Rights and Votes
71 Pages Posted: 20 Jul 2011 Last revised: 8 Aug 2012
Date Written: July 19, 2011
This article explores the functional similarities, residual differences, and interrelationships between rights and votes, both conceived as tools for protecting minorities (or other vulnerable groups) from the tyranny of majorities (or other dominant social and political actors). The article starts from the simple idea that the interests of vulnerable groups in collective decisionmaking processes can be protected either by disallowing certain outcomes that would threaten those interests (using rights) or by enhancing the power of these groups within the decisionmaking process to enable them to protect their own interests (using votes). Recognizing that rights and votes can be functional substitutes for one another in this way, the article proceeds to ask why, or under what circumstances, political and constitutional actors might prefer one to the other or some combination of both. While the primary focus is on constitutional law and design, the article shows that similar choices between rights and votes that arise in many different areas of law, politics, and economic organization, including international law and governance, corporations, criminal justice, and labor and employment law.
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By David Lublin