excerpted from: Gabriel J. Chin and Randy Wagner, The Tyranny of the Minority: Jim Crow and the Counter-majoritarian difficulty,, 43 Harvard Civil Rights-Civil Liberties Law Review 65 (Winter, 2008)(353 Footnotes) (Full Article)
Modern constitutional law and scholarship rests on a conceptual mistake: thinking of African Americans as a minority. Scholars and courts routinely characterize African Americans as minorities who, in various ways in the past or present, were discriminated against by a hostile or indifferent majority. Typical is Justice Harlan's reassurance, in his dissent in Plessy v. Ferguson, that “[s]ixty millions of whites are in no danger from the presence here of eight millions of blacks.” Similarly, the famous Footnote 4 of Carolene Products explained that laws affecting “discrete and insular minorities” excluded from “political processes” might be subject to heightened judicial review. But the premise recognized the difficulty: ordinarily, minorities must expect to lose in the political process.
The minority model explains, even justifies, much of African American disadvantage. Even with perfect judicial review and even if all laws had a race-neutral motivation, under the minority model African Americans remain minorities in a majoritarian system. Thus, they must anticipate failure when their interests are at odds with those of the majority. Protection of minorities as to a limited set of fundamental issues or from policies infected with provable bias does not imply that a group outnumbered eight to one will often — or ever — get its way when its preferences diverge from those of the majority. Under the minority model, contemporary African American disadvantage is unfortunate, but not necessarily traceable to a legal violation.
The minority model is factually wrong in a way that has distorted the legal system's understanding of the oppression of African Americans. In the darkest days of Jim Crow, African Americans were a minority nationally, but were a majority in the states where their population was most highly concentrated. In 1880, for example, African Americans were an absolute majority in Louisiana, Mississippi, and South Carolina; and were over 40% of the population in Alabama, Florida, Georgia, and Virginia, making African Americans the largest single voting bloc in those states. Allied with Republican whites, African Americans outnumbered conservatives and earned majority control of the electoral system in many states. Through violence, fraud, and what under currrent understandings of the Fourteenth and Fifteenth Amendments were clearly unconstitutional acts engaged in, not by a white majority, but by a conservative minority, the African American majority was not merely subject to discrimination and segregation, but, far more importantly, was denied its rightful democratic authority.
Recognizing that African Americans had majority political power creates an imperative to rethink segregation and the present condition of African Americans. Jim Crow laws burdened African Americans in ways other than discrimination. The major unrecognized harm that African Americans suffered was the loss of their legitimate domination of the electoral system. African Americans were, indeed, entitled to equal access to whatever schools happened to be available. They were also entitled to decide that educational spending would be 5x instead of x. African Americans were entitled to nondiscriminatory law enforcement and also to the power to decide that, for example, breaking an agricultural contract—a crime invented to keep the freed slaves under the control of the white minority—would not be a crime at all. They could even determine that civil rights violations or fraud against agricultural employees would be punished severely. Under the electoral system contemplated by the Constitution, the African American majority would have shaped educational policy, economic and criminal justice policy, and other aspects of state government in the South.
Recognizing the African American political majority re-opens the question of the consequences of Jim Crow. Under the minority model, disenfranchisement is part of a laundry list of indignities but remains largely symbolic. Disenfranchising Socialists or Libertarians in 2008 would be wrong, but it would not deprive them of many public offices, or significantly change the political system, because they are small minorities. As a majority, however, African Americans were entitled to reshape the states to suit their views of the public good. While in control in the 1860s and 1870s, they implemented policies designed to lead to economic and social advancement: education and protection against discrimination from private actors. If the Constitution had been obeyed and those policies left in place and strengthened, the social advancement that occurred in the twentieth century might well have occurred in the nineteenth, and African Americans might now enjoy the same economic and social status enjoyed by other ethnic groups taking their place in the American community.
Recognition of African American majority status also sheds new light on the Court, its civil rights jurisprudence, and especially the so-called “counter-majoritarian difficulty.” The task of constitutional law, John Hart Ely wrote in Democracy and Distrust, “has been and remains that of devising a way or ways of protecting minorities from majority tyranny that is not a flagrant contradiction of the principle of majority rule.” The counter-majoritarian difficulty posits that laws are presumptively legitimate as the fruit of the democratic process and majority will. Judicial interference therefore requires explanation and justification. The modern counter-majoritarian difficulty begins with Brown, “arguably the first explicit, self-conscious departure from the traditional view that the Court may override democratic decisions only on the basis of the Constitution's text, history and interpretive tradition—not on considerations of modern social policy.”
The minority model implies that cases like Plessy v. Ferguson were good-faith if wrongheaded efforts to balance majority rule and minority rights. But if African Americans were a majority, then there was no tension between majority rule and constitutional rights; both pointed towards invalidation of the statute. A close reading shows that in Plessy and other important decisions, the Court knew it was reviewing laws passed by a minority to oppress the majority. Therefore, the fact that African Americans were a majority shows that the modern counter-majoritarian difficulty was preceded by a majoritarian difficulty. What should courts do when reviewing laws not based on the will of the majority but designed to oppress the majority on behalf of a minority?
Recognizing an African American majority means that in Brown and other segregation cases, the Court reviewed policies created by a minority to oppress the majority. The criminal justice cases also often involved African Americans oppressed in the South. When the Court failed to protect African American interests, it did not bow to legitimate majorities; instead, it approved oppression of majorities by a minority. When the Court later invalidated some of these laws, it did not act against the will of the majority; rather, it invalidated laws and policies that almost certainly could not have existed as they did had majoritarian politics operated.
Part I outlines the Minority Model of African American disadvantage. It demonstrates that African Americans are characterized as a minority, and therefore, that under majority rule, African Americans were only entitled to protection with respect to a limited set of interests. Accordingly, their current situation is a combination of a bad starting point, private discrimination, and public policy legitimately oriented to the majority, as well as discrimination cognizable by law. But under the Minority Model, there is no reason to think that all disadvantage results from legal violation.
Part II explains why understanding African Americans as a minority in the Jim Crow era is mistaken. It also explains how African American political control was ended. There was a two stage process: force and fraud cemented in place by constitutional changes designed to ensure permanent African American disenfranchisement.
Part III outlines the practical effects of disenfranchising a controlling majority in a large part of the United States.
Part IV explores the counter-majoritarian difficulty in light of the African American majority.