Back by Popular Demand: Tyranny of the Majority

The scene in front of the Hospice House Woodside last week was something out of a Fellini film. On the orders of Florida Gov. Jeb Bush, troopers rushed into the hospice and whisked away a helpless Terri Schiavo, taking her to a hospital where she again would be fed through a tube, against the wishes of her husband. The ambulance passed through wildly cheering crowds as the word spread that their side now had possession of the “body politic.”

The framers of the Constitution spoke a great deal about the “body politic,” the right of the represented to govern themselves in a democratic society. Though this term has taken on a literal meaning in the struggle over the body of Terri Schiavo, the Florida controversy has returned this country to a debate that raged in the Constitutional Convention of 1787. On one side, advocates have denounced the decisions in favor of Schaivo’s husband as “judicial tyranny.” However, the Legislature and governor’s intervention in this one case raises the specter of a greater evil identified by the framers: majoritarian terror.

Left in a “persistent vegetative state” after her heart stopped in 1990, Schiavo has become the personification of this classic fight between the authority of the courts and the will of the people. Her husband, Michael, has been battling her parents for six years to allow her to die. Her feeding tube was removed by court order Oct. 15, but the Florida Legislature on Oct. 20 gave the governor the power to order it reinserted.

Advocates of keeping her on the feeding tube have criticized the courts for failing to yield to the overwhelming view of the public that the tube should not have been removed and that Schiavo’s husband was not acting in her best interests. Pro-life activist Randall Terry of Operation Rescue was ecstatic on CNN, proclaiming that finally “an executive and a legislative body stood up to judicial tyranny.” Of course, when legislatures have passed bills on subjects like abortion rights or same-sex unions, Terry has denounced them as “godless” and led calls for court challenges.

The framers of the Constitution understood that the test of any democratic system was its ability to restrain, not satisfy, the majority. Much of our Constitution is designed to combat the evil of majoritarian terror -- the tyranny of the majority over those who are unpopular or underrepresented. For this reason, the framers rejected a pure democratic model and instead embraced the model of a republic containing the doctrine of separation of powers, including an independent judiciary.

The Schiavo controversy was anticipated by the framers, who warned of the natural inclination of politicians to intervene in individual cases. James Madison criticized state politicians for altering “rights which should have been left to judicial controversy.” Alexander Hamilton warned of the tendency of politicians to want to force their views on individual cases, stating that “a legislature

The temptation to intervene in pending cases is sometimes irresistible for politicians. Indeed, Congress has intervened in past cases to overturn judicial orders -- such as unpopular rulings in the trial of Timothy McVeigh.

In perhaps the most notable of these cases, Congress intervened in a single-family custody dispute to negate the rights of one parent in favor of the other. The “Elizabeth Morgan Act” was designed to allow a mother to return to the U.S. after she took her daughter to New Zealand in violation of court orders and international laws against parental kidnapping. Because Morgan had accused her husband and in-laws of child abuse, she became a popular public figure despite the court rulings rejecting the claims.

After years as a fugitive, Morgan contacted members of Congress and convinced them to slip legislation into a transportation appropriations bill stripping her husband of his previously awarded rights, restricting the ability of any court to rule against her, and changing the rules regarding visitation and custody for this one family. As in the Schiavo case, Morgan’s congressional advocates blamed the courts for their repeated “failure” to side with her in the dispute. The constitutional challenge is now pending before the D.C. Court of Appeals.

There are important issues in the Schiavo case that should be addressed by the courts and by the legislatures. In 1990, the same year that Schiavo had the heart attack, the Supreme Court decided the case of another woman, Nancy Cruzan. Cruzan was also being fed through a tube and the court ruled that the tube could be removed if there was “clear and convincing evidence” that that is what she would have wanted.

The Schiavo case now presents the difficult question of how such a decision can be answered in the absence of a “living will” -- and with a divided family. This is a question that has produced many previous legal fights around the country and the Florida Legislature could have addressed this question for all such cases. Instead, Gov. Bush and the legislators have acted to satisfy public opinion in a single case and call it popular justice.

The Schiavo case shows why justice cannot be meted out by plebiscite or popular vote. Schiavo’s husband has become unpopular because he fathered a child by another woman while his wife lay helpless. However, he is constitutionally guaranteed to have his case judged on its merits, not its Nielsen ratings. His lawyer has said that he will go to court today to challenge the governor’s actions. But this guarantee is thwarted when a legislature cranks out special laws to apply to his case to satisfy public demands. Laws are not like vanity plates: They cannot be tailored to individual citizens without defeating the very essence of the rule of law.

None of this means that Schiavo’s husband is right. Rather, in resisting alleged judicial tyranny, legislators have unleashed the far greater historical menace of majoritarian terror.

Of course, the majority never fears its own judgment or motives -- that is the benefit of being in the popular majority. However, the desire to dictate the outcome of individual cases is the very essence of tyranny, an inherent vulnerability of all democractic systems. It lies like a dormant virus in our system and periodically bursts forth in a full fever of popular opinion. It was that fever that was evident in the parking lot of the Hospice House Woodside as Terri Schiavo was carried through the crowd, the body politic floating in a sea of popular justice.

Jonathan Turley is a law professor at George Washington Law School and represents Eric Foretich in his constitutional challenge of the so-called Elizabeth Morgan Act.