“…freedom of opinion does not exist in America (p. 307)”.
This is not the opening line of Tocqueville’s chapter entitled, ‘Unlimited Power of the Majority in the United States, and its Consequences,’ but it is its most provocative. Even in his day he recognized that he would not find many who would agree with him, at least not publicly. Today, I think we would find it even harder to think of America this way.
It is hard to know precisely what opinions he is thinking of that are limited, but he gives us a hint in a couple of places. First, he makes a distinction between matters that are still debated in society and matters which have been settled. So he is not suggesting that everyone believes the same thing on any given issues, such as gun control in our own day, which is still being vigorously debated in the U.S. But he is referring to issues which are no longer up for decision, perhaps things such as whether America should have a standing army. Again, I am referring to our own day here, for that was once a topic of hot debate.
The other example he mentions in a couple of places is religion. He notes that in Europe, you can find all sorts of views on religion, but in America, the majority is of the opinion that religion is good and that atheism is not an option. So a Sam Harris, for instance, would not have found success back in Tocqueville’s day, but would have been an outcast if he published.
It is interesting to consider Canada, particularly in comparison to the U.S. In Canada, I would say it would be pretty risque to write a serious book about moving away from our public health system towards an American-style model of private insurance, particularly pre-Obama Care. While we debate allowing private clinics for knee surgeries, it would be political suicide to suggest getting rid of public insurance altogether.
There are also certain politically correct issues which it is difficult to discuss without finding your political prospects dimmed and losing friends, such as non-mainstream views with respect to aboriginal issues and women’s issues. Stephen Harper had to rule his party with an iron fist in order to prevent his socially conservative members from ruining its chances of electoral success.
We like to think of our societies, especially in the West, as being exemplars of freedom of opinion. It is hard to think that less democratic societies may be more free in this respect than we are. On campuses, we are certainly seeing increased “censorship” of unpopular views. It is hard to go a month without some story about a university not allowing some unpopular speaker to come onto campus, such as anti-abortion proponents.
It is also interesting to consider the experience of Tom Flanagan, the professor who argued that the viewing of child porn should not necessarily be an offense, even if it is a crime to produce the pictures that are being viewed. He was quickly alienated and lost his role as commentator on national television as well as speaking engagements at political party events. Anyone thinking of taking nuanced positions on controversial issues surely got the message: stick to majority opinion or watch your career go out the window, not to mention your social life.
The second provocative statement that Tocqueville makes in this chapter is: “I hold it to be an impious and an execrable maxim that, politically speaking, a people has a right to do whatsoever it pleases (p. 299)”. He follows this up with: “The rights of every people are consequently confined within the limits of what is just (p.299)”.
I totally sympathize with this sentiment. And, yet, it is problematic. For who decides what is just or not? I often feel that governments are overstepping their boundaries, but isn’t that merely my personal and minority opinion? Perhaps it is more about the idea of there being limits. That is, just because a majority legislates something, doesn’t make it just. This goes to Tocqueville’s remarks about the lack of freedom of opinion in America. It is as if you cannot hold an opposing view in America because if what the legislature does is just, by definition, you must hold an unjust view if you are not in favour of it. By suggesting that the justness of a law does not come from the number of people who support it, it implies that justice remains separate from the law.
However, I think the use of the word “right” implies something more than merely the idea of limits. If the people, through a legislature, do not have a right to pass an unjust law, then an individual does not have an obligation to obey unjust laws. So, then, the question becomes, who gets to decide when a law the majority passes is unjust and, who protects a person’s right to not have to obey that law? Typically, I suppose, that would be the role of a supreme court, working from common law or a bill of rights or something. But if the majority can be wrong in passing an unjust law, can’t the majority be wrong in writing a constitution? Or can’t the prevailing majority opinion in society affect supreme court justices’ interpretations of common law or the constitution? I suppose the answer is, of course, yes, for there is no perfect safeguard against unjust laws, but at least there is a chance that a supreme court or a constitution will provide a check, at times. And the existence of a strong court or constitution may, in itself, help constrain the aspirations of legislators from pushing the limits.
In the end, it is the “maxim” that Tocqueville finds execrable. So he would have us hold it as a maxim that a legislature is limited to passing only what is just. Whether or not we can achieve this in reality is one thing, holding it as an opinion and, thereby, aspiration, is another. Again, he seems to be lamenting the fact that opinion is so narrow in the U.S. that people are blind to the fact that America’s system of government is flawed.
In America, there are no effective limits on what the people can impose. This is disturbing to Tocqueville. And while he doesn’t think they are necessarily abusing this power currently, he worries that they could easily do so in the future. But the alternative is also tricky. For if “what is just” is to be a limit on what the majority can impose, who decides what is just? If not the majority, the who? Surely not the minority. You could argue that it is the people at a different time, but that would have just been the majority at that time setting down what is just, such as when people create a constitution with rights. This is a tricky issue in politics. Who defines what is just? We can easily imagine a scenario in which a majority
I think to a certain extent, this is an issue that Tocqueville feels there is not enough freedom of opinion on in America. He mentions on a few occasions that Americans are particularly sensitive to anything negative being said about their democracy. Tocqueville clearly believes the majority has too much power in America through its legislature, with no effective check from the executive or judicial branches. But I get the sense that Americans do not sympathise with him on this. They think their system is perfect and anyone who criticizes it is ignorant.
In Canada, we have a system that is more in line with Tocqueville’s thinking. Here is his ideal: “If, on the other hand, a legislative power could be so constituted as to represent the majority without necessarily being the slave of it passions; an executive, so as to retain a certain degree of uncontrolled authority; and a judiciary, so as to remain independent of the two other powers; a government would be formed which would still be democratic without incurring any risk of tyrannical abuse (p. 303)”.
“I know no country in which there is so little true independence of mind and freedom of discussion as in America (p. 305)”.
“In democratic States organized on the principles of the American republics, this is more especially the case, where the authority of the majority is so absolute and so irresistible that a man must give up his rights as a citizen, and almost abjure his quality as a human being, if he intends to stray from the track which it lays down (p.309)”.
Interesting stuff. Someone has described this as the “tyranny of the majority”.
I happen to be a greying white male in my late 50’s.
What if a “majority” of society decided that once I hit 60, I was no longer “useful” to society. And then imposed that will on society in some kind of properly-constituted “democratic” process? To the end that old white guys – once they hit 60 – would be done away with because they constituted a burden on the health and social infrastructure of the country….
Would that be “right”? Or, to use your term, would that be “just”? You’re getting into the area of public morality here, Seamus. Who makes those decisions, and on what basis? What fundamental “norm” do we use to determine what is “normative”?
In the West, our historic basis – while some may deny of pooh-pooh it – has been the “Judeo-Christian” tradition which essentially posits that human life has intrinsic worth because of the doctrine of “Imago Dei”; the notion that humans are not “just another (perhaps slightly higher and more intelligent) animal life-form”, but are actually created in the “image of God.”
But absent that kind of “norm”, whatever it’s rational, philosophical, or religious foundation, we really are like a ship at sea with neither sail nor rudder. We don’t know where we’re going, and we have no idea how to get ourselves there.
Thanks for the thoughtful comment, Al. Determining what is just if it’s not the majority today is a tough one. For any historical norm was likely simply the majority view of yesterday, such as the Judeo-Christian norm of justice you mention. As a non-relativist, I like to think we can use reason to discern right from wrong, much as Sam Harris argues in The Moral Landscape, but the majority certainly does not share this view. So we are, as you suggest, rudderless at the moment, with all the messy implications that has for our politics.