Lighted Athletic Fields, Public Opinion, and the Tyranny of the Majority

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1 Lighted Athletic Fields, Public Opinion, and the Tyranny of the Majority Recently in Worcester, there have been some contentious issues about which different constituencies in our community have very different opinions. The prime example, prominent in the 2011 campaign for Art Bustard's seat on Worcester's Board of Supervisors, was whether to allow the construction of a new lighted football field at Methacton High School. Such a project requires a new ordinance to replace Worcester's existing lighting ordinance. Because there are houses very near the high school, allowing the construction of one or more lighted fields for nighttime activities will undeniably degrade the quality of life for those living near the high school. Those who are most eager to construct one or more lighted athletic fields at Methacton High School have argued publicly that our elected officials should simply allow "the masses" to decide such questions. The "sports crowd" is confident, rightly or wrongly, that Worcester's residents would favor changing our lighting ordinance and it has even suggested that this question should be addressed through a public referendum, the results of which should then determine how our elected officials act. Apart from the fact that Pennsylvania law regarding local referenda is very restrictive and would not allow such a question to be placed on a ballot, they believe (because they also believe they would be on the "winning side" of this issue) that this is how the American system of government should work. More recently, as a result of neighbors dropping their absolute opposition to lighted fields, and following many months of negotiations to reach a consensus about how lighted fields should be used in a way that minimizes problems for neighbors, the "sports crowd" has further asserted that a small group of neighbors (it is actually a pretty large group) should not even have the right to contribute their thoughts to the new lighting ordinance and any possible use restrictions that would be the subject of a conditional use hearing in the future to allow construction of one or more lighted fields based on the new ordinance. In fact, ignoring minority (or even individual) views by allowing "the masses" to control our government's actions is a fundamentally un-american view of how our system of government is supposed to work. Our Founding Fathers were very suspicious of a "pure" democracy in which the majority controls all decisions, and they were fearful of any form of government in which a majority could trample the rights of a minority. Most of these founding fathers believed that the "tyranny of the majority" (a topic which the 19 th century French historian Alexis de Tocqueville discussed in detail in his famous book, Democracy in America) was fundamentally no different from the tyranny of an absolute monarchy specifically the form of government they wished to avoid. Other 19 th century writers expressed the same distrust of rule by "the masses." The British writer, politician, and historian Lord Acton was suspicious not just of the process, but also of the belief that allowing pure majority rule was even a fair expression of the will of the people. In his The History of Freedom in Antiquity (1877) Acton wrote:: "The one pervading evil of democracy is the tyranny of the majority, or rather of that party, not always the majority, that succeeds, by force or fraud, in carrying elections."

2 Many political philosophers have objected to the idea that individual rights should be subject to public vote, and have asserted that the proper role of governments is protect minorities (including individuals) from oppression by majorities. The British philosopher and economist John Stuart Mill wrote in his 1860 essay On Liberty: "The object of this Essay is to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control, whether the means used be physical force in the form of legal penalties, or the moral coercion of public opinion. That principle is, that the sole end for which mankind are warranted, individually or collectively in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinions of others, to do so would be wise, or even right. These are good reasons for remonstrating with him, or reasoning with him, or persuading him, or entreating him, but not for compelling him, or visiting him with any evil, in case he do otherwise. To justify that, the conduct from which it is desired to deter him must be calculated to produce evil to someone else. The only part of the conduct of any one, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign." This problem was addressed by James Madison in the famous Federalist Papers, #10, in which he referred to "the violence of majority faction." Madison's "faction" is equivalent to what we would today call a "special interest group" which may be a majority or minority, in Madison's own definition, "a number of citizens, whether amounting to a minority or majority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens or to the permanent and aggregate interests of the community." Madison considers the problem of "factions" to be not just a possible problem with pure democracy, but an inevitable one "The latent causes of faction are thus sown in the nature of man." which cannot be eliminated but which needs to be controlled: "There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects. There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests. It could never be more truly said than of the first remedy, that it was worse than the disease... The second expedient is as impracticable as the first would be unwise. As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The

