Supreme Court

Courts Should Check 'Majority Rule'

Democrats and Republicans agree on that point, although they disagree about what it means in practice.


Making its case against the reelection of Donald Trump this week, The New York Times complains that the president has been "filling the benches of the federal judiciary with young, conservative lawyers as a firewall against majority rule." While it is hardly surprising that the Times would be dismayed by the appointment of conservative judges and justices, the suggestion that courts are acting improperly when they check the power of "majority rule" is puzzling.

Courts are supposed to frustrate the will of the majority when it violates the Constitution. Americans on the left and right expect courts to do that, although they disagree about which constitutional constraints judges should be enforcing.

In the same package of anti-Trump essays, the Times worries about the fate of Roe v. Wade, the 1973 decision in which the Supreme Court said broad abortion bans violate the 14th Amendment's Due Process Clause. Roe and its progeny clearly impose restrictions on majority rule, telling democratically elected legislatures how far they can go in regulating abortion.

Most conservatives—probably including Amy Coney Barrett, the originalist Trump picked to replace Justice Ruth Bader Ginsburg—believe Roe was wrongly decided, since it relied on the dubious concept of "substantive due process" to discover a right to abortion. Ginsburg herself questioned the Court's reasoning, saying an argument based on the 14th Amendment's guarantee of equal protection would have provided a firmer foundation.

But if you think the Constitution, under whatever provision, imposes limits on abortion laws, there is no escaping the conclusion that it requires courts to override some decisions by legislative majorities, even when those decisions are supported by most citizens in a particular state. The same is true of the Court's 2015 ruling in Obergefell v. Hodges, another precedent that progressives worry could be threatened by Barrett's appointment.

In Obergefell, a five-justice majority concluded that both the Due Process Clause and the Equal Protection Clause require states to recognize same-sex marriages. No matter which argument you prefer, the conclusion that the Constitution forbids state discrimination against same-sex couples necessarily means the issue cannot simply be decided by a popular or legislative vote.

While Democrats overwhelmingly support abortion and marriage rights, they are notably less enthusiastic about judicial intervention in other areas. When it comes to gun control and campaign finance regulation, for example, most Democrats seem to think majorities should be free to do pretty much whatever they want.

In the landmark 2008 case District of Columbia v. Heller, the four dissenters, all but one of whom were nominated by Democrats, took the view that the right to "keep and bear arms" imposes no limits at all on gun control laws. The Democratic Party's platform, which this year talks a lot about gun control but does not even pay lip service to the Second Amendment, likewise seems to view it as a nullity.

In the 2010 case Citizens United v. FEC, the Court overturned restrictions on the political speech of corporations, including an ideologically diverse array of nonprofit advocacy groups. The four dissenters—again, all but one Democratic appointees—were unfazed by the facts of the case, which involved the government's threat to fine a group for airing a movie critical of Hillary Clinton close to an election.

Democratic presidential nominee Joe Biden, who wants not only to "end Citizens United" but to "prevent outside spending from distorting the election process," seems to take an even narrower view of what Americans should be allowed to say about politicians. But at least he recognizes that a constitutional amendment would be necessary to authorize such sweeping censorship.

During Barrett's confirmation hearing last week, Democrats warned that Republican Supreme Court nominees threaten constitutional rights. Sen. Ted Cruz (R–Texas) had a similar complaint about Democratic nominees.

While Democrats and Republicans agree that majority rule does not trump the Constitution, they disagree about what that means in practice. Whichever firewall you favor, it is apt to have some holes.

© Copyright 2020 by Creators Syndicate Inc.

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  1. The left hates the constitution, and only uses it to manipulate me, and I think that is swell based on my 1950s middle class upbringing. – Joe Biden

    1. Despite my vote against gay marriage, my vote for two Iraq wars, and my vote for the Patriot Act. I was under someone elses control – Joe Biden

      1. Reminder to everyone… Obama def sec robert gates said biden has been the wrong side of every foreign decision since he has been in the senate.

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          1. It’s Trump vs. Harris

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          3. It’s Trump vs a ticket with more baggage than a fully booked cruise ship. What the pluperfect hell were the Democrats thinking?

