The ‘tyranny of the majority’ problem is a longstanding issue in constitutional theory concerned with majority oppression of minorities in democracies. This paper argues that new minorities — groups that switch from being in the majority to in the minority — present a particular set of challenges for the problem. First, they disrupt typical understandings of what constitutes ‘tyranny’ and what constitutes ‘the majority’. Second, they challenge the attraction of the two most common constitutional responses to the problem — rights and structures.
The paper illustrates this challenge by reference to Australia’s COVID-19 measures. In response to the pandemic, Australia shut its international border, effectively leaving tens of thousands of citizens stranded overseas. A new minority was created that was unlikely to have been protected by rights (because any limitations were arguably justifiable) or structures (because they are suited to entrenched minorities). The paper argues, however, that greater state capacity might have ameliorated the situation, suggesting it may be a third constitutional response to the tyranny of the majority problem.