The concept that constitutions are antimajoritarian refers to the idea that constitutions, particularly those in democratic nations, are designed to limit the power of the majority, ensuring that certain fundamental rights and freedoms cannot be easily overridden by the will of the majority. This is a key characteristic of constitutional law, and it serves to protect individual rights, minority groups, and fundamental democratic principles.
Why Constitutions are Antimajoritarian:
- Protection of Fundamental Rights:
- Constitutions often enshrine individual rights and civil liberties that cannot be easily changed or taken away by the majority. For example, the U.S. Constitution’s Bill of Rights guarantees freedom of speech, religion, and assembly, among other things. These rights are meant to safeguard individuals from being oppressed by a majority, whether through laws or policies.
- In other words, constitutions place limits on governmental power to prevent the “tyranny of the majority,” where a majority might use its power to infringe upon the rights of minorities or individuals.
- Judicial Review:
- Many democratic systems, like the U.S., have a system of judicial review, where courts, particularly constitutional or supreme courts, have the power to review laws and government actions to ensure they comply with the constitution. This gives courts the authority to strike down laws that violate constitutional rights, even if they have been passed by a democratically elected majority.
- For example, in the U.S., the Supreme Court can declare a law unconstitutional, protecting individual rights from the will of the majority, as seen in landmark cases like Brown v. Board of Education (1954) which desegregated public schools, or Obergefell v. Hodges (2015), which legalized same-sex marriage nationwide.
- Supermajority Requirements:
- Constitutions often include supermajority requirements for certain actions, such as amendments or changes to the constitution itself. This ensures that changes to fundamental law are not made lightly or without broad consensus. The U.S. Constitution, for example, requires a two-thirds majority in both houses of Congress and ratification by three-fourths of state legislatures to amend the Constitution.
- This feature prevents any fleeting or temporary majority from making drastic changes that could infringe upon the rights of minorities or destabilize the core democratic principles of the nation.
- Safeguards Against Popular Passions:
- The framers of many constitutions, including the U.S. Constitution, were concerned that direct democracy could lead to rash or harmful decisions based on the emotions or passions of the moment. By embedding protections for rights and creating checks and balances within the system of government, constitutions protect against hasty actions by the majority that could undermine the stability or fairness of the political system.
- This idea can be seen in the Electoral College in the U.S., which acts as a buffer between the direct vote of the people and the selection of the President.
- Minority Rights and Rule of Law:
- A constitution also protects the rights of minority groups, ensuring that their interests are considered and safeguarded against majority oppression. This can include protections based on race, religion, ethnicity, sexual orientation, and other characteristics.
- For example, constitutional protections prevent the majority from passing laws that discriminate against minority groups (e.g., racial segregation laws, anti-LGBTQ laws, etc.).
Examples in Practice:
- U.S. Constitution: The U.S. Constitution is often cited as an example of an antimajoritarian document because it not only enumerates the rights of individuals (such as in the Bill of Rights) but also sets up mechanisms (like the Supreme Court) to review laws passed by the majority to ensure they don’t infringe on those rights. Even if a majority of voters support a law, it could be struck down if found unconstitutional.
- Germany’s Basic Law (Grundgesetz): In post-World War II Germany, the Grundgesetz guarantees fundamental rights and freedoms that cannot be easily altered by the majority. For example, it explicitly protects human dignity and fundamental rights, and amendments to the constitution require a supermajority.
- European Union: EU law is another example where constitutionalism operates antimajoritarian principles. The European Court of Justice (ECJ) can overrule national laws if they violate EU laws or fundamental rights guaranteed by the EU’s governing documents, like the Charter of Fundamental Rights.
Criticism of Antimajoritarianism:
While the idea of constitutions being antimajoritarian is widely accepted in liberal democracies, it has also been criticized. Critics argue that by empowering unelected judges or other bodies to override the will of the people, constitutions may undermine democratic legitimacy. They argue that the people, through their elected representatives, should have the power to decide the laws of the land without interference from courts or other unelected entities.
Moreover, some argue that judicial review can sometimes be used to protect the status quo or to preserve privileges for the elite, rather than promoting the interests of the majority or marginalized groups.
Conclusion:
The idea that constitutions are antimajoritarian is essential to understanding how democratic systems balance the will of the majority with the protection of individual rights and freedoms. By setting limits on government power, especially through mechanisms like judicial review and the protection of fundamental rights, constitutions ensure that the majority cannot easily oppress minority groups or infringe upon basic liberties. This principle is fundamental to preserving justice, fairness, and stability in democratic societies.