            The Democrat power structure in Washington desperately wants to return to the status quo ante, having completely missed the message that a great many voters are sick to the teeth of it. To that end they have tried a coup against a duly elected President, wasted copious amounts of time and energy on an attempt at Impeachment founded on thin air that was bound to fail, and run cover for a mob of modern Brownshirts.

            I hope the Democrat rank and file can recapture their Party soon. I don’t have much hope, though.

    2. Scranton didn’t need no Constitution to tell us that hard work and the American dream trumps Wall Street and Park Avenue.

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  2. The old two wolves and a sheep. People just don’t get it till their the one on the menu.

    1. Well now “that will never happen here.”

    2. With a nice mint sauce.

  3. Was it Oliver Wendell Holmes who said that it was not the court’s duty to protect voters from their decisions? And Bork who said the majority have the right to pass their legislation simply because they are the majority?

    Couple of losers, and I have no doubt there have been many many others.

    1. When a judge goes beyond [his proper function] and reads entirely new values into the Constitution, values the framers and ratifiers did not put there, he deprives the people of their liberty. That liberty, which the Constitution clearly envisions, is the liberty of the people to set their own social agenda through the process of democracy. – Bork

    2. The notion that Congress can change the meaning given a constitutional provision by the Court is subversive of the function of judicial review; and it is not the less so because the Court promises to allow it only when the Constitution is moved to the left.
      – Bork

      Not seeing your attributed quote. He seems to place emphasis on constitutional rules, not majority legislation.

      1. Eh, I didn’t exactly supply a quote to look for. I have a memory of him saying something to that effect, something which reminded me of the other justice who I think was OWH, that’s all.

        1. Roberts specifically stated as much. Something to the effect of “it’s not the court’s role to save people from their political choices.”

    3. Whatever. It was people who put the Constitution there too. People all the way down.

  4. It’s hard enough to convince Millennials that their feelings shouldn’t matter. We’re talking about a whole generation of people who think that free speech isn’t protected if it hurts someone’s feelings.

    If you want to convince them that their informed opinions shouldn’t matter when it comes to people’s rights, you better start with trying to teach them the difference between informed opinions and feelings.

    And, no, it isn’t that one can justify violating people’s rights and the other can’t.

    P.S. Imaging that respect for other people’s rights is legitimately subject to our personal opinions is a moral failure. The obligation to respect the agency of others is the foundation of morality. There isn’t any way to get traction on people who can’t tell the difference between morality and being fashionable.

    1. Shhhhh….. People might actually hear a libertarian argument. We can’t have that ’round these parts.

    2. These days I am more concerned about Boomers stubborn attachment to their feelings than Millennials. I had a conversation with one recently who made a case against the virus lockdowns based on the freedom to travel and freedom of association, which seemed fine, until he started to assert that these same freedoms did not apply to restrictions on immigration because “well, that’s just my opinion.”

      Boomers who get attached to cable news are worse than Millennials attached to social media. At least with the latter there is a chance that one can break out of the groupthink.

      1. Interstate travel is different than INTERNATIONAL travel.

        1. Inter-county travel is different from inter-state travel.

          Inter-city travel is different from inter-county travel.

          Inter-neighborhood travel is different from inter-city travel.

          Inter-house travel is different from inter-neighborhood travel.

          Lines on a map. Words in a law.

          1. This is the ignorance i am talking about below. It requires complete denial of the current state of society and the negative externalities imposed through tax shifts to those on welfare.

            Ignoring reality just makes you look dumb. We don’t live in an ideal state.

            1. But we are trying to work towards an ideal state.

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      2. “these same freedoms did not apply to restrictions on immigration because “well, that’s what the constitution says”


        1. Really? Which Constitution are you reading over there, Cuba’s?

          1. Your open borders with a disregard to costs is just an example of feelings over thought.

            1. Open borders is not an example of feelings over thought. It is an acknowledgement that no cost takes priority over inalienable rights.

              I suppose you would also disagree with him on the virus lockdowns, and perhaps on believe that gun control and censorship are acceptable policies, too? Since all rights do come with costs.

              1. The closed borders crowd wants to overrule my right to hire someone from another country, or to sell or rent my house to someone from another country, on what moral basis I’m not sure. They talk about costs (welfare and the like) that I had no part in imposing on them, just like progressives talk about socialized medical costs of those who don’t have insurance, or who eat too much salty food, or drink too many sugary drinks. Just end the socialism and the problem of costs goes away.

