7 Sharp and the Tyranny of the Majority

Last night (5 May 2016) TV One on its 7 Sharp programme aired the sad story of New Plymouth mayor Andrew Judd. Mr Judd was like a number of politicians and knew nothing about Maori history and how Maori were systemically robbed of their land and effectively became aliens in what was once their own land. Unlike a number of politicians he decided to find things out for himself and he was prepared to admit he was wrong.
On being elected he was faced with Maori land claim issues and started for the first time in his life to read about Maori history and was shocked at what he read. He now describes himself as "a recovering racist". He knew he had to do what was right, not what the majority wanted. In one small way he wanted to address the low participation of Maori in local government with the by establishing of a Maori Ward, whereby of the 14 seats there would be one for a Maori representative providing a wholly Maori perspective on issues that arise within New Plymouth. Not a big change - just a start. 
New Plymouth Grey Power were up in arms, one councillor resigned in protest. A referendum was held and the citizens, the majority of whom are Pakeha, soundly rejected the idea of Maori having a dedicated voice on council. The argument being, the Maori Ward was favouritism, and an affront to democracy, if Maori want to get a voice, they can put themselves forward like every other candidate. It mattered not that Maori participation in local government is low or that New Plymouth had only one popularly elected Maori councillor on the council. With 83 percent rejecting the idea of a dedicated Maori ward position the electorate showed they had no openness to Maori issues.
In the meanwhile Mayor Judd became the target of abuse from members of the public. One day while at the supermarket with his children, a woman approached him and spat in his face. He was routinely abused, sworn at. Eventually he stopped going out in public with his family. He kept a notebook in which he recorded every time he was assaulted and or abused. The notebook is full.
He has now decided that he will not seek reelection. The personal cost being too high.
The 7 Sharp clip of his story was just over 4 minutes in length. What especially interested me were the comments of show host Mike Hosking immediately after the story. In remarks of less than a minute in length, he effectively dismissed Mr Judd's position and ignored completely the thuggish behaviour he was subjected to. Effectively what Mr Hosking said, was that personally he had no problem with Maori being on council, or even having a Maori Ward, you merely have to put these things before the electorate first. In other words - if the Pakeha majority in the electorate reject the proposition - there's an end of it.
This amounts to what is popularly known as the mandate theory of legitimacy. What the majority says goes. What they chose is right. Is this correct?
In the 1930s Hitler went to the German people and the Nazi Party became the largest party in the Reichstag. Eventually, through alliances, he was appointed chancellor. Arguably at the start at least, Hitler had a mandate. He published a manifesto - Mein Kampf, in which his anti-semitic views, were advanced as being essential to the national reconstruction of Germany. Applying Mr Hosking's reasoning Hitler's election and the policies he implemented, at least at the start, reflected his mandate. Does that therefore make it right? I do not think so. Sometimes the will of the people, can in fact become what has been called, "the Tyranny of the Majority."
I first read French political philosopher, Alexis de Tocqueville on the Tyranny of the Majority, from his book Democracy in America:

There is no power on earth so worthy of honour in itself or clothed with rights so sacred that I would admit its uncontrolled and all-predominant authority. When I see that the right and the means of absolute command are conferred on any power whatever, be it called a people or a king, an aristocracy or a democracy, a monarchy or a republic, I say there is the germ of tyranny, and I seek to live elsewhere, under other laws.

In my opinion, the main evil of the present democratic institutions of the United States does not arise, as is often asserted in Europe, from their weakness, but from their irresistible strength. I am not so much alarmed at the excessive liberty which reigns in that country as at the inadequate securities which one finds there against tyranny. an individual or a party is wronged in the United States, to whom can he apply for redress? If to public opinion, public opinion constitutes the majority; if to the legislature, it represents the majority and implicitly obeys it; if to the executive power, it is appointed by the majority and serves as a passive tool in its hands. The public force consists of the majority under arms; the jury is the majority invested with the right of hearing judicial cases; and in certain states even the judges are elected by the majority. However iniquitous or absurd the measure of which you complain, you must submit to it as well as you can.

