Government tyranny in a representative, constitutional democracy and federalist republic

For other parts of this series, click here

Any oppressive action taken by any government could hypothetically be called “tyranny.” But in the United States, the ability of both the national and state governments to oppress people is ostensibly limited by the Constitution of the United States and, within their boundaries, by each state’s constitution. Given the unusual government structure, what does tyranny look like in the United States?

Let’s start this review by looking at the governing structure of the US itself.

What is the US government?

What type of government is the United States national government? Put into as few words as possible, the national government of the US is a representative, constitutional democracy overseeing a federalist republic. But what do those few words actually mean?

A representative democracy is one where voters select people to represent their interests in the national government. At the US national level, those are our Representatives and Senators. We also vote for representatives at the state and local levels to run our state legislatures, enforce our state laws, pass local ordinances, control the direction of our schools, run our cities and towns, and so on. This is opposed to a direct democracy, where every citizen votes on every important decision facing the community/state/country.

A constitutional democracy is one where one or more governing documents limits the authority of the majority to impose its will upon the minority by way of the government. Certain rights and liberties are granted to bodies other than the government (usually the citizenry, sometimes lower levels of government, sometimes non-governmental bodies like businesses, churches, or charities). When the majority asks the government to implement laws or regulations that potentially infringe upon those rights or liberties, a different body of the government (in the US it’s our federal court system headed by the Supreme Court of the United States) created by the constitution specifically to adjudicate such matters affirms or rejects the potential infringement.

A federalism is a governing structure where governing power is shared between the head of the national government and various regional governments. In the US the relationship between the national government and the state governments is defined by the US Constitution where state governments have exclusive authority over most issues within their borders and the national government has exclusive authority over most issues relating to international and inter-state relations.

And a republic is a government where the nation itself is considered the property of the citizens of the nation as opposed to the property of the leaders or leader of the nation. Ultimate political power rests in the hands of the people, and property not owned by private citizens or private businesses are considered “public” lands and public goods that are held and managed in trust by the government for the benefit of all citizens. The property need not be actual land or buildings, but can be things like wireless spectrum, major waterways and lakes, and the air.

So if we can summarize, the United States national government is limited by the Constitution in order to protect the liberties of the minority from infringement by the majority, is run by representatives selected by voting citizens to be their voice in the Congress, manages the national properties in trust for everyone living in the United States, and shares governing power with co-equal state governments.

This means that at its most basic, the US national government derives its authority from the will of the governed, it is run by citizens selected by citizens, and it is run on behalf of those very same citizens. It is, as Abraham Lincoln said in his Gettysburg Address, “of the people, by the people, for the people.” Furthermore, the US national government is limited in its power by the Constitution, and the people, through the process of impeachment and elections, have the authority and duty to remove members of their government if they so deem it necessary.

The people also have the authority to change the language of the Constitution if enough of them deem that necessary.

What does tyranny look like in a constitutional representative democracy and federalist republic?

tyranny (source: Merriam-Webster)

1. oppressive power, especially oppressive power exerted by the government.

2a. a government in which absolute power is vested in a single ruler, especially one characteristic of an ancient Greek city state

2b. the office, authority, and administration of a tyrant

3. a rigorous condition imposed by some outside agency or force

4. an oppressive, harsh, or unjust act : a tyrannical act

Generally speaking, when Ameiricans talk of tyranny, they’re thinking in terms of #1 above – the government exerting oppressive power. But what does government oppression look like in the context of what we know about the US government? Let’s ask ourselves four questions to help us understand this.

1. At what point does a representative democracy slip into tyranny?
2. At what point does a constitutional democracy slip into tyranny?
3. At what point does a federalist government slip into tyranny?
4. At what point does a republic slip into tyranny?

What tyranny looks like in a representative democracy

The first question may be the easiest to answer – a representative democracy slips into tyranny when the government stops doing the things that the people want it to do, and that the elected officials were elected to make it do. So in a representative democracy, if the majority of voters want the government to ensure clean water and safe food, then it’s not tyranny if the government does so even over the opposition of others who don’t want the government to provide such services. Only in cases where the majority desires a service (say, clean water) that the government refuses to provide does a representative democracy approach tyranny.

Even then, refusing to provide a demanded service may not be tyranny depending on the size of the majority demanding the service or the structure of the government. For example, it’s difficult to argue that a majority of 51% demanding clean water is being oppressed by a government that represents the 49%. On the other hand, it’s easy to argue that a majority of 90% being overruled by 10% would qualify as oppression. The structure of the government can play a part as well, such as how the Senate and the House of Representatives are not instantly responsive to public whims, and intentionally so.

There’s a third case where a representative democratic government failing to the will of the majority wouldn’t qualify as tyranny – when the government is limited by a constitution, as in the case of the United States.