                1. Sure, ethically you are correct, but the order of operations matters.

                  Get rid of the bullshit *first*, annihilate 90% of the government, make sure it’s really clear that the new arrivals don’t get to vote in new bullshit, and I have no problem at all with the open borders concept.

                  As it stands now, we have enough of a problem with the people who are *already* here wanting to make the government master of every second of the day. We can’t survive a tripling of our population under the current regime. Not and retain anything close to the library that America is supposed to have.

                  1. You hit the nail on the head. The order matters in making it happen. But the goal of open borders is not itself the absurdity that some here would have it be. It just doesn’t work well with the welfare state (etc.) that we currently have.

                2. the only reason why the politicians (of both parties) want undocumented immigration is to take advantage of them. Cheap labor is the main reason. You don’t have to pay workers comp or unemployment on undocumented immigrants. They don’t exist, at least not on paper. Give them a social security number and then i don’t have a problem with it.

            2. No, it’s principle over practicality. Which you can argue is foolish, but it’s not appeal to emotion or irrational if your basic moral assumption is that individual liberty trumps everything else.

          2. Really? Which Constitution are you reading over there???????
            “freedom to travel and freedom of association” — Alright-y then…

            I see a “freedom of speech” — no other “freedom” found… Oh let me guess; you’ve ‘construed’ the Full Faith & Credit between State travel to ‘entitle’ yourself ‘free citizenship’ anywhere. Does that include my backyard and family citizenship??

            Corruption at every corner.

        2. We didn’t even have passports when the Constitution was enacted. If you wanted to go to America, you got on a ship.

          1. My argument that government licensing of drivers and their vehicles violate freedom of movement under the Helsinki Accords (CSCE) doesn’t ever convince the guys and gals who sign the tickets. 🙂

          2. Not that it wasn’t controlled… The Naturalization process was more strict back then than today and I’m sure the “Open-Border” policy of the 1700’s was pretty easy to live with in a century where ships were max capacity of 100 or so passengers and horses couldn’t swim that far.

            I’m afraid your “used to be” equivalent test doesn’t hold any water.

      3. Respect for national borders isnt an anti libertarian position, especially in knowledge of the welfare state and the costs to others. Believing so is just naivete. Libertarianism doesn’t require you to be ignorant to reality. Yet this is the lame position the open borders without analysis crew exhibits. Break down the welfare state and you will find many more in support of free migration. But you ignore the conditional out of dishonesty.

        1. Placing conditions on basic human rights absolutely is an anti-libertarian position. Holding these rights hostage until certain political priorities are accomplished is neither libertarian nor honest.

          1. The US running the world is a libertarian concept now? Really?

            BTW, I noticed that all of the examples in this piece were of Democrats issues with courts. So what’s up with the “BOTH SIDES!” stuff?

            1. Looks like you missed the entire first half of the article about Roe and Obergefell.

          2. Immigration is not a basic human right. Your absolutist position only reinforces JAz’s argument; refusing to accept reality and some basic legal structures while stating that people who do not share your opinion are not libertarian or honest is a variation of No True Scotsman. Neither does your hyperbolic ‘holding rights hostage,’ do you any favors -there is no hostage situation, metaphorical or otherwise. You will find many here who support immigration reform, some who support open borders. The latter often claim to be libertarian, but their policy views are either entirely progressive, entirely anarchist, or absolutist libertarian. None of these views will function concurrently in our society, which requires accepting certain realities.

          3. not tanking the economy to feed leeches is not a political priority, it’s a matter of basic reality: you can’t spend more than you have.

        2. Respect for dietary restrictions isn’t an anti libertarian position, especially in knowledge of the socialized health care costs to others. Believing so is just naivete. Libertarianism doesn’t require you to be ignorant to reality. Yet this is the lame position the anti health nannies without analysis crew exhibits. Break down socialized medicine and you will find many more in support of free diet choices. But you ignore the conditional out of dishonesty.

