In the United States, there is a dispute over whether democracy and freedom are compatible. Some, such as Senator Rand Paul of Kentucky, have questioned their compatibility, and even asserted that freedom, rather than democracy, is what the U.S. really stands for. These terms are often used out of context and the dispute often suffers from a lack of historical knowledge, but there is nothing surprising about that.
Most of the men who put together the U.S. Constitution saw the world in class, racial and gender terms. While they wanted a more democratic government than that in England which, for propaganda purposes, they had portrayed as a tyranny, the new American democracy had to be carefully structured. Here is how this translated from theory into practice: the common man’s passions should be held in check by a system that kept the power to make policy in the hands of those white males who had “a material stake in society”—that is, the propertied class. For large segments of the population democracy was to be denied due to both gender and color.
Only a relative few of these men were thinking about freedom per se. And those who did, certainly did not define it in open-ended libertarian terms. Indeed, in late 18th century America, freedom came in two flavors: (1) first and foremost, the freedom from “unreasonable” taxation. What is unreasonable in this sense, would be argued about incessantly right up into the present. (2) Protection against the abuse of government power. The notion of abuse was directly connected to a) examples of alleged British excesses leading up to the American Revolution and b) Federalist party practices (when in power) like the suppression of critical newspapers and pamphlets. It is to cover a host of these sorts of issues, collectively posited as the protection of individual rights or freedoms, that Jefferson and Madison insisted a bill of rights be added to the Constitution as its first set of amendments. Once this was accomplished (December 1791) America’s democracy and a constitutional list of protected rights/freedoms, became compatible.
Getting Things Wrong
Now we fast forward to the present and Republican Senator Rand Paul, who was recently quoted in the New York Times as follows: “The idea of democracy and majority rule really is what goes against our history and what the country stands for [which is freedom]. The Jim Crow laws came out of democracy. That’s what you get when a majority ignores the rights of others.” He goes on to connect Republican Party opposition to a bipartisan congressional investigation of the January 6 “protest” (it was really an attempted insurrection) with the right of the political minority to protect itself against the majority. All of this is ahistorical and illogical.
When taking up Paul’s position there are several points to consider:
First: Historical accuracy. Paul seems confused about the status of majority and minority when it comes to freed slaves in the American South at the time Congress abandoned Reconstruction (March 1877). At this time, the Black population in large parts of the rural South constituted the numerical majority. So, the Jim Crow laws that quickly followed were the products of a local political/racial minority (southern Whites) seeking to suppress the newly won rights of their local majorities (southern Blacks). Thus, Paul has his facts backwards. He might have made this mistake because he thinks that the American Black population has been a minority at all times and in all places throughout the country’s history. Yet here we have an important exception—an exception that challenges the senator’s argument that discriminatory behavior principally has its source with oppressive majorities.
Today, if Senator Paul is looking for a minority in need of protection, he should focus on contemporary southern Blacks (who are now indeed a minority both in size and power.) They are now faced with a white Republican Party in control of state legislatures seeking to suppress the voting access of minorities.
Second. Paul seems not to take into consideration that the American majority has grown and diversified. In other words, when it comes to what the government (local, state and federal) cannot do to you (like suppress your voting rights)—the you have steadily grown larger. Theoretically this should bode ill for the rightwing state legislatures mentioned above. It is unclear how Senator Paul personally feels about this (such narrowing of the election laws has not taken place in his home state of Kentucky), but he is an active member of the Republican Party, and that is party playing fast and loose with the voting laws in a host of southern and mid-western states. Why is the Republican Party doing this? Because a growing and diversifying majority creates a growing number of voters and most come from Black and other non-white segments of the population. Exercising their participatory political rights, they tend to vote Democrat.
Third. The constitutionally protected rights or freedoms are not open-ended. Yet Paul seems to suggest that they are when he asserts that to protect the Republican minority in the Senate, the party can block a bipartisan investigation of the January 6 insurrection. On the one hand, it is quite true that the bill of rights was designed as, and remains, a necessary defense of individual rights from majority demands for political or cultural uniformity. On the other, one can ask, what is Paul and the Republicans trying to protect their party from? The bill of rights does not, and never was supposed to stifle investigation of criminal acts. The only thing the bill of rights does in this regard is to guard the individual against illegal evidence gathering procedures and other abusive practices on the part of law enforcement.
Misusing the Bill of Rights
Against this background, how are we to understand Paul’s specific application of minority rights? At the very least, we can understand it as a misinterpretation of the purpose and intent of the bill of rights and the protections it offers individual citizens. In other words, he is defending his party’s refusal to allow a bipartisan investigation of an apparent crime—a crime with potentially embarrassing trail of evidence.
The Republican Party and its conspiracy-spinning allies in the press and social media (whose speech is nonetheless protected) essentially created an alternate reality for millions of Americans that led some of them to insurrection. Despite many evidence-based demonstrations to the contrary, millions have bought into the myth that former President Donald Trump was cheated—and thus they, his supporters, were also cheated—out of victory in the 2020 presidential election. While both the Republicans and their supporters may believe the unbelievable—aver the demonstrably false—they have no right under the Constitution and its bill of rights to express such a delusion by going on a rampage, destroying public property, and attacking public officials. They have no protected right—no “freedom” to do this even if they claim, probably truthfully, that they believed the president told them to do it.
Taking the next step, what is the real-world consequence of Paul’s defense? Well, given the likelihood that the investigation would connect elements of the Republican Party to the actions of the insurrectionists, this must be seen as self-serving obstruction of justice—itself a crime. For Paul, this is the “freedom” that—conveniently—supersedes democracy.
Finally, the whole affair is a scary example of a paradox: The protection of speech, that is the right to free speech, can degenerate into a campaign of lies and this can easily lead people to unprotected, that is criminal, actions. This is, admittedly, a downside of the bill of rights. An individual (and keep in mind that under U.S. law corporations are seen as individuals) has a protected right to lie to the public—to wit: broadcasted fantasies ranging from those of the National Inquirer to Fox TV and, lest we forget, Donald Trump.
It is worth repeating that one of the positive things about the political evolution of the United States is that it has expanded the ranks of the participatory majority. In political terms, citizens of all genders and races now have both participatory rights and protected individual rights. Correspondingly, the minority—referring here specifically to those who object to this historical expansion—is slowly shrinking. While the latter’s rights to, say free speech, will remain protected, their ability to retain political and cultural power may well diminish over time. There is no doubt that the Republican leadership has a sense of this possibility, and this accounts for their increasingly fierce and frenzied attempts to turn back the clock.
The shift of emphasis from an expanding democracy with protected individual rights/freedoms, to a dangerously ad hoc and sometimes illogical version of freedom, is part of that frenzied activity. Senator Paul and his friends, very short on historical facts and judgment, want all of us to believe in the absurd. That is, obstruction of justice in the name of minority rights is “what the country stands for.”