Constitutionalizing Democratic Politics

Abstract

Among the most significant, but least appreciated, developments in Supreme Court decisionmaking over the last generation has been what this Article calls "the constitutionalization of democracy." In recent years, powerful litigants - the major political parties, incumbent officeholders, candidates for the Presidency - have increasingly turned to the courts to subject the fundamental structure of democratic processes and institutions to constitutional constraint. To a degree that would have been inconceivable even 20 years ago, and that has no parallel in any constitutional system outside the United States, these efforts have largely succeeded. This Article first documents the factors that have led to more frequent challenges to the existing structures of democracy in the United States; these challenges can be seen in the renaissance of the voter initiative, the rise of third party politics, and the increasing disaffection of more citizens from traditional forms of politics. The Article then describes how constitutional law has responded to these challenges. The Article builds towards a framework for defining the circumstances in which constitutional oversight of democratic politics is best justified, and when such oversight is least justified. The Article thus seeks to defining the appropriate boundary between constitutional law and democratic politics, and to identify why the need for theoretical clarity about this question is taking on greater urgency as the pressure increases to constitutionlize more features of democratic politics.