What tyranny looks like in a constitutional democracy

In the case of a constitutional democracy, it’s also clear when the government slips into tyranny – when it exceeds the powers granted to it by its constitution. For example, if a constitution said that the people cannot be taxed at over 5%, then a 10% tax would be tyranny. Similarly, if a constitution said that every individual has the right to own and carry a firearm, bans on ownership of firearms would be tyranny. The challenge is that most constitutions are worded vaguely, often on purpose, and they don’t tend to provide sharp lines between acceptable and unacceptable behaviors. As a result, constitutional democracies need an adjudication body and process like the Supreme Court of the United States and its review of laws and actions.

What that tends to mean is that, in constitutional democracies, tyranny is somewhat in the eye of the beholder. So there will always be some individuals who think something is tyrannical when a large majority disagrees, and vice-versa. It also tends to mean that the government has a lot of flexibility to engage in tyrannical actions until the adjudication body steps in and stops them.

But constitutional democracies always have a method to update the constitution in the event that a) an overwhelming majority of the people demand new limitations on the government or b) an overwhelming majority of the people demand new limitations on the people by removing or modifying existing limitations on the government. And once the constitution has been updated, the threshold for tyranny would naturally move to wherever the new limit is set.

What tyranny looks like in a federalism

Federalist systems can slip into tyranny when one co-equal government imposes its authority over that of another. This is most likely to happen between a national government and a regional government, but it could happen between two regional governments as well. The problem is that most examples of this don’t qualify as “oppressive” and thus aren’t actually tyrannical.

It is probably easiest in this case to use specific examples from the US. Per the US Constitution, only the federal government has the legal authority to print currency, so any state that tried to print its own currency would be trying to take away one of the authorities of the federal government. But since it’s not oppressive, it’s not tyrannical. Similarly, if the states tried to make their own trade policies or sign their own international treaties, that would be an attempt to claim the authority of the federal government, but again, it wouldn’t be oppressive and thus not tyranny.

In 1984, the federal government raised the federal drinking age to 21 years old, but it didn’t force all of the states to change their drinking ages. Instead, the federal government simply said “you’ll get no federal highway dollars if you don’t raise your drinking age.” States were welcome to leave their drinking ages at whatever they wanted, they just had to forego the money that was associated with the age. Today, every state has a drinking age of 21 (with a few exceptions in certain states for religious observances or in the presence of a parent, etc.). This could qualify as oppressive and thus a form of de facto tyranny, but since the federal government has the authority to disburse its dollars equally based on fairly applied metrics and it didn’t try to usurp the states’ legal powers directly, it’s within the legal authority granted to the federal government by the US Constitution. And therefore it’s not tyranny.

With respect to state-vs-state tyranny, there are a few possible examples of situations that could qualify, but probably don’t. For example, after the state of Colorado legalized marijuana for recreational use, Nebraska and Oklahoma sued in federal court to have the law overturned. Their rationale was that Colorado’s legal marijuana was increasing drug crime in their states, and therefore the Colorado law should be overturned. It’s a fair question, however, whether the supposed oppression in this case would be Colorado over Nebraska and Oklahoma due to their alleged increase in drug crime, or from Nebraska and Oklahoma trying to impose their laws on Colorado. Last I heard the case was still winding through federal court after the Supreme Court refused to fast-track the case.

What tyranny looks like in a republic

Finally, let’s look at how a republic can slip into tyranny. First, a republic could slide into tyranny if the leaders of the government claim power for their own and start to ignore the will of the governed. However, this is essentially the same thing as tyranny in a representative democracy, so there’s no reason to repeat the conclusions here. Second, the government could become tyrannical if either stops treating and managing the country and national property as if it belongs to the people or if the government starts treating private property as if it belongs to the government instead of the individual.

Most national property is literally land, but not all of it. For example, navigable waterways qualify as national property, and so it’s the government’s job to mediate between all the different groups that want to use the waterways. In this case means setting the rules for safe speeds, defining what cargos can be safely transported and how they should be transported, standardizing hazard markers, and keeping channels deep enough and wide enough for shipping to pass. But imagine if the government always prioritized passage through locks to a single company’s barges, rather than on a first-come, first-served basis. In this case, the government is giving preferential treatment to that company and as such the government’s actions could be considered oppressive to other companies, and thus potentially tyrannical. It could also be a case that the company in question carries more US government property, or that the supervisor of the locks is corrupt, rather than a function of the government itself. Other examples from actual prioritizing mineral exploitation over public or indigenous access to lands and the end of net neutrality.

