Tyranny By Ballot

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The Boston Globe

Tyranny By Ballot

by
Derrick Z. Jackson

Opponents of gay marriage say democracy was stolen by the Massachusetts Legislature. Former governor and Republican presidential candidate Mitt Romney said, "Unfortunately, our elected representatives decided that the voice of the people did not need to be heard."

To the contrary, the Legislature, by voting to keep a gay marriage ban off the 2008 statewide ballot, acted in the best tradition of James Madison.

Madison, writing 220 years ago in the Federalist Papers No. 10, said that the regular vote is sufficient "relief" when a majority is needed to defeat the "sinister views" of a divisive minority. But Madison clearly noted that many measures "are too often decided not according to rules of justice and the rights of the minor party, but by the superior force of an interested and over bearing majority," where the regular vote "enables it to sacrifice to its ruling passion or interest both the public good and the rights of other citizens."

Horrible examples abound of where we might be today in this country if voters were able to sacrifice the rights of other citizens with no checks on their passions.

Just this week, 43 years late, a former Ku Klux Klansman was found guilty of kidnapping and killing two 19-year-old black men. Capitol Hill is still debating whether to include sexual orientation into federal hate crimes laws, a ludicrous debate given that one out of every six hate crimes in FBI statistics is reported on the basis of sexual orientation. There are still legal challenges out there to women's sports equality under Title IX. This week the Council on American-Islamic Relations said that civil rights complaints by Muslims shot up 25 percent last year.

No one can credibly argue that racial integration, women's voting and athletic rights, access for the physically disabled -- to name a few areas -- would be where they are today without the minority finding relief in court or legislative decisions that bypassed a popular vote.

To retrospective wit, Federalist No. 51, written by either Madison or Alexander Hamilton in 1788, said, "It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. . . . In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may truly be said to reign in a stature of nature where the weaker individual is not secured against the violence of the stronger."

Alexis de Tocqueville quoted this nearly a half-century later in "Democracy in America" as a warning of current and future pitfalls.

John Stuart Mill, in his 1859 essay "On Liberty," added:

"When society is itself the tyrant -- society collectively, over the separate individuals who compose it -- its means of tyrannizing are not restricted to the acts which it may do by the hands of its political functionaries. Society can and does execute its own mandates: and if it issues wrong mandates instead of right, or any mandates at all in things with which it ought not to meddle, it practices a social tyranny more formidable than many kinds of political oppression."

Mill said social tyranny was more formidable because even though it may not have formal "extreme penalties," it leaves "fewer means of escape, penetrating much more deeply into the details of life, enslaving the soul itself."

When the Massachusetts Legislature voted this week, it acted upon the knowledge that for too long, gay and lesbian people -- like people of color, women, and the physically challenged before them -- were penalized by the details of life, enslaved mentally and physically to the will of the majority. Gay marriage has been banned in nearly every state that put it up for a statewide vote, with not one iota of evidence how gay marriage so much as meddles with straight marriage, let alone injures it.

Opponents of gay marriage in Massachusetts say the voters were robbed. The Legislature stepped in to end the theft of dignity. Madison or Hamilton wrote, "If men were angels, no government would be necessary."

This was a moment the Legislature had to be the guardian angel. It acted in the spirit of Federalist No. 51: "A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions."

Derrick Z. Jackson's e-mail address is jackson@globe.com.

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