Democracy and the Other: The Inverse Relationship between Majority Rule and a Heterogeneous Citizenry

Abstract

This article seeks to demonstrate that as “we the people” shifts from majority white to majority brown, political power is also shifting, from rule by the many (people) to rule by the few (judges). It begins with a discussion of judicial review in the founding era, when high levels of cultural homogeneity (as a result of restrictive notions of citizenship) limited the number of “values” issues susceptible to judicial review and thereby limited the scope of judicial review itself. It then discusses changes to judicial review as previously disenfranchised groups obtained political power during the civil rights era. It notes that shifting coalitions of minorities on both sides of the political spectrum have increasingly entreated courts to protect them from their neighbors’ exercise of the franchise. This article argues that this trend enlarges the scope of judicial review while reducing the power of the majority; thus, the power wielded by future majority coalitions of color will be far less than that wielded by generations of white majorities. This article recommends replacing the insurance model of judicial review with an empowerment model that makes the autonomy of an educated citizenry the goal of judicial intervention.

Keywords: Majority Rule, Empowerment, Judicial Review, Homogeneity, Civil Rights

JEL Classification: K1