      4. “These days I am more concerned about Boomers stubborn attachment to their feelings than Millennials. I had a conversation with one recently who made a case against the virus lockdowns based on the freedom to travel and freedom of association, which seemed fine, until he started to assert that these same freedoms did not apply to restrictions on immigration because “well, that’s just my opinion.” ”

        You should look up “false equivalence” and learn what it means.

      5. lol… Well, the boomer you talked to didn’t know the Constitution very well. 14th Amendment puts the Federal Government in charge of not only Indian voting but “Naturalization” as well as everything on illegal immigration including life and death.

        States on the other hand have to respect any person just as a citizen. It’s a bit confusing with ‘all persons’, ‘persons’ and ‘any person’ in the 14th Amendment but it all comes together logically in that context.

    3. More than feelings, too many young people are conditioned or addicted to a coddled, authoritarian system. They expect comprehensive care, feeding, and direction–and reject responsibility and risk.

      Like a common sci-fi meme, they deserve to be shocked out of their naive sheeple existence to embrace the marvelous wonder of each being in charge of their own future. I suppose we could blow up the internet.

    4. “” We’re talking about a whole generation of people who think that free speech isn’t protected if it hurts someone’s feelings. “”

      Not totally true. That only applies to people they like. They have no problem using hurtful speech against someone they don’t like.

      I’m a believer that the true character of someone can be seen not by how they treat their friends, but how they treat their enemies.

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  9. Of course, if there is a real big majority, and they get a little organized in a lot of states, they can amend the constitution.

    1. Of course, every time I think about this, I imagine a constitutional amendment that says “The second amendment really means “shall not be infringed”.

      1. A well regulated Militia, being necessary to the security of a free State,

        Sounds to me as if the Second Amendment requires every able-bodied person of military service age to regularly drill in military tactics. We can argue whether it requires every able-bodied person of military service age to own a gun or merely have access to a gun, but it certainly seems to impose a duty on the citizenry to be prepared to defend their country.

        1. How many gun control advocates actually favor Swiss-style comprehensive militia training? The militia business is a red herring

          1. They certainly seem to freak out when people *do* form militias.

        2. So many people are thrown off by the right to hear arms not being infringed. Apparently it means everything except what it says because someone write a good reason why in front of it.

        3. I’m guessing that you’re speaking sarcastically, but the BoR does not impose any duties on individual citizens.

          People in general are a special kind of terrible when it comes to reading the language of the constitution, amendments, etc. and placing that language in the proper context of the times in which it was written.

          If you were going to re-write the 2nd Amendment as close to its original meaning as possible, but translated into modern American English, it might read something like:

          Given that the government will be required to train and equip a professional army for national security purposes, therefore the citizens in general will not be prevented from owning and using weapons themselves.

          1. Given that the citizenry need be armed and trained to ensure fidelity to the Constitution by its government, The right to keep and bear arms shall not be infringed

            1. In the Revolutionary period, citizen militias trained themselves, up until the point they went into service with the Continental Army. The Minutemen didn’t answer to the British-appointed governor, after all.

      2. “”“shall not be infringed”.””

        That gets ignored just like “shall make no law” in the 1A.

        The left supports the overseeing, parental government that would provide you with all your needs. The Constitution is about limiting government so you can have more freedom. Of course that hate that document, even when they claim their constitutional rights are being violated.

    2. The biggest misunderstanding concerning majority rule on the left is the failure to understand that the US of A is a federal republic. They want to enact nationwide majority rule to overturn local laws passed by a local majority at the individual state level.

      1. They want majority rule except when they are in the minority.

          1. People also forget that majorities are temporary, which is one reason constitutional amendments require supermajorities, or, in many states, assent by the electorate in more than one election. A standard criticism of new democracies during decolonization is that they practiced “one man, one vote, one time.” This is also why Supreme Court nominations have become knife fights. 5-4 decisions that rewrite the Constitution are way easier than the amendment process. Lifetime appointments are also a lot less temporary than Congressional or Electoral College majorities.

  10. “Courts are supposed to frustrate the will of the majority when it violates the Constitution.”

    Majority rule, minority rule, potato, potahto.

    How about less rule, period?

    1. It’s in there constantly; “no state shall make or enforce any law….”
      The powers not delegated … in the Constitution, or prohibited (see above) are reserved to the States (and their Republican Constitutions) or to the people.

