Reverse Political Process Theory
71 Pages Posted: 27 Mar 2017 Last revised: 8 Nov 2017
Date Written: March 24, 2017
Despite occasional suggestions to the contrary, the Supreme Court has long since stopped interpreting the Constitution to afford special protection to certain groups on the ground that they are powerless to defend their own interests in the political process. From a series of decisions reviewing laws that burden whites under the same strict scrutiny as laws that burden racial minorities, to the more recent same-sex marriage decision based principally on the fundamental nature of marriage (rather than the political status of gays and lesbians), it is now an uncontroversial observation that when it comes to applying the open-textured provisions of the Constitution, the Court sees no distinction between the powerless and powerful.
This Article challenges that conventional wisdom from a perhaps unexpected direction. I argue that the Court has gone further than to merely reject the political process theory of constitutional interpretation, under which powerless discrete and insular minority groups alone would be entitled to heightened judicial solicitude. In several doctrinal areas, the Court has reversed the theory’s core prescription by conferring extra constitutional safeguards upon entities that, by any fair accounting, possess an outsized ability to protect their interests through the ordinary democratic process — all the while withholding similar protections from less powerful counterparts.
After describing these doctrinal developments, this Article offers a critical account of the Court’s long and tumultuous relationship with political process theory. I conclude that although opponents of the theory may have been fair to question its ability to restrain judges as a positive principle of constitutional adjudication, political process theory ought to retain force as a negative command. That is to say, even if one believes judges cannot avoid substantive value judgments when deciding which groups are so powerless as to warrant extraordinary protection from the democratic bazaar, attention to the political process should still require judges to stay their hand before granting special constitutional treatment to entities that are powerful enough to look out for themselves.
Keywords: political process theory, john hart ely, ely, process theory, constitutional law, constitutional interpretation, constitutional construction, personal jurisdiction, general jurisdiction, daimler, sovereign immunity, waiver, waiver rules
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