Tyranny of the majority

This books essay was published by the FT on March 1st. The staring match between judges and the White House, and the ongoing purge of non-believers by Trump's Taliban, persuade me to republish it here

As the opening weeks of the second Trump presidency have unfolded, it has been hard to put a label on the events in Washington, DC. While supporters might term the blizzard of executive orders emanating from the White House as the radical implementation of promises made to “fix” things deemed to be broken, opponents see it as a coup d’état.

An old-style coup implies arrests and control over the media, however, and none of that has occurred, at least not yet. What we are witnessing is undoubtedly a sudden seizure of power that has gone well beyond previous presidents’ use of executive orders, but one with an unusual twist: it is occurring with the active compliance of those parts of the US Constitution, namely Congress and the Supreme Court, from which power is being taken.

To help us understand what is going on, we need people who can separate the signal from the noise, the long-term direction from short-term particularities. One of the finest examples is Britain’s Jonathan Sumption, whose career has been an unusual combination of medieval historian, barrister, Supreme Court judge, member of the House of Lords, and now admirably clear writer on politics and the law.

As he writes in his new book, “The Challenges of Democracy and the Rule of Law”, political philosophers of the past, whether the 18^th century “founding fathers” of the US Constitution such as James Madison, 19^thcentury British classical liberals such as John Stuart Mill or ancient gurus such as Aristotle, were well aware that democracy is fragile. They all warned about just what is emerging: a tyranny of the majority.

Checks and balances exist in constitutions to prevent drastic changes being made at the whim of a momentary electoral majority or by anyone exploiting such a majority to concentrate power in their hands. The deep polarisation of many liberal democracies has created exactly those dangers. America’s electoral system can be described as “winner takes all”, but this was not supposed to mean “winner does whatever he pleases”.

That is precisely what the winners are telling us that they are doing. On February 10^th Vice-President J.D. Vance wrote on X, Elon Musk’s social media platform which has become in effect an official organ of the US government, that “judges aren’t allowed to control the executive’s legitimate power”. As well as casting aside Article III of the Constitution, which defines the role of the judiciary, this carefully worded claim implied that the executive itself can rule on the legitimacy of its own acts. Winning the 2024 election is held to have made all acts legitimate, a belief built on a theory of presidential power that last year was given credence by the Supreme Court itself.

A few days later, President Donald Trump wrote on his own platform, with the Orwellian name of Truth Social, that “He who saves his country does not violate any law”. He was quoting a past dictator, Napoleon, but also making it clear that he as president can decide what “saving” the country requires, and no law can stand in his way.*

No wonder that the following week, when intervening to abolish New York City’s congestion pricing scheme, he went even further by writing, in capital letters lest his point be overlooked, “LONG LIVE THE KING”. New York State’s governor, Kathy Hochul, responded along more traditional constitutional lines: “We’ll see you in court.”

With his Republican Party controlling Congress and having shown no desire to impede Trump’s Cabinet nominations or his taking of the axe to federal agencies supposedly under their own control, the courts are indeed the only constitutional obstacle the White House faces. The Defense Secretary, Pete Hegseth, acknowledged this when he fired all the Judge Advocates General, the military’s top lawyers, telling his former employer, Fox News, that “they don’t exist to be roadblocks to anything that happens in their spots”.

Where could this lead? Supporters would say that it could lead to all sorts of things being done that they think need to be done, and that have been prevented by the dysfunctional character of the Federal government, a character that may have been (as is often said by admirers of the US Constitution’s founding fathers) deliberate but which in recent decades has gone too far.

It might, of course. But at what cost, what if it doesn’t, and what next? Jonathan Sumption’s “The Challenges to Democracy” is a collection of lectures and essays written over the past five years but updated for the events of the past year. It would be hard to find a better primer on what ails the transatlantic democracies and how to think about these questions.

Sumption could be described as conservative, liberal or libertarian, according to taste. He is a defender of elites and representative government, saying they reflect an “aristocracy of knowledge”. Yet the book’s final two essays, on freedom of speech, might even pass muster with J.D. Vance, for respectively they demolish efforts in Britain to “decolonialise” history and to silence “gender-critical” opinion, albeit without extrapolating those critiques to any broad condemnation of Britain’s democracy.

What Sumption will have no truck with is any thought of allowing ends to justify means.

He argues forcefully against the “common delusion” that “strongmen get things done…Historical experience should warn us against this idea, which is almost always wrong…The concentration of power…promotes loyalty at the expense of wisdom, flattery at the expense of objective advice, and self-interest at the expense of the public interest.” Sound familiar?

When Trump’s attempt on January 6^th 2021 to overturn the 2020 election result by violent means failed, this generated self-congratulation about the strength of America’s constitutional guardrails. Sumption is not convinced. In a powerful essay entitled “The President’s Crimes”, this sharp legal mind expresses well-mannered outrage at the decision by the Supreme Court in Trump v United States in July 2024, a case prompted by Trump’s 2021 actions, to declare a president to be immune from prosecution for criminal acts committed in the course of his official functions. That case has now laid the path for his Napoleonic claim to be above the law.

As Sumption writes, the Supreme Court decision “is merely the most recent and extreme symptom of a profound constitutional disorder” in the United States. So, can any guardrails be relied upon? The courts are still trying to stick up for the law, but ultimately their success will depend on whether the Supreme Court proves willing to expand upon its fateful decision last year by explaining how the interpretation of “official acts” is to be reconciled with a president’s constitutional duty to uphold the law.

Ultimately, our faith can only rest on America’s still open society and political culture, assuming these can be preserved. Much can be done by this “king”, but as long as society remains open there will be many ways to criticise and oppose his acts, ways that can have an impact on how Republican congressmen view their prospects in mid-term elections in 2026 and, as in the first Trump term, on how political appointees and business supporters calculate their interests, as and when the mood turns.

Writing about a British prime minister who in 2019-22 also thought of himself as “king”, purged his opponents, and broke rules and conventions at will, Sumption draws some reassurance from the fact that Boris Johnson was brought down by the mass resignation of his own government. He would be too scrupulous, at this stage, to transport that reassurance across the Atlantic to America’s very different governing system. But it is worth keeping in mind.

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* The list of further developments since March 1st is too long to enumerate here, including the purge of a series of respected institutions either by closing them down (eg the Office of Net Assessment in the Pentagon) or by replacing boards and officers with loyalists. However, a confrontation between Judge James Boasberg, chief judge of the Federal District Court of the District of Columbia, and Trump is particularly notable. This has arisen over Trump’s use of the 1798 Alien Enemies Act to deport immigrants he claims are criminals and terrorists, and Judge Boasberg’s order to suspend deportation flights. The New York Times story on this can be found here. Trump responded on Truth Social by asserting that his electoral mandate gave him a greater right to decide about the law and this case than an unelected judge “appointed by Barack Hussein Obama” (a slur he frequently uses about America’s 44th president to imply he is a Muslim and not a real American), and asserted that Judge Boasberg should be impeached. The good news is that the chief justice of the US Supreme Court, John Roberts, immediately put out a statement rebuking Trump for his attack on the judiciary and in particular for the idea of using impeachment to remove judges. Nonetheless, the stand-off continues, in this and many other cases.