Cannot and Should Not

In computer science, if someone says “you should not write code with deadlocks”, we try to make it impossible. For example, by putting C. A. R. Hoare’s “communicating sequential processes” into Go. If we can’t do that, we invent “best practices” and “patterns” to help provide a language-structured guide us around pitfalls.

We have the same problem in politics, but there certainly doesn’t seem to be a language-based approach.

“You should not cut off your king’s head”

The problem became obvious during the French Revolution: a parliament elected by the majority chose to send Louis XVI to the Guillotine.

The British were appalled: the Americans applauded.

Then they both started thinking about just how dangerous the rule of the majority could be. A majority could do anything whatsoever, including passing an act “attainting” a Briton and putting him to death without trial.

American Answers

The Americans were initially all in favor of the tyranny of the majority, and would have been perfectly fine sending Mad King George to the headsman.

When it came time to create a government, though, they realized that had some problems. A government with a majority could do anything it wanted, including adopting the 1772 Somersett ruling that “the condition of slavery does not exist under English law”.

Their original constitution addressed this by having a Senate appointed by the individual colonies. That was tasked with slowing down their national government and keep it from doing things the colonies, now “states”, did not approve of. Initially that included almost everything, including building lighthouses.

That didn’t seem strong enough, and in 1789 at the urging of the anti-federalists ,the U.S. amended their constitution to include a “bill of rights”. This made privileges, now rights, a blocker to federal power, by reserving certain privileges to the states and to the people, and thus limiting what the federal government could do.

That worked for things which could be argued in terms of “rights”, things which a government must grant and guarantee, typically to an individual.

Now the US couldn’t just kill George III. They would have to bring him before a court and prove he had done something that carried a death penalty.

What it didn’t do was deal with all the things a parliament could do that didn’t sound like rights. For example, I might have a right to travel on the streets, but I don’t have a right to use a car: that can still be prohibited. From 1957 to 2018, Saudi Arabia prohibited women from driving, arguing that it is only a privilege, defined as a “benefit, advantage or favor” which a government grants to some people.

Now, pretend for a moment that in 1957, the ruling party in the U.S. rather than Saudi Arabia wanted to pass a law forbidding women to drive. As driving is not a right, and since his party had a majority, Dwight Eisenhower could in theory have signed a law that denied women that privilege.

Of course, if he tried, senators from the other party could “filibuster”.

This was an ancient parliamentary trick: a member of a parliament could hold up passage of a bill by refusing yield the floor. Once a speaker was recognized, they could talk, and keep talking, until the ruling party compromised or the term ended.

Without appealing to rights, they could block passage of a majority’s bill by “talking it to death”, if you and your party were prepared to stop the whole legislature, and exhaust yourselves in talking continuously.

British Approaches

The British government had similar concerns about a majority of British peasants voting to guillotine George III. They used custom and structure to prevent that.

The easiest approach was to prevent non-rich “common people” from being elected to the House of Commons. To that they added a separate House of Lords, and to that they added making their highest court the Law Lords, part of the House of Lords.

Canada, Proceeding Backwards

Canada has a bill of rights, but also suffers from some well-known conflict of rights.

Quebec, for example, fears it is losing the French language. Quebecois have a right to speak French, but when the majority of the continent won’t trade with you unless you to speak English, that right isn’t worth the paper it’s printed on.

To deal with a majority of English-speakers in North America, Quebec therefor uses the “notwithstanding ” clause. That part of the Canadian constitution allows specific rights to be suspended, by a vote good for five years. Quebec used it to require business to be done in French and only in French.

They don’t get as much business as they might like, but they do have the privilege of doing business in French, so that’s a win for them against the wishes of the majority.

Unfortunately, the majority party in Quebec also used it to prohibit religious headgear in any position of authority, effectively denying male Jews and female Muslims the right to be judges and teachers.

Quebec doesn’t have a mechanism like the filibuster, so that law stands to this day.

Ontario found a new low, by using the notwithstanding clause to override a court. The court had ruled a self-serving change of election laws was unconstitutional. Ontario instantly applied the clause, reintroducing the tyranny of the majority to Canadian politics.

The Question Remains…

We tried to make the tyranny of the majority impossible with rights and constitutions, and in Canada’s case, a senate specifically to do reviews of legislation.

It worked to a degree, so long as you can turn what you want into a right. When you can’t squeeze your problem into the language of rights, though, you fail. How do we give a river the right to be clean? The planet a right to not fry?

I suspect our American cousins may have part of the answer.

In their legislative language,

  • “Filibuster” once was to push back, hard and painfully to the person doing the pushing.
  • Now the word means a 2/3 vote is needed to pass a bill which the opposition greatly dislikes.

In Canada’s language,

  • A duty to consult means not only to discuss adverse consequence to aboriginal peoples, but also to accommodate them in matters that are not rights, but often are agreements between them and Queen Victoria

I’m going to suggest that in politics, just as in computer science, there is language over and above “rights” that can make it impossible for a majority to trample all over their loyal opposition.

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