—Decision of the Circuit Court of Pulaski County, Arkansas Sixth Division in Howard v. Child Welfare Agency Review Board (2004). When Is a Majority Not a Majority?
Varying representation in the U.S. Senate:
Combined population: 67.8 million
total U.S. senators: 6
Combined population: 4.3 million
total U.S. senators: 6
When 51 senators vote to pass a bill, it is quite possible they represent a minority of Americans, depending on what states they are from.
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Radicals on the right like to appeal to majority rule as a sort of trump card. When gay, lesbian, bisexual and transgender rights are vindicated in the courts, right wingers look for other ways to defeat equal rights, including by popular referendum or legislation. They argue that when courts vindicate minority rights, they are engaged in antidemocratic action. They insist that fundamental questions like marriage equality should be decided by simple majority vote.
There are two obvious flaws with the "majority rule" attack on our independent judiciary. First, it is not, in fact, a principled argument. There are plenty of important decisions in our country that are not decided by majorities, but are not challenged by those who attack "activist" judges. For example, the Family Research Council chooses not to raise Cain about the fact that Utah, Wyoming and Idaho have as many senators as California, New York and Illinois, despite the fact that the former group of states have less than one-tenth as many residents as the latter group.
DID YOU KNOW?
In 1968, the year after the United States Supreme Court struck down criminal laws against interracial marriage, 72 percent of Americans still opposed interracial marriage. Even in 2000, when Alabama finally removed the unconstitutional interracial marriage ban from its state constitution, 40 percent of Alabama voters — more than 550,000 people — voted to retain the ban.
Second, and relatedly, the "majority rule" argument ignores the fact that our system was not designed for majorities to decide every question. We have a constitutional democracy which provides fundamental rights through a founding constitutional document and amendments. Those rights, which were designed to be protected and vindicated by courts, may not be erased or modified by simple majority vote. We have a carefully designed constitutional amendment process that requires supermajorities to make changes to our founding document. Proposed amendments to the Constitution must be supported by two-thirds of the members in each house of Congress and then ratified by majorities in three-fourths of state legislatures or state ratifying conventions (i.e., in 38 of the 50 states).
— Lawrence v. Texas, the U.S. Supreme Court decision that said the majority may not impose its religious and moral views on the rest of society.
—“An Independent Judiciary: Report of the ABA Commission on Separation of Powers and Judicial Independence,” © 1997, American Bar Association.