Parties and Transformative Politics

Abstract:     
Constitutional law in general, and the Supreme Court's ballot box jurisprudence in particular, treats questions concerning the rights of racial minorities as problematic cases in which courts must straddle a fine line between equal rights and special rights. In this Article, Professor Smith argues that the Court's Fourteenth Amendment constraints on the use of race have deprived political parties of the ability to deliver a transformative brand of politics to racial minorities by improving their social and political fortunes and moving them closer to equality of citizenship. While the Court has rendered political parties less substantive for racial minorities, its racially disparate expansion of political participation rights under the First Amendment has, ironically, had a similar effect on white voters. Professor Smith demonstrates that First Amendment decisions which on their face appear to democratize the political process have the perverse effect of contracting the substantive choices of voters. However, notwithstanding the convergence of partisan politics in the same direction for whites and voters of color - that is, away from substance - the impact on equality of citizenship of this flight from substance is radically different for racial minorities and thus warrants a less skeptical judicial view of political parties' transformative use of race.

Number of Pages in PDF File: 28

Accepted Paper Series