Winner Take All

By Edmund Opitz, author of The Libertarian Theology of Freedom and Religion and Capitalism: Allies, Not Enemies. This article originally appeared in the March 1965 issue of The Freeman.

The census of 1960 turned up one hundred and ninety million souls living in these United States. Of this number, roughly one hundred and eight million qualify to regis­ter as voters. This is 56 per cent of the nation, and this body of people constitutes the electorate of the United States. But, of the number of persons eligible to register, only eighty-one million have actually done so; twenty-seven million have not, for rea­sons ranging from indifference to intimidation. The total vote cast in the 1964 Presidential sweep­stakes was roughly sixty-nine mil­lion. This is 64 per cent of the electorate, but it is only 36 per cent of the population. The 1964 election was won by a candidate who garnered forty-two million votes. This figure translates into 60 per cent of the votes cast, 51 per cent of the registered voters, 38 per cent of the electorate, and only 22 per cent of the population. This is “the majority” which, in the eyes of some political theor­ists, confers a mandate on the victorious party to impose its pro­gram on the reluctant “minority” of the nation, that is, on the other 78 per cent!

This is the theory of majori­tarianism, ardently espoused by some articulate intellectuals. Here, for example, is Professor James McGregor Burns of Williams Col­lege. Dr. Burns declares that “… as a liberal I believe in majority rule and majority rule is a ques­tion of adding up ‘bodies’ (or, I hope, adding up minds).” Profes­sor Burns believes that men who embrace the conservative position have thereby foresworn what he calls the numbers game, this game having been staked out by liberals as their very own. “Because as soon as conservatives start to base their principles on numbers,” he writes, “then they’re playing the liberal game (what they call the liberal game; what I would call subordinating their basic values to a liberal premise, which is the premise of majority rule).”

It may be conceded that a “ma­jority” has, by definition, the power to bull its way through and work its will on the nation, but does it have the right to do this? Is there not some principle or right or rule of ethics which even a “majority” ought to ac­knowledge, and to which it should yield? Addressing himself to this question, Professor Burns re­phrases it and then gives his answer. “What does a majority have the right to do?” he asks. “It has the right to do anything in the economic and social arena that is relevant to our national prob­lems and national purposes—ex­cept to change the basic rules of the game.”

Unqualified Majority Rule

That final disclaimer sounds like an afterthought, and some political theorists support the ma­jority rule idea without qualifica­tion. Professor Herman Finer of the University of Chicago, for in­stance, writes, “For in a democ­racy right is what the majority makes it to be.” In other words, the majority has the power to car­ry out its will, and thus whatever it does is all right; its program is right, by definition.

If so, then the liberals, by win­ning an election, have won the right to run the country as they please—including, Burns sug­gests, the right to be let alone by conservatives! The liberals now have a majority of the nation be­hind them, Professor Burns as­serts, and “I want the liberals of the nation to have a right to rule in what I think is their day to­day.”

Professor Burns seems not to have noticed, but in saying this he has abandoned the majority rule idea for the more exciting notion of Winner Take All! In the politics of winner-take-all—which is modern liberalism—officials be­gin to treat public office as their own private property, with bene­fits for them to enjoy but without the responsibilities owners assume in rightful property relationships. The national government becomes an article of commerce whose capture is worth over a hundred billion dollars annually to those who gain possession of it. Those who win an election, even by the slimmest of margins, have a man­date from the country—provided they are liberals!—to impose their program on the whole nation. It is amusing that those who begin by playing the numbers game in politics wind up with a mathe­matical absurdity; a majority, 51 per cent, is—in their book—not only equal to the whole, 100 per cent, but superior to it!

This is what the idea of major­ity rule boils down to. Stated baldly, it is absurd, but it is dif­ficult to examine the notion of ma­jority rule coldly because most of us are scared off by what majori­tarians say are the alternatives to majority rule. Those who question majority rule are emphatically not thereby committed to minority rule, or one man rule, or rule by an elite—or any other kind of rule—meaning by “rule” the sub­ordination of some to the will of of another. These are false an­titheses, for all varieties of rule are on the same side of the ledger. On the other side of the ledger is the proper alternative to all species of rule, namely, the system of individual liberty. The system of liberty stands in contrast to ma­jority rule, minority rule, and all other forms of rule. Individual liberty within a proper spiritual, moral, and legal framework is in one category; majority rule is in another. And the two categories must not be confused. When the alternatives are spelled out, that is to say, when we understand the implications of majority rule, on the one hand, and the implications of a system of liberty on the other, some will choose the for­mer, others the latter. But obvi­ously we cannot make an intelli­gent choice if there is confusion as to what we are choosing.

