Second-Order Diverse in Name Only?: Sovereign Authority in Disaggregated Institutions

22 Pages Posted: 14 Feb 2014 Last revised: 13 Mar 2014

Date Written: June 7, 2013

Abstract

In Second-Order Diversity and Dissenting by Deciding, Heather Gerken makes a powerful case that the individuals who are usually on the fringe of our governing institutions — the dissenters, the minorities, the outsiders — exercise power in our majoritarian system that can be undermined if we promote a conception of diversity that treats all institutions as unitary and identical. Second-order diversity encourages institutional experimentation by providing a forum for dissenters and electoral minorities to exercise power on behalf of the state and engage in policymaking. Gerken's theory allows minorities to “dissent by deciding” since, in some disaggregated institutions, these individuals control the outcome and influence the broader spectrum of democratic decision-making.

In this essay, written for a festschrift in honor of Heather Gerken, I argue that promoting second order diversity as a normative ideal may not require the same level of sovereign authority that we typically think of in the context of "hard" federalism, which is the traditional conception of the states and the federal government as being sovereign within their respective regulatory spheres. Hard federalism would seem to require the existence of a "formal enclave" in order to protect the decisions of dissenters, a notion that Gerken does not embrace. At the very least, her theory requires a strong conception of autonomy, where electoral minorities have plenary authority and can exercise meaningful power in their respective subunits. By focusing on juries and electoral districts, this essay fleshes out the extent to which the decision-making authority of electoral minorities is insulated when they are exercising power on behalf of the state. In operationalizing Gerken’s thesis, the goal of this analysis is to make the normative commitment to second order diversity mean more than simply dissenters having power in name only, but it does so within the context of a sovereignty/autonomy based framework that is considerably more flexible than that offered by traditional federalism theory.

Keywords: diversity, elections, dissent, sovereignty, autonomy, federalism

Suggested Citation

Tolson, Franita, Second-Order Diverse in Name Only?: Sovereign Authority in Disaggregated Institutions (June 7, 2013). Tulsa Law Review, Vol. 48, p. 455, 2013; FSU College of Law, Public Law Research Paper No. 665. Available at SSRN: https://ssrn.com/abstract=2396012

Franita Tolson (Contact Author)

USC Gould School of Law ( email )

699 Exposition Blvd
Los Angeles, CA California 90089
United States
2137407683 (Phone)

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