Judging Democracy’s Boundaries
Files
Description
The modern American experience with judicial oversight of the political process approaches the half-century mark. In that time, the discomfort with judges supplanting the decisions made through the political process has waned. Except in extraordinary times, such as the election of 2000 or when the Supreme Court assumed active vigilance over racial representation in the 1990s or in the current controversies over corporate expenditures on political campaigns, the idea that courts have a role in superintending the functioning of the electoral process no longer triggers grave constitutional concern. It may be that the American legal system has shed its concerns over the countermajoritarian dilemma, to invoke Alexander Bickel’s timeless formulation. More likely, however, is that there is now a sense of the familiar about the idea of judicially enforceable rights in the political process, the concept that took hold starting with the reapportionment cases of the 1960s (see Baker v. Carr 1962; Reynolds v. Sims 1964). Just as likely, this comfortable sense of familiarity is the result of the ability of the Supreme Court to package questions about the integrity of the democratic process within the safe confines of individual rights. Thus, when Justice Brennan, in Baker v. Carr (1962) proclaimed malapportionment justiciable, he did so within the “familiar” confines of equal protection law, rather than the more searching inquiry offered by the Republican Guarantee Clause. Grounding judicial intervention in the protection of the rights-based claims of classes of deprived voters landed the new political cases within the safe harbor of Carolene Products and the justification for judicial solicitude for the discrete and insular outcasts from the broader polity. Even John Hart Ely’s pioneering work on the distinct need for process protections, Democracy and Distrust, joined the debate in defense of the Warren Court as a byproduct of the perceived need to justify judicial review. In this chapter, I want to take a different look at the American experience. It may well be that the particular form in which American courts were able to engage the political thicket required reasserting the rights jurisprudence that swept the world after World War II. However, focusing on the form in which courts framed their doctrines may not well capture the role that such intervention played. As I have argued for many years now, it is hard to look across the sweep of American constitutional law governing the political process—from minority electoral prospects, to campaign finance, to gerrymandering, and so forth – and not be impressed by the transformative role that law has played in shaping American politics. For purposes of this chapter, I want to suggest, without further elaborating, that much of our contemporary dialogue about rights versus structures and process versus substance is an artifact of the path-dependent byways that brought us to a robust body of law governing the political process. Our constitution is conspicuously silent on the contours of democracy, and many of our subsequent doctrinal developments are the consequence of a perceived need for judicial backfilling. While these are important ongoing sources of debate and elaboration, they are by this point more familiar, and I want perhaps to illuminate these issues by looking away from the American experience. The focus of this chapter will instead be the central role assigned in recently formed democracies to constitutional courts and to the fact that these courts appear to be a required element for the creation of these new democracies. Invariably, these courts are established with the primary purpose of ensuring the constitutional pedigree of the actions of the new political orders, a charge that leaves them unencumbered by the American fixation with the source of the authority for judicial review and the accompanying hand-wringing over countermajoritarianism. If we were to look at the role of these courts as a common enterprise—leaving aside the structural and political differences within the varying new democracies—the question could become one of defining the role that these courts are expected to play under the broad rubric of constitutional democracy. Specifically, the inquiry is twofold: First, how should we understand the role of these courts? And second, how do these courts discharge that role?
Source Publication
Race, Reform, and Regulation of the Electoral Process: Recurring Puzzles in American Democracy
Source Editors/Authors
Guy-Uriel E. Charles, Heather K. Gerken, Michael S. Kang
Publication Date
2011
Recommended Citation
Issacharoff, Samuel, "Judging Democracy’s Boundaries" (2011). Faculty Chapters. 926.
https://gretchen.law.nyu.edu/fac-chapt/926