Second-Class Citizens

What does majoritarianism mean? Whenever a society subor­dinates every other principle to the principle of majority rule—or whatever the label authoritarian­ism may assume—it winds up with a political arrangement in which winner takes all; and the politics of winner-take-all results in a society with a permanent body of second-class citizens, a servile society. If a majority of the voters, 51 per cent, controls the whole society, then the 49 per cent who lose the election are prevented from exercising their full citizenship rights. I do not mean to say that the losers are completely deprived of their rights, for this is not the case; but the losers—merely by coming out second best in an election—no longer have the same rights as the victors. Some rights remain, but there is no longer equality of rights, and this is the critical point.

An illustration may make this clearer, an illustration from the field of religion, where the old principle of equality of rights is still pretty much intact. Suppose that my denomination, Congrega­tionalism, were to grow and grow until, numerically, we were to constitute a majority of the elec­torate. Then suppose we decided to play the game of winner-take-all politics (as we once did, as a matter of fact, and kept on doing in Massachusetts, until 1833). We would win a national election and use the fact of victory at the polls to “establish” this denomination. Now that we are “established” we are able to levy taxes on Meth­odists, Baptists, Catholics, and Holy Rollers, and force you to contribute to our support. We would not, of course, close the doors of your churches, nor for­bid you to attend services when­ever you chose. All we’d do is deprive you of part of your in­come and property, and then we’d use your income and your prop­erty to promulgate our doctrines. If 10 or 15 per cent of your in­come is being spent by us to fur­ther our purposes, it’s obvious that you have that much less money to spend on your own pro­grams.

Not Religious Freedom

Now, money is not everything in religion, but it is something. It takes money to build churches and keep them up; it takes money to train and support ministers; it takes money to print hymnbooks and textbooks and send out mis­sionaries, and so on. And it is obvious that your religious pro­gram will suffer to the extent that we force you to pay for our pro­gram. There is a sense in which you are still free to practice your religion, but you are not fully free to practice it; your religious lib­erty has been impaired.

Most people would say, as a matter of fact, that the society I have conjured up in my illustra­tion does not have religious lib­erty. And anyone who argued—in defense of this arrangement–that the Methodists and Baptists shouldn’t complain, but rather should work toward becoming a majority so that they too could operate a racket, would be hooted down, and properly so. The be­liever in religious liberty will not settle for an ecclesiastical ar­rangement which invariably puts minority religions at a disadvan­tage; he wants full freedom for all. Nor will the believer in polit­ical liberty settle for a theory which contemplates a permanent category of second class citizen­ship as an intrinsic part of its operation. And yet this is precisely what present-day liberalism stands for; this is what it offers us as the latest thing in politics and morals!

No majority had the right, under our original system, to im­pose its religion on any minority, or impair its freedom of utter­ance, or deprive it of property. But under the new dispensation “The Majority” is almighty. All it has to do is gain control of gov­ernment and then it has a legal cloak behind which an actual nu­merical minority of the nation uses the governmental machinery to work its will on the rest of the society. According to the theory of majority rule, the governmental machinery is always “up for grabs” for such a purpose.

Neglected Questions

Collectivist regimes act as if the apparatus of government were the private property of officeholders, through which these men exercise their ownership of a country, and their power over the lives of the citizenry. The excuse offered is that “we are doing it to our­selves.” What a misuse of lan­guage this is! If Methodists are doing it to Baptists or Congrega­tionalists to Presbyterians, it is obvious that some people are do­ing something to other people; “we” aren’t doing it to “our­selves.” The “we” who are doing it aren’t the same people as the “ourselves” to whom it is done!

Those who put their trust in majoritarianism proclaim that there is no other test of the good­ness of a law than its ability to muster the might of the majority behind it. Any law that has ma­jority support is a good law, by definition, and there is no other test. By the same token, govern­ment’s role is to perform what­ever services a majority demands of it, and short of not killing the goose, the majority is entitled to all the golden eggs it can get.

I have analyzed and condemned this doctrine; it deviates from earlier American practices, as well as from sound principles of polit­ical philosophy. Majoritarianism gives wrong answers to questions about the proper role of govern­ment in society, and it neglects questions about the attributes of good law.

The Prescribed Limits

No one can read our Constitu­tion without concluding that the people who wrote it wanted their government severely limited; the words “no” and “not” employed in restraint of governmental power occur 24 times in the first seven articles of the Constitution and 22 more times in the Bill of Rights. Why this distrust, and what was their intention? These men understood the necessity of the police power in a society. But they recognized its potential dan­ger, as well, and so they designed the machinery for keeping their government limited to the per­formance of policing functions. The police power is, ideally, com­petent to maintain the peace and order of the community, which is what the policing of a society means. If the police power—gov­ernment—is limited to policing, then the society is free; the public sector is small and well defined, the private sector is large enough to give peaceful people plenty of elbow room.

