The Tyranny of the Minority: Jim Crow and the Counter-Majoritarian Difficulty

32 Pages Posted: 14 Feb 2007 Last revised: 14 Apr 2011

Gabriel "Jack" Chin

University of California, Davis - School of Law

Randy Wagner

University of Denver Sturm College of Law

Date Written: April 14, 2011

Abstract

When analyzing the consequences of and remedies for discrimination against African Americans, courts and scholars characterize African Americans as a minority. This Article shows that the traditional approach is wrong: When it mattered, when the Fourteenth and Fifteenth Amendments were enacted and for decades after, African Americans were a majority or controlling plurality in the states where most lived. African American-backed majoritarian governments controlled the South after the Civil War; while in power, they enacted strong civil rights laws and created a public education system. These policies were reversed, and segregation imposed, not because African Americans were a minority, destined to lose in the majoritarian political process, but rather through elimination of democratic politics and imposition of minority rule. African Americans and their white allies were stripped of their electoral majority through fraud, violence and illegal disenfranchisement. This Article argues that the most important harm African Americans suffered was something that the law has until now overlooked: Loss of the right to control the governments of several Southern states. This injury means that current African Americans disadvantage likely rests on a constitutional violation; Jim Crow could not have happened had democracy functioned as provided in the Constitution. Consideration of African American majority status also sheds new light on the counter-majoritarian difficulty. In reviewing measures oppressing African Americans, the Court did not have to balance majority rule against minority rights; instead, majority rule and constitutional rights both militated toward invalidation of laws passed by a minority to oppress the majority.

Keywords: segregation, Jim Crow, constitutional law, equal protection, Reconstruction, race

JEL Classification: K19

Suggested Citation

Chin, Gabriel "Jack" and Wagner, Randy, The Tyranny of the Minority: Jim Crow and the Counter-Majoritarian Difficulty (April 14, 2011). Harvard Civil Rights-Civil Liberties Law Review, Vol. 43, p. 65, 2008; Arizona Legal Studies Discussion Paper No. 07-03. Available at SSRN: https://ssrn.com/abstract=963036

Gabriel Jackson Chin (Contact Author)

University of California, Davis - School of Law ( email )

Martin Luther King, Jr. Hall
400 Mrak Hall Dr.
Davis, CA 95616-5201
United States
520-401-6586 (Phone)
530-754-5311 (Fax)

Randy Wagner

University of Denver Sturm College of Law ( email )

2255 E. Evans. Ave.
# 465A
Denver, CO 80208-0600
United States
360-871-6761 (Phone)

HOME PAGE: http://www.law.du.edu

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