The Antidomination Model and the Judicial Oversight of Democracy
75 Pages Posted: 11 Jul 2009 Last revised: 10 Aug 2009
Date Written: June 1, 2008
The judicial oversight of democracy has posed intractable problems for constitutional law. Nowhere is this challenge more evident than in the Supreme Court’s ongoing attempts to develop a coherent approach for the adjudication of partisan gerrymandering claims. This Article therefore proposes a new framework - the antidomination model - which sheds fresh light on the Supreme Court’s supervision of democracy. I argue that a critical aspect of the problem, but one that is under-theorized and often overlooked, is that many of the pathologies that affect the democratic process are best conceptualized as instances of domination; that is, they have at their core an illegitimate exercise of public power. The problem posed by the abuse of power, however, has not been directly addressed in a sustained way by courts and commentators. This Article therefore advances a normative and institutional theory of antidomination that would allow courts to minimize the illegitimate exercise of power by public officials in the design of democratic institutions, without also involving courts too deeply in determining what that design should be. Under the antidomination model, the principal role of the courts is to minimize domination and the appearance of domination in the processes through which democratic institutions are designed. The antidomination model offers a new approach for conceptualizing and resolving partisan gerrymandering claims.
This Article proceeds in four parts. In Part I, I argue that courts should adopt a “minimizing democratic harms” approach in which the judicial task is to prevent or minimize the democratic harm of domination. By contrast, conventional accounts in the election law scholarship at times follow a “maximizing democratic goods” approach under which one democratic ideal - participation, competition, or equality - is presented as the objective to be achieved by judicial intervention. In general, I suggest that courts are better suited to minimizing democratic harms than to maximizing democratic ideals.
Part II develops the normative dimension of the antidomination model by focusing on the concepts of domination and power, and by engaging extensively with democratic and republican theory. Part III describes the institutional dimension of the antidomination model. Under a domination-minimizing approach, the burden is on elected officials to demonstrate that the process by which a redistricting map was adopted did not involve the illegitimate exercise of public power. The role of the courts, by contrast, is to assess the validity and legitimacy of the legislative decision-making process. This institutional division of labor would serve to correct the negative institutional incentives of legislators to manipulate the rules of the game, and would spare courts from having to design remedies for democratic pathologies.
Part IV offers an extended application of the proposed framework by focusing on the Supreme Court’s decision in Vieth v. Jubelirer. In so doing, this Article takes preliminary steps in articulating what a structural approach to resolving partisan redistricting claims would entail. In addition, this Article develops a methodology for evaluating the structural impact of the Supreme Court’s election law decisions on the organization and exercise of power.
Keywords: Supreme Court, constitutional law, election law, partisan redistricting, judicial review, democratic theory
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