But Tocqueville did prescribe some solutions. He hoped that those having read his prescient book would become alive to the defects of modern democracy and show great attention and careful management. Specifically, he hoped, we would strive “to preserve for the individual the little independence, force, and originality” that remains to him.
In other words, when looking at any given policy, lawmakers might look not at the benefits for their electorate, or vainly calculate poll swings as a result of the latest PR stunt or slogan – but instead look at what any given policy proposal’s long-term effect will be on securing freedom and rights. The goal being to make individuals more independent, stronger, more able to properly resist the tyranny of the majority and the constant encroachments of the administrative state. Over time, he feared, the state would take away citizens’ free will, their capacity to think and act, reducing them to “a herd of timid and industrious animals of which the government is the shepherd.” 
Given the absence of intelligent political analysis, the dumbing down of media comment and the triumph of political spin over reporting, and the apparent acceptance of the comfortable populism of the likes of Mike Hosking in support of this state of affairs; it appears that Tocqueville's cautions are coming home to roost.

Begging and the Right to Freedom of Expression

1.             Currently some right wing candidates in local body elections are advocating the criminalisation of begging. Does this make sense and will it help anything?

2.               Pursuant to section 14 BORA all persons have the right to freedom of expression, including the right to seek, receive and impart information through any media, including orally, in writing or in the form of art.

3.             As a first principle I consider that the proscription and criminalisation of begging constitutes an infraction of the fundamental human right to freedom of expression.

4.             Such restrictions violate the right to freedom of expression in two basic respects. First, the proscription of begging renders peaceful verbal or written communication unlawful. Anti-begging provisions apply whether a person adopts passive begging techniques (such as sitting or standing in one spot with a cup, a hat or a sign) or more active begging techniques (such as approaching passers-by and entreating them to donate money). In each case, it is the act of expressing a need for money, rather than the conduct associated with that expression, that is the target of anti-begging provisions.

5.           If people begging begin to directly and forcefully approach people and inhibit the movement of citizens as they walk along footpaths with aggressive demands for alms or financial assistance that can be easily controlled via bylaws. However banning the poor from seeking help from others more fortunate is overkill.

6.             Anti-begging provisions infringe the right to freedom of expression in that they proscribe the imparting (and, by extension, the receiving) of communications regarding the way in which society treats its poor and disenfranchised. In many cases, begging amounts to an expression of poverty, alienation, homelessness, dislocation and the effects of inadequate social security, public housing and public health systems.  In the US, many anti-begging provisions have been struck down or narrowed on the basis of inconsistency with the First Amendment right to freedom of expression: see, eg, Benefit v Cambridge, 424 Mass 918 (1997) per Greaney J:

We conclude that no compelling State interest has been demonstrated that would warrant punishing a beggar's peaceful communication with his or her fellow citizens in a public place. (6) As one writer on the subject has observed: "At the least, for some panhandlers, begging is a way to augment their meager sources. For a few, it may be their only source of income. Panhandling is therefore close to the center of the personal liberty of some people in contemporary American society." Munzer, Response to Ellickson on "Chronic Misconduct" in Urban Spaces: Of Panhandlers, Bench Squatters, and Day Laborers, 32 Harv. C.R.-C.L. L. Rev. 1, 11 (1997). The statute intrudes not only on the right of free communication, but it also implicates and suppresses an even broader right -- the right to engage fellow human beings with the hope of receiving aid and compassion. The streets and public areas are quintessential public forums, not because they are a particularly convenient platform for expression, but because they are the necessary, essential public spaces that connect our individual private spaces, from which we legitimately may exclude others and likewise be excluded, but from which we almost all must inevitably emerge from time to time. If such a basic transaction as peacefully requesting or giving casual help to the needy may be forbidden in all such places, then we may belong to the government that regulates us and not the other way around. (7) [emphasis added]

7.             The criminalisation of begging denies to persons who beg a form of expression that may be necessary for survival. It also denies the truly poor the right to impart, and society the right to receive, information regarding poverty, inequality, structural inadequacies and the need for urgent social reform. By silencing people who beg, anti-begging provisions stifle debate about social policies regarding the poor.