In any institution in which a majority of citizens or members can pass laws or rules that apply, not just to themselves, but to all members of the group, judgment is required to distinguish potential laws which are reasonable and fair from those which are tyrannical because they are unnecessary, unfair, and justifiably intolerable to the minority that opposed them. And formal mechanisms need to be in place, wherever feasible, to prevent tyrannical laws from being passed by those whose judgment in such matters might fail. 

The founding fathers of the American republic were not unaware of this problem, and some of the provisions of the U.S. Constitution can be viewed as ways of addressing it even if that is not necessarily their expressed or realized intention. James Madison wrote in Federalist Paper 51: "It is of great importance in a republic not only to guard the society against the oppression of its rulers but to guard one part of the society against the injustice of the other part. If a majority be united by a common interest, the rights of the minority will be insecure." Many of the features of the Constitutional organization of the Federal government are meant to keep any branch or department from attaining domination of the others, but in fulfilling that function, they also serve as a safeguard against any popular majority, as represented then by the House of Representatives (and now by the Senate and the House of Representatives in partnership), from being able to oppress other citizens. Again Madison from the same work: "In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions."

However, the Constitution did not solve the problem of majorities' imposing tyrannical laws, or imposing unnecessary and unfair or unreasonable laws tyrannically without attending to the needs of the minority. (A case can be made that the American Civil War resulted because of that, and I will return to this point later.) And because the problem of the tyranny of the majority is still not resolved today, nor even generally understood, it needs to be addressed as much as ever.

Madison had thought that the greatest safeguard against the tyranny of the majority was the large number of sects and divergences of interests and opinions that divided people in ways that made it virtually impossible for coalitions to form stable majorities. While that is often the case, historical divisions have arisen over characteristics that have brought about numerical minorities which have been more than temporarily placed in that status. (The phrase often used is "permanent minorities", but "permanent" is too strong because the problem is not that one is in a permanent minority, but that one is in a minority with no likely possibility to be in the majority in the near future or within even a few generations.) Race, ethnicity, color are such characteristics in many societies today, but there are philosophical and other kinds of minorities as well. Moreover, majorities in any legislature often merely impose their will on those numerical minorities with opposing philosophies for as long as they are able, which means at least one election cycle, if not many. In some of these cases, the minority viewpoint may be "represented" in the legislature, but it is not attended to by the majority, and is therefore not what might be called "effectively represented."

Madison also noted the problem of a majority's, in a sense oppressing itself by passing laws that are only as temporary as the passions and fashions that make them seem desirable. He wrote of the dangers of "mutable government" in Federalist Paper 62, and a small part of what he said is: "It will be of little avail to the people that laws are made by men of their own choice ... if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule which is little known, and less fixed." And he said, (Federalist Paper 63) "...an institution may be sometimes necessary as a defense to the people against their own temporary errors and delusions.... ...there are particular moments in public affairs when the people, stimulated by some irregular passion or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind? What bitter anguish would not the people of Athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions? Popular liberty might then have escaped the indelible reproach of decreeing to the same citizens the hemlock on one day and statues on the next."

I believe that Alexander Hamilton gave a hint to the solution of preventing tyranny of the majority in the last Federalist Paper (85), when he wrote, in a different context, "The intrinsic difficulty of governing thirteen states at any rate, independent of calculations upon an ordinary degree of public spirit and integrity will, in my opinion, constantly impose on the national rulers the necessity of a spirit of accommodation to the reasonable expectations of their constituents." Also, "Every Constitution for the United States must inevitably consist of a great variety of particulars in which thirteen independent States are to be accommodated in their interests or opinions of interest." What I wish to argue here is that the founding fathers set up the government, via numerous mechanisms in the Constitution, in such a way that it was supposed to force, not compromise, but accommodation of numerical minorities, in order to achieve majority rule, and that there were more obstacles preventing the tyranny of the majority in more important issues than in less important ones. The greater the obstacles meant, at least for Hamilton, the greater need for mutual accommodation. The electoral college is one such mechanism, but there are a great many more. I will describe and discuss them shortly.

What I mean by "accommodation" in the sense I am using it, as opposed to "compromise," is that each side can get what it wants without having to give up anything important to it. In a compromise, each side often gives in, or gives up, something it wants in order to get something else. Or it does something it does not want to do in order to get something it does want. In accommodation of the sort I have in mind, no side has to give up anything of importance. Accommodation is about finding what is often referred to as "common ground" but in a sense that is perhaps different from how even that is usually meant..............

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