Chin & Wagner on Jim Crow & the Counter-Majoritarian Difficulty

Gabriel J. Chin and Randy Wagner (University of Arizona James E. Rogers College of Law) have posted The Tyranny of the Minority: Jim Crow and the Counter-Majoritarian Difficulty on SSRN. Here is the abstract:

When analyzing the consequences of and remedies for discrimination against African Americans, courts and scholars characterize African Americans as a minority. This Article shows that the traditional approach is wrong: When it mattered, when the Fourteenth and Fifteenth Amendments were enacted and for decades after, African Americans were a majority or controlling plurality in the states where most lived. African American-backed majoritarian governments controlled the South after the Civil War; while in power, they enacted strong civil rights laws and created a public education system. These policies were reversed, and segregation imposed, not because African Americans were a minority, destined to lose in the majoritarian political process, but rather through elimination of democratic politics and imposition of minority rule. African Americans and their white allies were stripped of their electoral majority through fraud, violence and illegal disenfranchisement. This Article argues that the most important harm African Americans suffered was something that the law has until now overlooked: Loss of the right to control the governments of several Southern states. This injury means that current African Americans disadvantage likely rests on a constitutional violation; Jim Crow could not have happened had democracy functioned as provided in the Constitution. Consideration of African American majority status also sheds new light on the counter-majoritarian difficulty. In reviewing measures oppressing African Americans, the Court did not have to balance majority rule against minority rights; instead, majority rule and constitutional rights both militated toward invalidation of laws passed by a minority to oppress the majority.