November 14, 1999

     How much power should majorities have in a democracy? The
     question has come up in Orange County and California in the wake
     of school elections earlier this month. In Orange County, two bond
     measures passed, but one bond failed along with the Irvine parcel
     tax. The failed measures both got more than 50 percent of the vote,
     but fell short of the two-thirds majority for local bond issues
     required by the California Constitution since 1879.

     And next March, citizens will vote on Proposition 26, which would
     reduce that two-thirds requirement to a majority for school bonds
     (but not other local measures, such as parks, which will still need a
     two-thirds vote).

     On the defeat of the recent bonds, a California political columnist
     wrote that "the electoral majority was thwarted by a tyrannical
     minority.

     "Somehow, that just doesn't seem American — minority rule rather
     than majority rule." Several letter writers have expressed similar
     opinions.

     Actually, the real issue is setting up roadblocks to any tyranny,
     whether minority or majority. The American founders specifically
     guarded against essential rights being erased by majority vote. The
     president is elected by the electoral college, not a direct vote,
     requiring him to build a consensus -- a coalition of minorities --
     across the nation. Senate representation is based on the number of
     states, not population; that means in Senate elections, a Wyoming
     voter has 67 times as much power as a California voter. U.S.
     Supreme Court justices aren't even elected, but appointed for life.

     We also impose age and residency requirements for candidates,
     limit the terms of many offices and require the president to be a
     natural-born citizen.

     The Declaration of Independence, which began our country, boldly
     proclaimed that people "are endowed by their Creator with certain
     unalienable rights, that among these are life, liberty, and the pursuit
     of happiness." These rights cannot be revoked, not by majority
     vote — not even by a 99.99 percent vote. The Bill of Rights
     codified many of these "unalienable rights," such as freedom of
     speech, freedom of religion, freedom of assembly and the right to
     keep and bear arms.

     As First Amendment attorney Paul J. Cambria wrote, "Free speech
     ... isn't majority rule. It isn't six foxes and a sheep deciding what to
     have for dinner ... . Minority interests are to be protected."

     Can such rules be applied to taxation as well? Taxation is the taking
     of someone's property or income. The Fourteenth Amendment,
     echoing the Declaration (and John Locke), guarantees the right to
     "life, liberty, and property."

     A school bond automatically means local property owners will be
     taxed for the duration of the bond, usually 25-30 years. It even
     taxes people who will move into the district in the future but who
     can't vote now. If people can't or won't pay, their property can be
     seized by the government. If the owners resist, they can be forcibly
     evicted.

     This is not something that ought to be done lightly. When the
     California Constitution was revised 120 years ago, it wisely was
     decided that a mere majority should not be sufficient to raise local
     bonds. Instead, a two-thirds majority would be needed, forcing
     those favoring the bonds to make a compelling case to voters.

     There are other arguments for keeping the two-thirds requirement.
     As happened this month, bond elections often are called
     independently of other elections, guaranteeing a low voter turnout.
     In the Nov. 9 election for the Huntington Beach Union High School
     district, just 18.6 percent of registered voters turned out. The 61.3
     percent majority fell short of the 67 percent needed to pass. But
     there's another way to look at it. The Yea votes were just 11
     percent of registered voters in that district. That's hardly a
     "majority."

     The two-thirds majority requirement also makes it harder for
     well-organized special interest groups, such as teachers' unions, to
     raise the taxes of individual, unorganized taxpayers.

     Lew Rockwell, president of the free-market oriented Mises
     Institute, said that a too-strict adherence to majority rule "implies
     the total politicization of society." He said that, for seizing people's
     property through taxation, the ideal would be to require 100
     percent approval by all those paying it, which would end the
     coercive element. "The closer you can get to that, the more just it is
     so you don't have to fund something you're not interested in," he
     said. Of Prop. 26, he warned, "Those who want to increase
     government naturally want to make it easier."

     Given these limits, what role does majoritarian democracy play? It
     determines the things that are not "unalienable rights," such as the
     shape of government and those who hold offices in it.

     Democracy allows us to establish and maintain a government that
     protects our rights, and to alter or remove those elements that
     aren't working properly. Like many good things, democracy can be
     abused. Which is why it's necessary for democracy itself to
     establish limits to state power, as exists with the two-thirds rule, the
     Proposition 13 limits on taxation, the division of powers, the
     appointment of judges, term limits and so on.

     American Democracy consists not just of a simple up-down vote
     on any particular issue, but a system of checks and balances that
     protects basic rights in the larger context of self-rule.

     So the next time someone invokes "majority rules!" remind them
     "not always!" for reasons that are fundamental to our freedom and
     its preservation.