      The real sickness is electing politicians/judges who aren’t even asked about “delegated powers” and are instead compulsively hounded on “democracy” of mob-rule support; None of which is in the Constitution.

      1. The 2nd sickness is realizing the Constitution is the very LAW and the peoples created LAW over their government instead of some claim to personal entitlement.

  11. The problem is that if the majority of people agree that the majority of people should have an unchecked power to rule, there’s not much that can stop them. Except a bullet. And Democrats are democrats, they want to get rid of any checks on the power of the majority to create whatever rules they want. We’re going to need those bullets.

    1. They want to remake society; when the Constitution is not a problem with a particular agenda, it is fine; if so, then it is an obstacle to progress and therefore immoral.

  12. And we’re kicking Republican asses in fundraising these days which is hilarious.

    1. Lefties are desperate, delusional, and have more money thanks to Republican tax cuts.

      Of course Lefties are going to give more to Democrats and spend more too.

      Hillary spent more than Trump in 2016 and she lost YUGE.

      1. More and more Democrats are realizing that 99% of what they believe is wrong. Then they vote Republican or Libertarian.

      2. You have a funny definition of YUGE.

    2. Yeah I can’t believe your grift is working either and yes we all find the lemmings on your side rushing to throw money at their oppressor quite hilarious.

      1. Hint: a lot of that money is Chinese

    3. Agreed, it is hilarious how gullible your side is.

    4. Which largely comes from big money donors whereas the RNC leads in small money donors. So your side is getting money from the so called oligarchy while the RNC is getting money from Joe Public.

      1. “the filings this week with the Federal Election Commission also underscore a key advantage for Democrats in the weeks ahead: The support for their campaigns among small-dollar contributors.

        In six of the eight key contests, the Democratic challenger raised more of their funds from small-dollar donations than their Republican opponent did.”

        1. You left out this:
          “By Fredreka Schouten and David Wright, CNN”

    5. Billionaires supporting the party that funnels money to them – democrats.

      1. Cool story man.

    6. “”And we’re kicking Republican asses in fundraising these days which is hilarious.””

      So big money in politics is a good thing?

  13. People love the Constitution when it favors them, they tend to hate it when it doesn’t.

    A lot like authority; it’s great when you think it will only be used against those you do not like or agree with.

  14. The left believes in the tyranny of the minority through the courts.

    They don’t want a conservative bench because it has been proven in ballot boxes over and over and over again that their causes aren’t winning causes. Abortion couldn’t win, gay marriage couldn’t win, gun control can’t win. They want to force us to obey their edicts.

    I’m all for leaving minorities alone, but there should be some space for majorities to be able to exercise some of the things they want politically and socially.

    1. Actually at the time of Roe, abortion was winning, it was just taking time. State laws were changing, and abortions would probably have been legal to the extent it is today in most of the states within 20 years. (That was happening in other countries too.) Instead they got it all at once.

      “Liberal” causes are winning causes — always. It just takes time, like 50 years, more or less. “Liberals” more or less define themselves by “what’s coming”, and “conservatives” do as well, in opposition.

      1. And to both sides, the substance of what’s coming doesn’t matter, just that society is changing somehow. It could change, then change back, and in both directions it’s the “liberals” who want the change, “conservatives” who resist it.

  15. The scariest thing about most politicians is that they’ll do anything to get re-elected, no matter how immoral, foolish, or detached from reality.

    Supermajority requirements and courts exist precisely because, as a principle, we want to avoid majority rule.

    1. ^Very well stated.

  16. Citizens United: when democrats explicitly embrace political censorship.

    1. Of their own team.

      I’m sure they would have no problem with an anti-trump movie before election day.

  17. Civil marriage was created by legislative action, so please, will someone explain why the voters and their elected representatives can no longer define it?

    1. But was it created before the 1860s, when “equal protection” got enshrined into the Constitution? You don’t get to enforce those laws if they’re found to be discriminatory, even if they’re older than the EPC.

      1. lmao… “equal protection” under the law (i.e. legislative action). That doesn’t mean criminals can be criminals because of “equal protection”.

      2. Yes? But the legislature can still discriminate against people who want to marry their siblings? What’s the actual principal at work here?

