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Changing the People: Legal Regulation and American Democracy

66 Pages Posted: 3 Sep 2010 Last revised: 20 May 2011

Tabatha Abu El-Haj

Drexel University Thomas R. Kline School of Law

Date Written: September 1, 2010

Abstract

The world in which we live, a world in which law pervades the practice of democratic politics – from advance regulation of public assemblies to detailed rules governing elections – is the product of a particular period of American history. Between 1880 and 1930, states and municipalities increased governmental controls over the full range of nineteenth-century avenues for democratic participation. Prior to this legal transformation, the practice of democratic politics in the United States was less structured by law and more autonomous from formal state institutions than it is today. Exposing this history challenges two core assumptions driving the work of contemporary scholars who write about the law of the American political process. First, the nineteenth-century mode of regulating politics belies the existing literature’s assumption that law must extensively structure democratic politics. Second, this account of nineteenth-century American democracy serves as a reminder that elections, political parties and voting, while critical to democracy, are not the whole deal. It thereby challenges Law of Democracy scholars to move beyond the existing literature’s narrow conception of democracy as elections and to consider more broadly the practice of democracy in America.

Keywords: Election Law, Constitutional Law, Legal History, First Amendment

Suggested Citation

Abu El-Haj, Tabatha, Changing the People: Legal Regulation and American Democracy (September 1, 2010). New York University Law Review, Vol. 86, 2011; Drexel University Earle Mack School of Law Research Paper No. 2010-A-13. Available at SSRN: https://ssrn.com/abstract=1670134

Tabatha Abu El-Haj (Contact Author)

Drexel University Thomas R. Kline School of Law ( email )

3320 Market Street
Philadelphia, PA 19104
United States

HOME PAGE: http://drexel.edu/law/faculty/fulltime_fac/Tabatha%20Abu%20El-Haj/

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