such core Enlightenment ideas and values as humanism, individualism, rationalism, and secularism. However, I am well aware that my commitments are not shared by others. Indeed, I am surrounded by those who reject those values. The conservatives on the one side who vote to force women to have babies are matched on the other side by the progressives who demand citizens, including pregnant women and children, receive an experimental gene therapy.
In Federalist No. 10, James Madison, the principal author of the Constitution and the Bill of Rights, openly worries about the mob, what he calls a “faction,” which he defines as a group “united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.”
Consider that the majorities in several states whose views on abortion, many backed by religious sentiment, are adversed to the right of their fellow citizen to the bodily autonomy necessary for safe and effective family planning. Consider how violating personal liberty—in this case for an entire category of being—damages the permanet and aggregate interests of the community. In the end, do not all citizens benefit from defending the rights of persons over the enforced opinion of the faction? Same holds for mandatory vaccination. How did authoritarian attitudes become so deeply embedded on the right and the left of the American political spectrum?
The short answer (the longer answer you will find in several of the blogs on Freedom and Reason) is that conservatives are obsessed with a rightwing interpretation of Christianity, while progressives command and submit to corporate governance and the administrative state. In its erasure of individual liberty, progressivism represents a statist and technocratic worldview no less undesirable than Christianism.
What readers must understand is that today’s authoritarianism hails from two diametrically opposed standpoints; the situation we find ourselves in is thus simultaneously tyrannical and polarized. This is why it is so important in this moment that we reassert the liberal foundation of the American Republic and the utility of its governmental scheme for the protection of individual liberty and rights.
In his pamphlet, Madison warns his audience that a direct or popular democracy “can admit of no cure for the mischiefs of faction.” So the Framers designed a constitution-based system, a representative republic, wherein officials elected by the citizens would serve the public interest in a system of checks and balances. Moreover, with a bill of rights, the Framers set core freedoms beyond the reach of the state—and the mob.
Among these freedoms are the right to be secure in one’s person—a right to privacy, implicit in the logic of the Fourth and Fifth Amendments—and a right to be free from the preachments of the various religions, a right explicit in the First Amendment, rooted in the principle of freedom of conscience. The Framers were determined to defend the individual from unwarranted and unreasonable government intrusion and from the desires of organized religion.
Where does democracy fit in all of this? In collectively controlling and directing the agency of citizens whose decisions and actions would impinge upon the rights and interests of other citizens. What I would do with my body is my business. What you would do with my body is also my business. Both are protected by the system of rights and effective democratic power. Democratic processes are therefore liberal to the extent that they give the citizen effective control over what others do that may affect him. The same principle applies in the case of the scope of state action. Those personal decisions and private matters that do not harm the rights of others are not properly subject to democratic or state control and the government exists to protect and defend those rights.
The partisan politics of all this—all this noise on legacy and social media—are beside the principle; it’s just as wrong for technocrats to govern through public health policy as it is for conservative majorities to call the state to control a woman’s body. Both sides forget who we are. I am tempted to say, who we are beyond politics, but it is via politics that we must engage and defend the American Creed.
This has been true down through history. A constitutional amendment formally recognizing the right of women to vote is appropriately subject to democratic action since it defends women against the attempt to deprive them of their proper role in determining their fate collectively and individually in a representative republic. As rational adults, women must also enjoy representation.
Crucially, the Nineteen Amendment does not give women the right to vote; it formally recognizes that right. Had it not been for laws depriving women of the vote, no amendment would be necessary—at least no amendment should have been necessary.
Perhaps now, in the wake of the overturning of Roe, we need to consider a constitutional amendment to protect the right of women to control their reproductive capacity. It is a shame that this should be necessary. This should never have been a question in light of the thousands of years of a natural right of individuals to make such decisions for their families. But since it is a question, democratic action may be necessary to explicitly recognize that natural right in the Constitution.
Appearing to understand the importance of liberty, conservatives are fond of reminding all of us that America is a republic. “This is not a democracy,” they tell us in strident terms whenever there is talk of putting some matter dear to them to a vote. Conservatives are right; America is a republic, a liberal democratic order, not a popular one. As explained above, the liberal part has to to do with the individual and his rights, which are to be protected by the state from the mob and the ballot box, not violated by the majority either in mobs in the streets or as voters at polling stations.
Yet conservatives insist that who an adult can marry should be left to the majority. That rights don’t work this way, that rights inhere in the individual, that rights are only circumscribed by the rights of others and then only when they have a legitimate grievance—all this conservatives forget when it comes to the question of homosexuality.