        1. The wildly expanding boundaries of the word ‘discriminate’.

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  19. Nomos magazine had an article spread over 2 issues IIRC explaining the creation of “substantive due process” as a weaker form of liberty protection that got introduced after the Civil War amendments, then eroded in the 20th Century to the even more attenuted jurisprudence of today. The article linked to by Jacob above under the Roe criticism explains it more technically.

    It’s not just about the pressures to cut down US Constitutional protections while retaining some in distorted form to be wrangled over. There’s something more institutional here. It’s how lawyers make business for each other, and for judges. The ideologic drive to cut down liberty in favor of politics is one thing — the Canadian Charter of Rights was objected to a few years ago as “not leaving enough scope for politics” — is one thing, but I think it’s a lesser factor than the drive to make law more COMPLICATED. Yes, they want to be able to do politics, but EVEN MORE they want to have legal wrangling. They don’t much care who wins, they just want the game to go on, expensively and suspensefully. This transcends and is a more fundamental ground of contention than the liberty-authority divide.

  20. Sorry, you can’t “both sides” this argument. The Democrats want judges who will pretend the Constitution is a “living document” that can be interpreted and stretched and bent to mean whatever they want it to mean to match their policy goals. Republicans want judges who will strike down laws and past judicial rulings that violated the plain language or clear intent of the Constitution and Constitutionally enacted laws.

    1. But there are some constitutional interpretations that both sides claim are valid. For example: Leftists and the 2A (“only members of an organized militia, like national guards or law enforcement, should be allowed to own guns”) or conservatives and the 14A (“the amendment was supposed to apply only to freed slaves”).

      1. 14A works fine with immigration too so long as the context that the Federal Government is in charge of “naturalization” and it itself is NOT-A-STATE. It all comes together and makes sense.

        After recently putting this together; It made perfect sense why Democrats want to claim D.C. as a State too. It would utterly destroy the USA and the Constitution by it’s own words.

        1. Explanation; The State’s must treat ‘any person’ equal under the law – but that doesn’t apply to the Union of States (Federal) and is why the Federal is in charge of border control and border control ‘due process’.

    2. No, the actual state of affairs in Constitutional jurisprudence has indeed been a “both sides” thing, as explained by Jacob, since the original understanding of the 14th Amendment was more or less discarded amazingly soon after its ratification. Once the new normal of “substantive due process” had been established, it’s been both sides trying to either invoke or deny it.

  21. “…The New York Times complains that the president has been “filling the benches of the federal judiciary with young, conservative lawyers as a firewall against majority rule.”…”

    Boo efing hoo!

  22. Americans on the left and right expect courts to do that — The left sure like’s to give themselves a lot of credit in an area where little is deserved.

  23. “Inasmuch as the Constitution was never signed, nor agreed to, by anybody, as a contract, and therefore never bound anybody, and is now binding upon nobody; and is, moreover, such an one as no people can ever hereafter be expected to consent to, except as they may be forced to do so at the point of the bayonet, it is perhaps of no importance what its true legal meaning, as a contract, is. Nevertheless, the writer thinks it proper to say that, in his opinion, the Constitution is no such instrument as it has generally been assumed to be; but that by false interpretations, and naked usurpations, the government has been made in practice a very widely, and almost wholly, different thing from what the Constitution itself purports to authorize. He has heretofore written much, and could write much more, to prove that such is the truth. But whether the Constitution really be one thing, or another, this much is certain — that it has either authorized such a government as we have had, or has been powerless to prevent it. In either case, it is unfit to exist.” Lysander Spooner

  24. Spoonerific!

  25. Ginsburg herself questioned the Court’s reasoning, saying an argument based on the 14th Amendment’s guarantee of equal protection would have provided a firmer foundation.

    In my opinion, the firmest foundation would have been a very short decision.

    “Ninth Amendment. Enough said.”

    1. Justice Goldberg’s concurring opinion in the birth control case (Griswold) depends on the 9th.

  26. Conservatives call a check on majority rule “judicial activism”.

    1. Democracy definition is – government by the people; especially : rule of the majority.

      lol… I see dictionaries are getting ‘updates’ on that word too in our ‘lefty propaganda’ world.

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