Basic Rights Aren’t Up for a Vote

Gene Policinskil Commentary

By Gene Policinski
First Amendment Center vice president/executive director

From the time most of us set foot on a school playground, if not before, we learn that in making group decisions, majority rules: If most of the kids want to play kickball instead of tag or basketball, we play kickball.

Later, we discover that democracy has a similar approach: Get one more vote than an opponent in an election, or create a winning margin in a legislative body, and you “win.”

Seems fair, at least on the surface. And in a practical way, it works to ensure that a majority of people favor the ultimate decision — whether that’s playground diversions or government practices and policies.

But the nation’s founders were concerned with what Thomas Jefferson and others called “the tyranny of the majority” — a potentially perpetual ruling group. Hence the bold statement in the Declaration of Independence that when it comes to our basic freedoms as Americans, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”

Basic individual rights are not up for a vote, not dependent on the whim or will of a majority of fellow citizens. Let’s be clear on that: Each of us has an individual — “unalienable” to use the Founders’ term  for irrevocable — right to worship (or not), to express ourselves in writing or speech, to seek redress from our government and to gather with people of like mind. So states the First Amendment.

And that’s what is so darn frustrating about the sentiments expressed by some in Ponce De Leon, Fla., in an Associated Press story regarding community opinion about a principal reprimanded in federal court for violating the free speech of gay students and their supporters in a local high school. It’s that old playground axiom again, expressed this way in the AP story: “We are a small, rural district in the Bible Belt with strong Christian beliefs and feel like homosexuality is wrong," said Steve Griffin, Holmes County’s school superintendent, who keeps a Bible on his desk and framed Scriptures on his office walls.

A free-speech complaint arose after the principal told a student that her homosexuality was wrong, outed her to her parents and ordered her to stay away from children. Friends of the student donned gay-pride T-shirts and rainbow-colored clothing to protest the principal’s actions. He subsequently questioned many of them about their sexuality and association with gay students. And he banned all signs of support for gay rights. Some students were suspended. Students sued. The principal lost.

Not at issue here is whether or not any person — including the principal — should support or oppose, accept or reject homosexuality on a personal level. And the courts ultimately are the place to determine whether a student protest is protected expression or can be shut down because it disrupts the educational process or violates the rights of others.

What is at issue is the power of government or its agents to claim “majority rules” and thus provide the authority to punish, restrain or exclude at whim the views of even a single individual, let alone those of a group of students or any group of citizens.

In 1791, when the 45 words of the First Amendment were adopted, what are now the two largest Christian religious denominations in the United States were considered fringe or extreme groups in many communities: Baptists and Roman Catholics. Without the amendment’s protections against Colonial-era “majorities” it’s an open question whether those faiths would have flowered to the degree they have.

Alexis de Tocqueville, the great French scholar and early observer of the American democratic experiment, wrote:  “If ever the free institutions of America are destroyed, that event may be attributed to the omnipotence of the majority, which may at some future time urge the minorities to desperation and oblige them to have recourse to physical force. Anarchy will then be the result, but it will have been brought about by despotism.”

In other words, if the majority always prevails over the minority, the democratic system will fail — and, in de Tocqueville’s view, revolution is likely.

The First Amendment is a great instrument for protecting liberty and for relieving the inevitable — and in many ways desirable — stresses that arise a society in which we are free to speak, to write, to worship and believe, and to challenge our government.

Comment? E-mail me