Constitutional Law and the Teaching of the Parables

Abstract

No one wholly dominates another in a democracy. This central limiting principle in democratic political conflict does more than prohibit imprisonment or murder of political opponents; it also proscribes the total and permanent defeat of opponents' self-defined ideological or economic interests. This constraint has varied expressions in American democratic theory and practice-the assumed permanent existence of some form of opposing political parties, the ideological tenet that respect for minority rights always limits majority rule, and the prohibition of slavery. There is, however, a problem with this supposed democratic constraint: Some political disputes simply moot it. In some disputes, victory for one side necessarily amounts to total, annihilating defeat for the other-at least as the losers construe that defeat. In this circumstance, democratic principles cannot explain why the loser should accept the legitimacy of his defeat. Even if the loss followed from a majority vote in a popular election, the majority's action would not necessarily attain legitimacy under democratic theory. This is because equality is a bedrock substantive principle of democratic theory and, insofar as the majority is free to disregard the wishes of members of the losing minority and thereby to treat them as less than equals, majority rule is intrinsically at odds with the egalitarian principle.