In Obergefell v. Hodges, the US Supreme Court held in a 5–4 decision that the Fourteenth Amendment requires states and the District of Columbia to recognize same-sex marriages across all fifty states. The Fourteenth Amendment states: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Conservatives want this precedent overturned and the question of whether homosexuals have access to the franchise of marriage to be a state-determined matter. Suddenly the question should be subject to democratic action. In other words, Conservatives want majorities to have ability to take away the rights of individuals based on their sexual orientation. Now they want the tyranny of the majority.
The rights that inhere in the logic of Constitution should be explicit enough to not require an amendment guaranteeing same-sex couples their right to marry. Maybe we need an amendment for that, too.
Let me illustrate the way rights work: One has a right, codified in the First Amendment, to speak freely and to freely hear others speaking given time and place restrictions, these to prevent the interference of other free speech activities. By freely we mean talking and listening, writing and reading, without consequence. One cannot be censored, disciplined, or punished for uttering thoughts or for receiving them. Government, the First Amendment tells us, shall make no law abridging the freedom of speech. The manifestation of this right means that the speaker and his audience must be protected from those who would disrupt and derail their communications. When protestors at a speech raise such a ruckus that the speaker cannot be heard by his audience, and then in their defense claim they have a right to do so because of the First Amendment, they are in fact obviating the guaranteed right and properly removed from the site of the speech to a location far enough away where they can no longer interfere with the free communication of ideas.
Imagine our right to freely exchange ideas put to the mob for a popular vote. If you say that it depends on the content of the ideas exchanged, then you have straightaway confessed your authoritarianism. Imagine putting a man’s right to pray to a referendum. You will find authoritarians here, as well, Now imagine the government telling us who we can marry or what we can do with our body. You don’t have to imagine it. Governments have done or are doing this.
In The Supreme Court Affirms the Tyranny of Majorities, I report that James Madison was so concerned about states violating the rights of individuals that he designed a constitutional mechanism to veto any such laws. His mechanism rejected in the give-and-take of deliberative committee work, he wrote the Ninth Amendment, which was accepted by a majority of states. The amendment states “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
The Fourteenth Amendment is the proper mechanism in conjunction with the Ninth Amendment to identify and recognize unenumerated rights and remove barriers to those already recognized. This is substantive due process. Conservatives want to do away with it. For all their talk of republicanism, they want majorities to determine the fate of individuals and minorities.
Obergefell is good law because it prevents states from violating the marriage rights of citizens on the basis of sex in the same way that Virginia v Loving (1967) prevents the states from violating the marriage rights on the basis of race. Equal protection of the law is obvious. Roe (1973), whatever is flaws, was correct in identifying a right to privacy in the Constitution (if there were no such right, then the Fourth and Fifth Amendments are arbitrary) and the role of the government in protecting that right from state majorities. How do women enjoy equal protection of the law when a freedom specific to their sex is denied while in principle is available to men? (See Segregating Liberty by Sex and the Matter of Religious Freedom.)
Again, conservatives are not the only problem here. Earlier today on Facebook, I noted that progressives not standing up for bodily autonomy with respect to vaccine mandates weakened the fight for reproductive freedom. A powerful argument from principle is available on the abortion question with which to win allies for the argument—or at least point out the hypocrisy of their opponents.
But a different message was sent out instead when progressives argued that a person can be compelled to receive experimental gene therapy for the sake of other bodies. The message was clear: it’s not your body, your choice. The government can commandeer your body for the interests of the administrative state and corporate profits.
When one side’s position is as hypocritical as their opponents, and the two sides comprise the majority of the country, and the tyranny of the majority becomes the political desire, the rational citizen finds the way forward difficult, if not impossible. Progressives will tell us that conservatives are the problem. Conservatives will tel us the inverse. The truth is that both sides are the problem. The solution to the problem to rediscover the liberal commitments that founded the American Republic.
During the pandemic, very early on in the crisis, I wrote extensively about how the Supreme Court ruling allowing forcible sterilization was based on an overly broad application of an early Court decision concerning the smallpox vaccine (see The principle that sustains compulsory vaccination is broad enough to cover cutting the fallopian tubes; On the Ethics of Compulsory Vaccination; Social Engineering and the Jacobson Precedent). The Jacobson precedent was thus made pertinent to the question of reproductive freedom by applying it to forced sterilization of citizens and residents in America—a precedent that has never been overturned.
If the government can put a person on a table and cut her fallopian tubes, if the government can force citizens to receive experimental gene therapies in the name of public health, then why can’t the government force a woman to have babies? Does preventing abortion not save lives? In this way of thinking, it’s not your body. It’s the state and the mob’s body—whether the mob comes in the form of Christian conservatives or woke progressives.
Our only path forward is to reassert the foundational ethic of individualism that animated the actions of the Framers all those centuries ago. On this July 4th, let us rededicate our political and moral selves to the American Creed and fight to preserve these United States.
freedom and reason 