As Benjamin Franklin was leaving Independence Hall at the close of the Constitutional Convention, the story goes, he was approached by a woman. The woman asked Franklin what form of government the Founders had just created. Franklin responded, “A republic, if you can keep it.”
In a pure democracy, every issue is decided by majority rule. In a republic, however, citizens and leaders must exercise power under a constitution and according to the rule of law.
One of the primary goals of America’s Founders was to avoid a “tyranny of the majority.” Writing in Federalist No. 10, James Madison detailed the problems of a government controlled by the “superior force of an…overbearing majority.” Instead, the laws of America were to be based on “the rules of justice and the rights of the minor party,” as Madison wrote. The fundamental values of America were intended to be codified in our founding documents, not subject to the changing whims of popular opinion.
Today, however, this foundational American premise is routinely questioned. Some of our most esteemed institutions have embraced the idea of mob rule. Most recently, Harvard announced that it would not renew the appointment of law professor Donald S. Sullivan Jr as faculty dean. Sullivan committed no crime other than upsetting a number of students by joining Harvey Weinstein's legal defense team. Because of the pressure applied to him, Sullivan recently announced that he was withdrawing from Weinstein’s legal team. To those who forced Sullivan’s hand, the rules of justice and the rights of the accused were outweighed by the desires of the masses.
By pressuring Professor Sullivan into withdrawing, Harvard implicitly created a policy that its employees could not represent unpopular defendants. If such a policy became broadly enacted across America’s legal institutions, Weinstein and other accused criminals would be severely limited in their ability to find legal representation.
The court of public opinion has never followed the due-process requirements which constrain the formal judicial system. However, historically, individuals convicted by tabloids and gossip have been able to take solace in the fact that they would be able to state their case before an actual court. With Harvard’s announcement, the mob has now shown that it has the power to flex its muscle even within our legal system. This tyranny of the majority, in which innocence and guilt are determined by public opinion, undermines one of the most significant cornerstones of our republic.
The right of an accused person to a fair trial and adequate legal representation is a foundational principle of our republic—really, of all free societies. In his seminal 1859 work On Liberty, English philosopher John Stuart Mill wrote, “Protection…against the tyranny of the magistrate is not enough: there needs protection also against the tyranny of the prevailing opinion and feeling.” Mill understood that tyranny had to be opposed in all of its forms.
Not only is the right to trial guaranteed for all who are accused of a crime, but our predecessors were so concerned about the persecution of unpopular minorities that they designed our system to make convictions as difficult as possible. In the 1700s, English judge William Blackstone famously wrote, “It is better that ten guilty persons escape than that one innocent suffer.” This idea, known as Blackstone’s Ratio, has long been embedded into America’s legal system. The principle of presumption of innocence—the idea that a defendant is innocent until proven guilty—follows logically from Blackstone’s Ratio. In America, freedom is valued so highly that our justice system would rather protect the guilty than harm a single innocent.
Traditionally, the political left has stood for the representation of unpopular individuals. Thurgood Marshall—who was later appointed to the Supreme Court by Lyndon Johnson—represented an accused rapist (and won an acquittal after exposing inconsistencies in the plaintiff’s testimony). The ACLU once represented actual Nazis. Even the vilest monsters in our society have had lawyers on their side. Those representing unpopular people will inevitably be unpopular themselves. But it was also understood that these attorneys were upholding values that transcended their individual cases. Today, such a far-sighted view is in short supply among those who claim to be enlightened.
We’ve seen the damage that mob rule can cause, and how its power is amplified by the internet. Take, for example, the recent situation involving the students of Covington Catholic. These teenagers had their lives turned upside down after false reports made their way throughout the media, all before a single fact about the situation had been deduced. A vocal segment of the public concluded—based on a brief, inconclusive video—that the students were guilty, and no further evidence was needed. Tyranny of the majority at its finest.
The American justice system has never been perfect. There are a number of high-profile cases throughout our history in which justice was not served. But as a country, as a republic, we have long strived to achieve the ideals laid out in our founding documents. If we allow ourselves to deviate from those ideals based on the popular position of the day, our republic will not long be kept.