Today the Department of Defense is slated to release a report about “Don’t Ask Don’t Tell.” Visiting scholar Geoff Stone explains that, while a majority of Americans support DADT’s repeal, the policy still stands.
The standard theme of democracy is that “the majority rules.” In our democracy, this is usually what happens. But not always. Consider the issue of “don’t ask, don’t tell.” According to a recent CNN poll, 72 percent of all Americans favored repealing “don’t ask, don’t tell,” and only 23 percent favored the continuation of the policy.
Moreover, a similar Gallup poll reports that every major population group favors the repeal of “don’t ask, don’t tell.” Repeal is supported not only by liberals, Democrats, and young people, but also by Republicans (58 percent), conservatives (58 percent), people over age 65 (60 percent), and even the usually most conservative group of all — weekly churchgoers (60 percent). It is difficult, especially in these polarized times, to find so broad a consensus for any public policy.
Nonetheless, the Republicans in the Senate, who claim now to “listen to the voice of the people,” are likely overwhelmingly, perhaps unanimously, to oppose the repeal of “don’t ask, don’t tell” and to try fervently to keep the issue from even coming to a vote. What’s going on here? Are the Republicans like a bunch of lemmings ready to throw themselves over a cliff? What do they know that we don’t know?
They know two things, neither of which has anything to do with good government, sound public policy, or simple justice. They know, first, that a majority of those who favor the repeal of “don’t ask, don’t tell” are inclined to vote Democratic (82 percent of Democrats support repeal). They apparently feel no responsibility to take their views into account. O.K., politics is politics. But, as I’ve noted, 58 percent of Republicans and 58 percent of conservatives also favor repeal of “don’t ask, don’t tell.” Don’t the Senate Republicans care about them? The answer, apparently, is “no.” They care only about the 23 percent who want to keep “don’t ask, don’t tell” in place.
Why would they do this if a majority of even their own supporters opposes “don’t ask, don’t tell”? The answer is simple, and this is the second thing they know: the supporters of “don’t ask, don’t tell” are much more vehement about the righteousness of their position than are the opponents. Thus, the 23 percent will likely work much more fervently to unseat them if they vote to end “don’t ask, don’t tell” than the 72 percent will work to unseat them if they vote to keep “don’t ask, don’t tell.” As a result, the anger of the 23 percent matters much more to the political fortunes of the Republican senators than the unhappiness of the 72 percent, even though the latter includes a substantial majority of Republicans.
To make matters worse, although there are only 41 Republican senators, as compared to 59 Democrats (and Independents), these 41 senators, representing the views of only 23 percent of the American people, can use the filibuster to thwart the will of 59 senators who represent the views of 72 percent of the American people. (To compound the problem still further, the 41 Republican senators were elected by only 37 percent of the American people.)
In this way, a determined minority can manipulate and control the American political system. This is not always a bad thing. Sometimes the majority can be wrong-headed, intolerant, or discriminatory, and in such circumstances it may be quite important for the minority to be able to protect itself in this manner. This problem is especially acute when the majority is attempting to deprive the minority of their fundamental liberties.
This is where the courts enter the picture. Ordinarily, we think of the Constitution as designed in no small part to protect minorities from overbearing and intolerant majorities.
The First Amendment, for example, protects political and religious dissenters from persecution by close-minded majorities and the Equal Protection Clause protects racial and other minorities from oppression by bigoted and insensitive majorities. We rely on the courts, which are not accountable to those majorities, to have the independence and backbone to stand up for the rights of the underrepresented, the downtrodden, and the disadvantaged.
In the “don’t ask, don’t tell” debate, a federal court has held the policy unconstitutional, and that judgment is pending on appeal. If 41 Republicans in the Senate, representing the views of only 23 percent of the American people, use the filibuster or other procedural devices to prevent an overwhelming majority of the American people and their representatives from bringing fairness, equality and common sense to our national policies, then it will fall to the courts to act.
As much as we need courts to protect us against the “tyranny of the majority,” it is even more essential for them to protect us against the “tyranny of the minority.”
Geoffrey R. Stone is the Edward H. Levi Distinguished Service Professor of Law at The University of Chicago and a Visiting Scholar at the The National Constitution Center.
Photo credit: The U.S. Army.