What the Majority Can't Take

On rights, democracy, and what fifty-one percent cannot vote away

I am sitting here with a glass of Jameson’s, a cigar burning in the ashtray, watching the light fail over the Nebraska plains.

The light goes a particular way out here. Fast, then all at once. You learn not to count on it.

I have been thinking about majorities, about what happens when enough people decide they want something that belongs to someone else. About the arithmetic of democracy and where the numbers stop mattering.

People tell me I always start these pieces the same way. The cigar, the whiskey, the Nebraska plains. My daughter says I have become a parody of myself.

Fair enough. But the ritual matters. The glass, the smoke, the fading light. These are the conditions under which I think clearly.

Here is what I think: certain rights cannot be touched by popular vote.

Not by referendum. Not by mandate. Not by any number of people claiming to speak for democracy. Freedom of speech exists whether anyone likes what you say. Religious liberty means nothing if it only protects the majority religion. Equality before the law fails the moment it becomes conditional on approval. These rights function as shields, and they protect you precisely when you are unpopular, outnumbered, inconvenient.

The alternative is tyranny with better paperwork.

I learned this first in a small town thirty miles from here. Good people, most of them. Church on Sunday, work on Monday, the rhythms you expect. But small towns operate on consensus, and consensus has a way of hardening into something else. If you believed differently, lived differently, were different in ways the town had not agreed to accommodate, you understood your position. Not through violence,we were civilized about it. Through silence. Through certain doors that remained closed.

This is the soft tyranny of the majority, and it runs on the assumption that rights are privileges granted by popular approval.

I am suggesting that this assumption is wrong.

My father fought in the war. He did not suffer fools, did not tolerate excuses, did not have much patience for people who could not say what they meant. He came home from Europe and went back to work and raised his family and died before I understood half of what he was trying to teach me.

But I remember one conversation.This was the early 70’s, I was thirteen, thought I knew everything, riding in his truck coming back from town. There had been talk at the diner about the migrant workers who came through every harvest season. People were saying they should stay out of the main businesses, that it made customers uncomfortable, that maybe the town should do something about it.

I said something about how most people didn’t want them around, about how maybe they had a point.

My father pulled the truck over. Looked at me like I had lost my mind.

He said: The people do not get to vote on whether someone has rights. That is not what we fought for. That is what we fought against.

Then he started the truck and we drove home in silence.

I did not understand him then. I understand him now.

He was talking about limits. About the difference between legitimate democratic choice and majority tyranny. About the fact that some things are not subject to popular vote, no matter how many people line up to vote for them.

We are living now in a moment that has forgotten these limits. Majorities vote to restrict press freedom and call it protecting community values. They vote to target religious minorities and call it preserving tradition. They vote to expand surveillance and call it security. Always the same justification: the people have spoken, the polls are clear, this is what democracy requires.

But democracy requires something else entirely. It requires protecting people from each other. It requires building institutions strong enough to resist majority impulses when those impulses threaten fundamental freedoms. It requires accepting that some things are not subject to popular vote.

This is not a popular position. It has cost me friends.

Three years ago there was discussion in town about a Muslim family that wanted to open a small mosque. Just a handful of families, quiet people who worked at the plant. But the discussion at the town council meeting turned ugly in the way these things do. People spoke about zoning regulations, about traffic concerns, about whether that kind of building belonged in a residential area.

I stood up ,made a fool of myself, probably,and said that we all knew what this was really about. That these people have the same constitutional rights as anyone else. That their rights do not require our approval.

Someone I had known for thirty years told me I had forgotten where I came from, forgotten what kind of town this was.

And I said: The majority can want what it wants. It cannot vote away someone’s fundamental rights.

That man does not speak to me anymore. Neither do several others. My wife,my proud Latina wife who has lived her whole adult life in this town, who knows something about what it means to be different in a place that values sameness,told me I did the right thing. But she also told me I should be prepared for the cost.

She was right about the cost. But she was also right that it was worth paying.

The Muslim family never did get their mosque. The building permit was denied on some technicality, some zoning issue that materialized just in time.

The confusion is understandable. We have spent so much time valorizing democracy, treating it as an end rather than a means, that we have lost sight of what it was meant to accomplish. Democracy is not valuable because majorities are wise,they often are not. It is valuable because it creates a system in which power is dispersed and limited, in which no single faction can permanently dominate, in which individuals retain certain inviolable freedoms even when they are outnumbered.

Strip away those freedoms and you have something else. Mob rule, perhaps. Authoritarianism by consensus. Democracy in name only.

My wife understands this in ways I am still learning. She grew up in a place where the majority decided that people who looked like her, spoke like her, came from where she came from, did not fully belong. Where rights existed on paper but disappeared in practice whenever the majority found them inconvenient.

She came here,to Nebraska, to the plains, to a town where almost everyone was white and Protestant and suspicious of difference,and she carved out a life. Raised our children. Built a career. Earned respect through sheer force of will and competence.

But she has never forgotten what it feels like to have your rights depend on majority approval. She has never forgotten that approval can be withdrawn.

This is what people who have always been in the majority do not understand. They think rights are stable, guaranteed, permanent. They do not understand that for minorities,racial minorities, religious minorities, any group that exists outside the consensus,rights are fragile things that require constant defense.

