Opponents of the proposed cultural center and mosque in lower Manhattan are pointing to polling showing that a majority of New Yorkers oppose the project.  A majority of New Yorkers can’t be biased, they argue.  That, of course, is an assertion at odds with history.

At various times in American history, majorities supported racial segregation, laws against interracial marriage, and the internment of Japanese-Americans.  The majority isn’t always right–and, in our constitutional democracy, the majority doesn’t always rule.  Those of us who’d like to see a functional Senate have been reminded of this all the time, but the cloture rule is just one example (and not one required by the Constitution).  Presidents can be elected by a minority of the population (as long as they win enough electoral votes), the U.S. Senate itself provides disproportionate representation to small states like Wyoming and Montana, which get the same 2 senators as large states like New York and California.  Amending the Constitution requires supermajorities (thankfully for fans of the 14th Amendment).

We live in a constitutional democracy, where, even if a majority thinks certain groups or individuals should be denied fundamental rights, the majority does not carry the day unless it can amend the Constitution.  That’s why we have courts, at least in theory-sometimes, as with the mass detention of Japanese-Americans on the west coast (as well as smaller numbers of German and Italian-Americans) during World War Two, the system breaks down.  . . .

A majority of Americans may want to stop construction of mosques (not just in New York–of course, the real story is that this is happening across the country), a majority may want to clamp down on unpopular speech, or unpopular religions.  Our system is supposed to prevent this from happening: if it fails us now, what’s the next step?  As Mayor Bloomberg asked, how far should the mosque-free zone extend?

I’d also ask, where will anti-Muslim rhetoric take us?  As Justice Jackson said in the Barnette case in 1943, we must "avoid these ends"–the dangerous consequences of punishing those who seem different, scary–by avoiding these beginnings.  Here’s hoping sanity prevails and demagogues like Newt Gingrich, Sarah Palin, and Rudy Giuliani stop trying to divide Americans.  And here’s to leaders who are willing to challenge the majority when it is wrong.

Chris Edelson

Chris Edelson

Chris is a lawyer and professor at American University who writes frequently about current political and media issues. His writing has also been published in The Philadelphia Inquirer, Metroland (Albany, NY), and at commondreams.org