I’ll have a piece going up tomorrow [UPDATE: it’s here] on some really bad defenses of the filibuster tomorrow. Since I didn’t have space for this particular one, let’s turn to Eric Posner, who as part of a a defense of the filibuster makes a very unfortunate argument:
To provide an extreme example, under a pure system of majority rule 51 percent of the population could pass a law that transferred the wealth of 49 percent of the population to the majority. If at the next election, the other side managed to win, it could expropriate the wealth back. The resulting instability, as different groups took turns expropriating each other’s wealth, would impoverish the country over time. If one group never took a turn winning, then the outcome would be inequitable as well as bad for the public at large. If all of this sounds too implausible to be of concern to you, then remember Jim Crow in the South, and the many decades disenfranchised African-Americans spent as electoral losers.
First of all, the Jim Crow argument misapprehends the general democratic presumption of majority rule. When we say “majority rule,” we mean that the majority is generally entitled to make law if it wins a fair election and follows agreed-upon procedures. Jim Crow and its mass disenfranchisement, to put it mildly, are not “majority rule” in any democratic sense. And it’s worse than that, the filibuster of course was a crucial tool used by segregationists to protect their anti-democratic systems from national majorities.
It’s true, of course, that democracy does not just mean majority rule, and countermajoritarian rules are not always unjustifiable. As Posner does go on to concede, the real argument against the filibuster is that the United States already has plenty of countermajoritarian mechanisms, and in most cases therefore the filibuster can’t be defended. But if one is reduced to citing Jim Crow in defense of the filibuster, it’s not nearly as close a question as Posner makes it out to be.