Constitutionalizing Democratic Politics

Constitutionalizing Democratic Politics

Description

Bush v. Gore, for all its uniqueness, is not an isolated event. It is best understood, instead, as the most dramatic crystallization of a deeper, more enduring pattern in the contemporary relationship between democratic politics and constitutional law. This pattern might be called the “constitutionalization of democracy.” Over the last decade or so, powerful litigants – the major political parties, incumbent officeholders, candidates for the presidency—have increasingly raced to the courts and sought to subject the fundamental structure of democratic processes and institutions to constitutional constraint. And they have succeeded: Whether the issue is what kind of election primaries we are to have, or how we are to finance political campaigns, or how effective a role third parties and independent candidates will play, or whether disputed presidential elections will be resolved through political processes (such as in Congress), constitutional law in the las decade has come to play a central—often the dominant—role. Constitutional law now sharply constrains the possibilities for experimentation with the forms of democratic politics; constitutional law now limits the structural changes through which disaffection with the current practices of democratic politics can be given institutional expression. That constitutional law plays some role in overseeing the structures and processes of democracy is not, in itself, a surprise. Since the Supreme Court first held in 1962 that claims involving “political rights” could be resolved in the courts, constitutional law has regulated certain aspects of democratic politics. Representative institutions must be designed in accord with one person, one vote; the right of the adult, resident, non-felon citizens to vote has achieved the status of a fundamental constitutional right; electoral structures cannot be designed to minimize or “dilute” the voting power of certain identifiable groups, such as racial minorities. But these foundational principles from the Court’s initial foray into issues of democracy all rested, as I will show here, on a specific, relatively precise, and quite convincing set of functional justifications for why the Court had come to view constitutional oversight as necessary on selected, discrete issues. What is surprising over the last decade is that the Court now routinely deploys constitutional law to circumscribe the forms democracy can take in situations that bear no relationship to those that had originally justified constitutional intervention. As this essay will show, the Court now almost reflexively acts as if it were appropriate for constitutional law always to provide ready answers as to what makes democracy “best”—without the Court asking any longer whether there are appropriate reasons that democratic politics itself is not the proper forum in which to address those questions. This judicial constitutionalization of democratic politics is, perhaps, the single most important development in constitutional law over the last decade. But this development has attracted little academic or popular notice. Instead, as Judge Richard Posner rightly observes, scholarship on constitutional law and the Supreme Court has remained obsessed for several decades with issues of individual rights and equality. Issues concerning the structures of democratic governance, by contrast, have met with indifference at best, disdain at worst—as if sophisticated thinking has moved beyond formal politics to more “essential” issues of rights and equality. But the kind of democracy we experience is not some pure distillation of organic cultural and political forces. Democratic experience is a product, more than it often realized, of the institutional frameworks and legal rules that structure current democratic arrangements. Nor can we move “beyond” formal democratic politics to some other, more essential domain. For politics and these other domains—be they culture or economics—mutually influence each other. Many people, for example, are aware of the history of racial segregation and of Plessy v. Ferguson. Many fewer, however, understand the history of the massive disfranchisement of black citizens (and poor whites) in the South from 1890-1965 and the importance of Giles v. Harris. Yet for the brief window of time in which Southern blacks could vote, interracial political coalitions emerged; much about political culture and law, as well as social relations, differed in the era in which formal politics was open to black citizens. Segregation would not have endured for so long had black citizens not been expelled in the South, throughout most of the twentieth century, from democratic politics. After Bush v. Gore, the structures, institutions, and ground rules of democracy—and the role of constitutional law in assessing them—can no longer be avoided. If nothing else, Bush v. Gore will shape the agenda of discussion on constitutional law and the Supreme Court for some time. But if we analyze the election decision in isolation from the merging jurisprudence of democracy of which it is but one piece, we will miss what is least singular—and hence most likely lasting—about Bush v. Gore and the vision of democracy it represents. In this essay, I set the stage initially with a description of the broader political and cultural moment in which we seem to exist. I then turn to how the Supreme Court has responded to the challenges to existing democratic practices that this moment has spawned. My aim is first to chronicle this emerging jurisprudence of democracy, then to understand and explain what appears to be driving it. We will then be in a position to assess analytically what the relationship of constitutional law to democratic politics has become—and what it ought to be.

Source Publication

A Badly Flawed Election: Debating Bush v. Gore, the Supreme Court, and American Democracy

Source Editors/Authors

Ronald Dworkin

Publication Date

2002

Constitutionalizing Democratic Politics

Find @ NYU

Share

COinS