3 protection of these faculties is the first object of government." (emphasis added) Madison believed the right of protection against majority rule flows from "rights of property." It is clear in context that he is thinking not just of protection against the literal taking of physical property, but also of what we might describe in modern terminology as "intellectual property rights" and other intangible rights including the right to enjoy one's property without interference. As Madison so elegantly wrote in March, 1792: "In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights." ( Madison is very clear that a pure democracy in which the majority determines every action is not equipped to solve the problems arising from factions: "... it may be concluded that a pure democracy... can admit of no cure for the mischiefs of faction. " Indeed, Madison and other political philosophers saw direct democracy as an actual danger to individual rights. Madison's cure for this problem is to form the United States as a Republic and not a Democracy. The difference is that in a Republic, citizens do not pass direct judgment on every individual issue that must be decided, but delegate this responsibility to elected officials who are expected to serve the common good by thinking for themselves. "The effect is... to refine and enlarge the public views [on an issue], by passing them through the medium of a chosen body of citizens, whose wisdom... will be least likely to sacrifice it to temporary or partial considerations. Under such a regulation, it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves..." In this context, it should be remembered that the "public good" does not include results which overrule the primary governmental function of protecting each individual's private property rights Madison was not naive enough to believe that forming a Republic rather than a Democracy was a perfect solution, nor that this form of government would not be subject to abuse. He viewed the Constitution not as a perfect solution, but as a "happy combination" that balances the common good against the tyranny of the majority. As a result, the word "democracy" appears nowhere in the Constitution and we "... pledge allegiance to the flag of the United States of America and the Republic for which it stands..." This fear of a pure democracy, in which a majority is always able to trample the rights of minorities and individuals, explains why we have three co-equal and counterbalancing partners in our government the executive, legislative, and judicial. It explains why we have a Bill of Rights, which enumerates rights specifically for the purpose of assuring that they cannot be overridden by any majority action. It explains why our legislative bodies have sometimes arcane rules to prevent the passage of legislation by simple majority votes. It is only relatively recently, in the 20 th century, that the distinction between a Democracy and a Republic has been blurred in the public mind. No student in a 19 th century civics class would have made this mistake! (The Pledge of Allegiance was first published in a popular children's magazine, Youth's Companion, in 1892.)

4 What does this principle of protecting the rights of all citizens have to do with Worcester's Board of Supervisors and football lights? First of all, it is not at all clear how to determine what the "the masses" want because citizens are not required to express their opinions even when there is a formal mechanism for doing so, and the overwhelming majority tend not to be involved in public discussion. As Lord Acton would have agreed, in this environment it is essentially impossible to separate the noise of loud voices on both sides of any issue from a fair determination of what "the masses" actually want. But, the problem of determining what a majority wants is secondary to the more important point: the principle of not allowing any special interest group (Madison's "factions") to cause harm to other citizens. In the football lights issue, proponents think they deserve to get what they want regardless of whether they are actually a majority and, even worse, regardless of the consequences for others. This vocal group disregards the harm they will be doing to their fellow citizens living in the neighborhoods around Methacton HS. It is not possible seriously to argue that allowing lighted athletic fields at the high school will have any other result than eroding the quality of life and property values of families already living near the high school. The "sports crowd" frankly admits that a lighted field will not be used just for "Friday night football" plus practice time. The School Board's Property Committee is clear in its desire for lighted athletic fields to be a "community resource" in which many other groups not associated with the School District's legitimate educational mission will be encouraged to maximize the use of lighted fields in order to "prove" that they represent our tax dollars well spent. Not so incidentally, it is not at all clear that that an ordinance allowing lighted fields at Methacton HS can be written in a way that would permanently prohibit other organizations, whether public or private, for-profit or non-profit, or even individuals, from installing equally intrusive lighting. This would, of course, degrade the quality of life and property values of many more Worcester residents, including those who think a lighted football field is a good idea because they live nowhere near Methacton HS! In addition to the "sports crowd" (a large portion of which is not even from Worcester) we continue to witness the actions of a very vocal group of individuals, including political wannabes and elected officials, trying to use the "football lights" issue to their political benefit. Their self-serving "finger in the wind" approach to decision-making does not constitute leadership and represents, at the very best, lazy government rather than good government. Our Founding Fathers, with their strongly held beliefs about the fundamental role government must play in protecting the property rights of its citizens, would be appalled by the idea of an elected government body or political wanna-be deliberately taking or supporting actions that would degrade the quality of life and property values of any of its citizens, especially when there is not even any compelling benefit to the "common good." Even if such actions really do represent the will of a majority, our Founding Fathers would call that tyranny. We agree! At the December 2012 evening Board of Supervisors meeting when the advertising of the lighting ordinance was authorized, some students from a Methacton HS government class were in attendance. Chairman Art Bustard suggested that those students would do well to read about the tyranny of the majority in Federalist Paper #10. This is excellent advice for all citizens advice which the "sports crowd" clearly has not taken.

5 On the other hand, the efforts of the School District and Worcester residents over the past several months to define common ground that allows lighted fields to be built and used in a way that meets legitimate educational needs and also minimizes negative impacts on neighbors represents our form of government at its very best. We applaud, and our Founding Fathers would also applaud, those efforts at finding consensus rather than fueling confrontation and we expect the individuals we have elected to represent our interests to respect the work that has been done by embracing the conditions that have been accepted by both parties.

The Problem of Human Nature: Self-Interest, Factions, & Collective Action

The Problem of Human Nature: Self-Interest, Factions, & Collective Action Carlos Algara calgara@ucdavis.edu October 2, 2017 Madison s Republic Model for U.S. Constitutional Design Meeting Agenda: 1 Revisiting