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For whom the Constitution tolls
by Richard L. Franklin
May 29, 2007

The pell mell rush of states to amend their constitutions so as to deny civil marriages to gays and lesbians reminds me of how profoundly ignorant Americans are regarding the purpose of the Constitution. I doubt that more than one percent of Americans has ever paused to think about why the founding fathers concluded that our future American democracy absolutely had to have a constitution. Why didn't they simply go ahead with a system of popular elections followed by democratic lawmaking and governance? Such a state would certainly qualify as a pure democracy, and it would be happily unencumbered by such irrelevancies as constitutional hindrances in the running of the nation.

Well, maybe not so 'happily'. The main reason the founding fathers were adamant about crafting and establishing a constitution was a philosophical principle that had been debated and thought about in the colonies for many years prior to American independence.

The foremost of the founders were well educated men who were well versed in the history and philosophy of Ancient Greece. They had a special interest in what the the Greek thinkers had to say about the dangers of a pure, unconstrained democracy. They believed such a state would inevitably degenerate into repressive mob rule. Certain facets of human nature never change. The Greeks believed that in a democracy majorities would always sooner or later seek to curtail the rights of disliked minorities or even persecute them with harsh laws.

The founding fathers of America were deeply fearful such a tyranny of the majority would eventually take form if there was no fundamental document protecting unpopular minorities from the hatred and subsequent repression of an aroused majority. The founders were mulling over this concern long before they ever attended the Constitutional Convention, and they brought that concern with them.

The founders were patricians of substantial wealth and status. As is usually the case with a wealthy caste, they were deeply worried the lumpenproletariat might one day rise up and try to take away their money. This fear appears to be universal in all societies. Wealthy classes are always worried one group or another might try to take their money from them. In short, a wealthy propertied class saw itself as a minority that might one day be persecuted by the unwashed, unpropteried, and uneducated masses. Although this motive was hardly admirable, the basis for their concern was not entirely irrational.

They therefore came to believe a strong constitution was imperative to throw up a wall of protection around minority groups within society. Without it, one large majority group or another would, in a pure democracy, always eventually seek to repress, or worse yet, dispossess targeted minorities.

What I'm leading up to is this: the Constitution was created primarily to protect minorities from oppression by majorities. The American Constitution's main purpose was, and is, to protect racial, political, and economic minorities from an inevitable tyranny of the majority.

The high court of Massachusetts has now stated that sexual-orientation minorities are at risk of being victims of exactly the kind of repression feared by the founders. If the system were to work as the founders hoped it would, those minorities would be ensconced in a protective shell provided by the state or federal governments in the form of constitutional barriers.

Hard as this may be for most Americans to accept, the US Constitution exists primarily for the protection of minorities such as gays and lesbians. The great document was created not for the majority of Americans, who unfortunately often fear or hate certain minorities. It was created to protect those minorities from persecution by tyrannical majorities. It was never thought necessary to protect the majorities in a democratic state. As the founders saw it, majorities will generally do just fine without special protections.

As one listens to and reads the polemics surrounding the debate over gay rights, one has to conclude that Americans believe the exact opposite — that the Constitution exists to protect the majority from disliked minorities. In order to convert this absurd notion into a reality, a stream of states has moved to amend their constitutions so as to deny to gay or lesbian couples the right to enter into the exact same civil contracts that heterosexual couples are allowed to enter into.

I can scarcely think of a sadder irony.

Richard L. Franklin

Mr. Franklin is the author of “The Mythology of Self-Worth”, Oxford, 2006

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