This is why rights must function as shields. Why they must stand regardless of popular opinion. Because the people who need rights most are precisely the people the majority would most like to see stripped of them.

Take surveillance, which has become the defining civil liberties question of our moment. The government can now track our movements, monitor our communications, predict our behavior with increasing accuracy. When polled, most people express support for this. Nothing to hide. Security over privacy. The tradeoff seems acceptable.

But privacy is not simply a preference to be weighed against security. It is a precondition for living as a free person rather than a permanent suspect. It is the difference between citizenship and subjection. And the fact that most people might be willing to trade it away does not make it acceptable to take it from everyone.

This is what I mean when I say rights function as shields. They protect you when you need protection, which is when you are vulnerable and outnumbered and the majority has decided you are the problem.

I pour another finger of Jameson’s. Outside the window, full dark now.

I have seven children, fourteen grandchildren. One is gay, heads a women’s domestic violence program in Boise, lives with a partner I have never met.One runs the medical department in a Wyoming state prison. They are building lives in a country that is less certain about their place in it than I would like.

I think about what kind of democracy they will inherit.

Do I want them living in a system where their rights depend on remaining popular? Where being different means being vulnerable? Where fifty-one percent can vote away the freedoms of forty-nine?

I do not.

I want them living in a democracy that understands its own limits. That knows some things are not negotiable. That protects people especially when protecting them is unpopular.

This is not idealism. This is survival.

Democracy without these limits does not last. It collapses into authoritarianism or chaos or some combination of the two. This is not speculation. This is history, repeating itself in real time in country after country where majorities have voted away constitutional constraints in the name of efficiency or security or the popular will.

The pattern is always the same. First the majority votes to expand executive power. Then it votes to weaken judicial independence. Then it votes to restrict press freedom, to target minorities, to silence dissent. Each step has popular support. Each step is justified by appeals to democracy. Each step makes the next one easier.

This is not the democracy my father thought he was fighting for.

So here is what I believe, stated as plainly as I can: there are rights that majorities cannot touch. Freedom of speech, even speech that offends. Religious liberty, even for minority faiths. Equality before the law, even when inequality would be more efficient. Privacy, even when surveillance promises security.

These rights are not subject to cost-benefit analysis. They are not up for referendum. They stand regardless of how many people oppose them.

This is not elitism. This is not anti-democratic. This is democracy understanding what it requires to function.

Because democracy is not just a counting mechanism. It is a system built on the principle of equal respect,the idea that every person’s dignity matters, that no one is disposable, that certain freedoms cannot be stripped away no matter how convenient it might be for the majority.

Abandon this principle and you have abandoned democracy itself. You have something that looks like democracy, that uses democratic procedures, that claims democratic legitimacy. But it is not democracy. It is majoritarianism, which is a different thing entirely.

The distinction matters.

Majoritarianism says: whatever most people want is legitimate. Democracy says: what most people want is legitimate only if it respects everyone’s fundamental rights. Majoritarianism says: count the votes and declare a winner. Democracy says: count the votes, but recognize limits on what winners can do.

It is the difference between a system that protects people and a system that simply empowers whoever happens to command a majority. It is the difference between genuine freedom and the performance of freedom. It is the difference between a democracy that lasts and one that collapses under its own contradictions.

One of my daughters called last Sunday. She is the one who heads the women’s domestic violence program in Boise, who sees every day what happens when the majority decides that some people do not deserve protection. She asked me why I keep writing these pieces, why I keep making arguments that most people do not want to hear.

I told her what my father told me: because some things are worth saying even when no one wants to hear them. Because rights matter even when they are unpopular. Because the test of a democracy is not how it treats the majority but how it treats minorities.

She said: That is why I do this work.

And I thought: Good. Someone has to.

Because this fight does not end. The majority will always want to strip away rights from people it does not like, does not understand, does not want to accommodate. This is human nature. This is history. This is what majorities do when no one stops them.

So someone has to stop them. Someone has to stand up and say: No. These rights are not negotiable. These people are not disposable. This line cannot be crossed.

Sometimes that someone is a court. Sometimes it is a constitution. Sometimes it is just an old man writing pieces that no one reads, insisting on principles that no one wants to hear.

But it matters.

Because without these limits, without these shields, without these non-negotiable protections, democracy is just another word for the strong taking from the weak.

And that is not good enough. Not for my grandchildren. Not for my wife. Not for anyone.

The stars are out now, more than you can count, the way they are this far from anywhere. Same stars my father saw when he came home from the war and tried to teach me about limits and rights and the difference between democracy and mob rule.

I hope my daughter keeps fighting like hell for people who need someone fighting for them. I hope someone keeps writing these pieces after I am gone, keeps making these arguments, keeps insisting that some things are not up for a vote. Because this matters. Because democracy without limits eats itself. Because my father did not suffer fools, and neither should we.

If these weekly pieces matter to you,if you think someone needs to keep saying these things even when no one wants to hear them,consider becoming a paid subscriber. It keeps me writing, keeps the cigar lit, keeps the Jameson’s in the glass. And it tells me these arguments are worth making.