There are always situations where private property needs to be “taken” by the federal government for a legitimate government purpose, such as the demolition of homes to make room for an interstate highways. Such events are inherently oppressive, as people are forced to sell their property. But so long as the affected people are reimbursed a fair value for their homes, the US Constitution (and others based on it) permits such taking of property. There are other cases where the government takes property for less-than-legitimate public purposes, such as when a run-down housing development is seized and then the land is sold off to another private developer that is expected to provide the government with higher tax revenues. In the US, such takings are considered Constitutional at the federal level (and vary at the state level), but nonetheless they could reasonably be considered tyranny.

Some examples of tyranny in the United States

As a representative, constitutional democracy and a federalist republic, there are only a few types of tyranny that can occur in the US:

1. Implementing laws and policies that are clearly beyond the authority of the government just because a majority demands them.
2. Implementing laws and policies that are within the authority of the government but that are opposed by a large majority.
3. Implementing laws and policies that are not clearly beyond the authority of the government but are instead in a gray area that has been ruled by the Supreme Court (state or federal) as beyond the authority of the government.
4. Direct interference with the laws of one government by another government except in the case of the federal government interfering in state laws in ways that are within the authority of the federal government (such as ensuring the civil rights and liberties of all citizens).
5. If the government corruptly manages public property to the benefit of one person or interest without weighing the benefits or costs to others.
6. If the government takes personal property outside the authority of the state and national constitutions.

So let’s look at a few examples from recent US history.

In 1992, the state of Colorado passed Amendment 2, which prevented the state and local governments from making homosexuals and bisexuals a protected class like ethnic minorities and the disabled. The state of Colorado was sued and, in 1996, the Supreme Court ruled that Amendment 2 violated the S Constitution’s Equal Protection clause. In this case, Amendment 2 was tyrannical even though it was approved 53% to 47% by the people of Colorado because it met the criteria of #3 above – it was in a gray area that was later ruled to be unConstitutional. And the actions of the Federal government to overturn Amendment 2 were not tyrannical according to #4 above because the federal government was acting within its authority.

In April, 2020, the Environmental Protection Agency stopped considering “collateral benefits” (reductions in smog and other pollutants) of reducing mercury pollution from burning coal. The direct mercury reduction officially remains unchanged, but without the collateral benefits included, the economic cost of reducing mercury pollution drops significantly and below the threshold that would require utilities to install mercury scrubbers. The original rule [Note: The EPA removed the text of the 2011 rule from its official website since 2016], put in place in 2011 in order to protect children, pregnant women, and other vulnerable populations, has essentially been gutted after intense lobbying of the Trump Administration by coal company CEOs. This is an example of government tyranny per #5 above because a well-funded tiny minority has forced nationwide changes in policy that result in the corrupt management of national property (clean air) for the benefit of the few against the benefit of the people at large. Federal lawsuits over this change are expected.

In 2008, the Supreme Court ruled in District of Columbia vs. Heller that there was an individual right to bear arms for defense in one’s home. The court majority found that the DC law banning handguns and requiring trigger locks was unConstitutional, essentially saying that the law was tyrannical. And the same court majority extended this ruling from federal districts to the states in 2010. However, the same majority opinion explicitly said that limits on firearm ownership were Constitutional under certain conditions. As such, so long as the government does not exceed those conditions, gun controls are legal and thus not government tyranny according to #3 above. But even so, it’s important to note that the ruling that the Second Amendment guaranteed an individual right to bear arms overturned 200+ years of precedent and did so with a 5-4 majority. As such, it is entirely possible that DC vs. Heller could itself be overturned in the future.

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Any oppressive action taken by any government could hypothetically be called “tyranny.” But there are lots of actions that only a government can take that are not tyrannical. For example, it’s not tyranny against criminals when police enforce laws and arrest someone. It’s also not tyranny against companies when the government enforces workplace safety regulations that keep workers from being forced to work with carcinogens without proper protective equipment. Same with collecting taxes, requiring permits for large gatherings in common spaces, drafting people to fight a war, and, at the state level, requiring that people stay at home during a pandemic and wear masks if they must go out in public.

In the US, the government is a representative, constitutional democracy and a federalist republic. This structure was created with the express purpose of reducing the risk of tyranny at the national level, and as such it reserves a lot of powers for the states. But the Constitution isn’t always clear, and the opinions of its authors were not always unified on what a given passage meant at the time it was written. As such, there are a lot of gray areas that require interpretation by the Supreme Court to make them useful for lawmaking. And with the passage of time, shifts in culture have necessarily resulted in changes to how the Supreme Court interprets the Constitution. And there’s always the amendment process that can totally upend centuries of careful precedent.

The Second Amendment in its entirety is one of those Constitutional gray areas where tyranny is not so easily defined, even by the Supreme Court. In the concluding essay to this series, we’ll assess gun control laws per the types of tyranny above and ask whether a national law on gun control would necessarily be tyrannical.

For other parts of this series, click here