The Constitution designed a federal republic with both ter­ritorial and numerical representa­tion. It is improper to refer to the government in Washington as “the federal government”; it is the na­tional government. The federal structure is comprised of the na­tional government plus the gov­ernments of the sovereign states. Government is the power struc­ture of society, and federalism limits power by dividing it be­tween nation and states. Power is divided still further by separat­ing functions within the several governments. The federal struc­ture deals with the problem of power in much the same way as a Gothic cathedral handles archi­tectural stresses. The enormous weight of the roof of one of these medieval structures presses out­ward against the walls and would level them, except for the flying buttresses which exert an equal pressure inward to maintain the building in a dynamic equilibrium. A national government tends to extend its sway over a whole na­tion unless its centrifugal force is countered by the centripetal force exerted by the states and the congressional districts.

The Philosopher-King

The structural complexity of the American system of government makes sense if we understand the premises of those who created it. They were concerned to limit and cramp the style of government in order to hamstring the proven capacity of men in power to do evil. The rather awkward ma­chinery they put together may offend against elegance, but it serves admirably the purpose for which it was designed. It is not, however, an efficient, streamlined political mechanism, such as would be erected by those who believe government should be unfettered and strengthened in order to give the wise men who wield this power increased opportunity for doing good. This idea goes back to Plato’s Philosopher King.

The Philosopher-King idea is first to create elaborate and pow­erful governmental machinery, capable of running society and do­ing wonderful things for The Peo­ple, and then to put the wisest and best men in control. This approach was repudiated in the Con­stitution, by the most sophisticat­ed political thinking on record. This thought is premised on the understanding that human nature is such that if power situations are deliberately created, the worst men will gravitate toward them, and such good men as are given arbitrary power will be corrupted by it. At stake here are two con­trasting estimates of man.

Two Views of Man

What is your reading of human nature and the consequences of power? Optimists and utopians tend to think in terms of erecting large and powerful structures of government with wise and good men in charge. Overlooking the corruption in human nature they dream of the benefits which might flow from such an arrangement. Realists, on the other hand, will try to limit the power of govern­ment in order to forestall evil men from snatching control of it and doing great harm. A federal re­public along the lines of the Amer­ican model is the product of this outlook. “When it comes to ques­tions of power,” wrote Jefferson, “let no more be heard of the good­ness of man, but bind him down from mischief by the chains of the Constitution.”

The very structure of constitu­tional government, then, reflects a philosophy of man; the political machinery itself disperses power and thus limits it. Then, those in the old-fashioned Whig and Class­ical Liberal tradition placed fur­ther controls on power by laying down the earmarks of good law. They may be briefly summarized. In the first place, a good law makes no pretensions to perfection. No human laws are in fact perfect, and the attempts of some to apply their “perfect” laws to imperfect hu­man beings have been disastrous. A good law will take human short­comings into account; it will re­flect our limited understanding and sinful nature.

In the second place, a good law will be written so as to correspond to what the eighteenth century referred to as the Higher Law. A good law, in other words, will not violate our ethical code; it will not supplant morality with mere legality.

Equality before the Law

Generality is a feature of a good law. Everyone should be equal be­fore the bar of justice, and so a good law is one which applies to all men alike and without excep­tion. Men are different in several important ways; some are bright and some dull; some are rich, others are poor. There are dif­ferences of nationality, color, and religion; there are employers and employees, and so on. These are important distinctions and clas­sifications—but not to the law! The law should be blind to such differences, and any law which is general, applying to one man as to all cannot have much wrong with it. Fairness in application coupled with proper enforcement induces respect for law and makes for a high level of law observance.

Besides being imperfect, moral, and general, a good law is condi­tional; it has an “iffy” quality about it. It says, if you steal, or if you defraud, or if you drive on the left side of the road, you will be punished. A good law takes the side of the negative, saying “Don’t,” or “Thou shalt not.” This means that it is theoretically pos­sible for a man to negotiate life without encountering the law, pro­vided he sticks to the positive. The fifth and final point in this abbrevi­ated list is something like the first; a good law reflects the customs and habits of a people—otherwise it is an attempt to reform them by law, and reformist law is bad law.

When a man thinks he’s Napo­leon, and acts on that assumption, the rest of us lock him up out of harm’s way. Things aren’t so sim­ple when a whole society is smit­ten by ideas of grandeur. When a society projects its Napoleonic fantasies onto government, the picture unfolds much as we have observed it during recent history. Current history has given many sensitive people the jitters, as any­one can confirm for himself who will inspect the present offerings of our poets, playwrights, and artists. They testify to an epi­demic sense of alienation and con­flict. Man, they say, is at war with his own creations; he can’t get along with his fellows, and he’s at odds with himself. The modern malaise is not, of course, primarily political, but if it disposes us to retrace our steps to the point where we’d seriously overhaul our understanding of man’s nature and his destiny, important polit­ical consequences would follow. Appraise man realistically and governments would lose their Na­poleonic pretensions. Limit gov­ernments to policing functions and, although that alone wouldn’t solve social problems, these would then challenge rather than threaten us. And challenge is just what we need to grow on!

Read more from the Edmund Opitz Archive.

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