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Felix Frankfurter's Revenge: An Accidental Democracy Built by Judges

64 Pages Posted: 31 Mar 2012 Last revised: 13 Apr 2012

Burt Neuborne

New York University School of Law

Date Written: July 15, 2011


A critical overview of judicial activity in the democracy area since Baker v. Carr. Professor Neuborne argues that the failure of the judiciary to commit to a substantive conception of democracy has resulted in a judicially-designed law of democracy that may or may not be defensible on purely doctrinal grounds, but that has resulted in the evolution of a poorly-designed democracy that no rational Founder would have endorsed. The article surveys five lines of judicial authority: (1) defining the eligible electorate: (2) determining the circumstances under which eligible members of the electorate can be disenfranchised; (3) regulating the formal operation of the electoral process, including gerrymandering; (4) determining the ability of voters to influence entrenched political interests; and (5) regulating the funding of electoral campaigns, and concludes that, except for the definition of the eligible electorate, judges have done a poor job in developing the law of democracy. The article argues for a greater sense of judicial responsibility for the quality of the democracy their decisions are shaping.

Keywords: law of democracy, judicial authority, electoral process, campaign financing

Suggested Citation

Neuborne, Burt, Felix Frankfurter's Revenge: An Accidental Democracy Built by Judges (July 15, 2011). New York University Review of Law & Social Change, Vol. 35, No. 3, p. 602, 2011; NYU School of Law, Public Law Research Paper No. 12-15. Available at SSRN:

Burt Neuborne (Contact Author)

New York University School of Law ( email )

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United States
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