Tyranny

 

The Declaration of Independence

In every stage of these Oppressions
 We have Petitioned for Redress in the most humble terms:
Our repeated Petitions have been answered only by repeated injury.
A Prince whose character is thus marked by every act which may define a Tyrant,
is unfit to be the ruler of a free people.

The US declared freedom from every Tyrant, including the tyranny of the minority.

The Founding Fathers took great pains in drafting the Constitution to prevent a tyranny of the majority.  There is a Bill of Rights.  There are check and balances.  There are three branches of government.  Laws must be passed by both branches of Congress.  An act of Congress can be vetoed by the President.  That veto can only be overridden by  2/3 of the members of each house of Congress. Treaties require a 2/3 vote by the Senate.  Amendments to the Constitution require a 2/3 vote in Congress and ratification by 3/4 of the states. A 2/3 vote of the Senate is required to find guilt at an impeachment trial.  While not in the Constitution, US Senate rules require that debate on laws or nominations continue unless 60% of the members vote to end that debate.

Yet current Supreme Court decisions are rendered by a simple majority.  It was not always the case.  Until the 1940s, the Supreme Court decided its cases by consensus, that is a unanimous  decision.  Criminal cases still require a unanimous 12 member jury decision, but hung juries can be declared a mistrial.

The protections against tyranny of the majority were arrived at empirically.  When the Founding Father’s drafted the constitution, they did not envision the formation of political parties.  It was not until French sociologist Maurice Duverger articulated it in the 1960s ,that it was shown that single member district with plurality winner-take-all systems, such as those in the United States, would probably lead to two party systems.  Decisions in a two party system can not be a super majority unless one of those two parties is also a super majority.

The size of a super majority has included  provisions for 55%, 60%, 66.7%, 75%, 100% but these are all empirical.  If a unanimous decision is required, only one individual can block any action. A simple majority offers no protections against the tyranny of that majority.  The size of an efficient super majority has been proposed by Caplin and Nalebuff to be 64%.   This is close enough to the 2/3 requirement in the Constitution that changes hardly seem warranted.  However if this is an efficient supermajority, there appear to be two instances where supermajority actions are not followed.

In a Supreme Court with nine justices, 64% would require that super majority decisions be 5.76 to 3.24.  Given that fractional votes by justices are not practical, the size of that court should be 12 justices where an 8 to 4 decision would be a 2/3 supermajority and an integral number of justices. If packing the courts is anathema, then a 6 member court with 66.7% vote for decisions, would serve the same function.

In the Senate, with a two-party system of 100 Senators, any action can be blocked if retaliation is taken on any votes against the party line,. With retaliation,  the system devolves into a two-party game which allows a tyranny of the minority unless it is also  a super minority.  If all votes requiring supermajority actions were by secret ballot, then retaliation might not be possible and actions might be advanced even if one party was not also a super majority.

Supermajorities offer protections from tyrannies of the majority.  However it can not be a two party system or require a unanimous decision because then one party or voter can block any actions.  Simple changes (three additional judges on the Supreme Court and a return to the process before 1940, and secret ballots for supermajority votes in the Senate), might prevent the rights of minorities from being trampled on by the majority while still allowing necessary actions to continue.