Abstract

http://ssrn.com/abstract=2365894
 


 



Partitioning and Rights: The U.S. Supreme Court’s Accidental Jurisprudence of Democratic Process


James A. Gardner


SUNY Buffalo Law School

December 10, 2013

SUNY Buffalo Legal Studies Research Paper No. 2014-013

Abstract:     
In democracies that allocate to a court responsibility for interpreting and enforcing the constitutional ground rules of democratic politics, the sheer importance of the task would seem to oblige such courts to guide their rulings by developing an account of the nature and prominent features of the constitutional commitment to democracy. The U.S. Supreme Court, however, has from the beginning refused to develop a general account – a theory – of how the U.S. Constitution establishes and structures democratic politics. The Court’s diffidence left a vacuum at the heart of its constitutional jurisprudence of democratic process, and like most vacuums, this one was almost immediately occupied. But the Court filled its jurisprudential hole not primarily by invoking principles of democracy – even unstated ones – but by doing instead what reluctant decision makers often do: by reaching for whatever is handy. This reaction took two main forms. First, in the absence of a pertinent theory to guide it, the Court fell back on habit, specifically a habit, developed in its earliest cases, of solving problems of political power and representation by partitioning the electorate – that is, by ordering it subdivided. By resorting reflexively to this approach, the Court soon came to treat partitioning as the preferred solution to most problems of democratic representation. Second, the Court reached for the tools of decision that were most ready at hand, and those tools were individual rights, initially equal protection, then the freedoms of speech and association. But because these tools were ill-suited to the task, the Court ended up stretching First Amendment analysis in these cases beyond its plausible bounds and purposes. A well-ordered democratic state needs a thoughtful and deliberate jurisprudence of democracy and democratic practice. Instead, the Court has provided an accidental, haphazard jurisprudence of habit and availability.

Number of Pages in PDF File: 44

Keywords: election law, democracy, representation

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Date posted: December 12, 2013  

Suggested Citation

Gardner, James A., Partitioning and Rights: The U.S. Supreme Court’s Accidental Jurisprudence of Democratic Process (December 10, 2013). SUNY Buffalo Legal Studies Research Paper No. 2014-013. Available at SSRN: http://ssrn.com/abstract=2365894

Contact Information

James A. Gardner (Contact Author)
SUNY Buffalo Law School ( email )
Room 514, O'Brian Hall
Buffalo, NY 14260-1100
United States
716-645-3607 (Phone)
716-645-2064 (Fax)
HOME PAGE: http://www.law.buffalo.edu

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