Rights and votes.

AuthorLevinson, Daryl J.

ARTICLE CONTENTS INTRODUCTION I. RIGHTS OR REPRESENTATION A. Constitutional Structure and Rights B. Constitutional Protection for Slavery C. Emergencies and Executive Power D. Rights as Representation Reinforcement E. Voting Rights and Civil Rights F. Comparative Constitutional Design G. Democratization, Rights, and Redistribution H. Global Governance I. Corporate Law J. Labor and Employment Law K. Juries, Race, and Representation in Criminal Justice II. HOW TO CHOOSE? A. Absoluteness Versus Flexibility B. Durability C. Democratic Limitations D. Expression and Acculturation E. Summary III. BEYOND "RIGHTS VERSUS VOTES" A. Rights and Votes as Complements B. A Third Option: Exit and Autonomy CONCLUSION INTRODUCTION

Rights and votes are commonly cast in stark opposition to one another. Theorists of political liberalism and justice tend to view rights as extrapolitical limitations on democratic decisionmaking. Constitutional lawyers, too, have long been obsessed with what they see as an inherent conflict between constitutional rights and democracy--and, at the institutional level, between judicial and legislative supremacy. Even where rights and votes are not pitted against each other, they are treated as categorically different phenomena. Disciplinary boundaries divide political and constitutional theorists--who tend to "think in terms of rights and equality"--from political scientists and election law scholars who are interested in "the organization of power." (1) The division between rights and votes also cuts through the middle of constitutional law. A central organizing principle of doctrine, scholarship, and curriculum is the distinction between the "structural" provisions of the Constitution, which create the institutional framework of democratic government, and the "rights" provisions, which place limits on what that government is permitted to do.

Yet rights and votes need not be seen as working at cross-purposes or taxonomized as deeply different kinds. At least in some settings, rights and votes might be viewed instead as compatible tools for performing the same basic job. In particular, both can be used in domains of collective decisionmaking to protect minorities (or other vulnerable groups) from the tyranny of majorities (or other dominant social and political actors). (2) One way of protecting a minority is to create and enforce rights against majoritarian exploitation. Another is to structure the political process so that minorities are empowered to protect themselves.

In fact, rights and votes have been viewed as functionally similar in this way in a wide array of constitutional and political contexts. For example, the Framers of the U.S. Constitution attempted to protect the rights of property owners, religious dissenters, and other minorities by creating a structure of government that would politically empower these groups to block any attempt by overbearing majorities to trample their interests. James Madison and the other Federalist Framers dismissed the enumeration of rights--as in the Bill of Rights--as a less effective means to the same ends. More recent constitutional designers concerned with protecting ethnic and religious minorities have confronted the same choice between relying on mechanisms of political empowerment and rights backed by judicial review. The NAACP in the Jim Crow South had to decide whether to allocate resources to securing access to the ballot or to strengthening substantive rights protection--whether to push first for the Voting Rights Act or for the Civil Rights Act. (3) Courts and constitutional theorists, too, have recognized that rights can compensate for the absence of political empowerment: this is the pivotal insight of "process" theorists like John Hart Ely and arguably the basis for much of the Supreme Court's post-New Deal rights jurisprudence on the Carolene Products Footnote Four model. (4) Courts have leveraged the functional similarities of rights and votes in other ways, as well. During times of war and crisis, for instance, the Supreme Court has attempted to protect civil rights and liberties indirectly by bolstering political checks on executive power. (5)

Consolidating and abstracting from these and other examples, this Article explores the functional similarities, residual differences, and interactions between rights and votes as tools for minority protection. The Article starts from the simple idea that the interests of vulnerable groups in collective decisionmaking processes can be protected either by disallowing certain outcomes that would threaten those interests (using rights) or by enhancing the power of these groups within the decisionmaking process to enable them to protect their own interests (using votes). Recognizing that rights and votes can be functional substitutes for one another, the Article proceeds to ask why, or under what circumstances, political and constitutional actors might prefer one to the other--or some combination of both.

More specifically, the Article is organized as follows. Part I surveys a range of contexts in which rights and votes have been recognized as alternative mechanisms for protecting the important interests of minorities and other vulnerable groups. While the primary focus is on constitutional law and design, the survey in Part I shows that similar choices between rights and votes arise in many different areas of law, politics, and economic organization, including international law and governance, corporations, criminal justice, and labor and employment law. In all of these contexts, rights and votes can serve as functional substitutes for one another.

That said, rights and votes are not always perfect substitutes. Drawing on the examples surveyed in Part I, Part II identifies and critically examines the most commonly cited differences between rights and votes that have been thought to bear on the choice of whether to use one or the other. One such difference operates along the dimension of breadth versus depth. Votes offer minorities and other groups the ability to exert influence over a broad range of issues, but with no guarantee of prevailing. Rights potentially offer such a guarantee, but only for a restricted range of issues. Along a different dimension, voting arrangements are generally believed to be more durable--more resilient against majoritarian opposition--than rights. A number of additional considerations, on the other hand, seem to weigh in favor of rights. For example, votes may be of little value for individuals and small minorities; attempts to bolster the political power of minorities may vest these groups with undesirable holdout power and generate high decision costs; and limitations on the permissible or practical scope of the political community may render some groups ineligible for political enfranchisement in the first place. Part II discusses these and other considerations that may influence the choice between rights and votes in any given setting.

Part III extends the central analysis of the Article in two directions. First, rights and votes are not just substitutes but also, in some circumstances, complements. Section III.A discusses a number of respects in which political representation may enhance the value of rights, and the other way around. Groups may need political power to preserve and enforce their rights, and rights may generate or be preconditions for the meaningful exercise of democratic political power. Second, rights and votes are not the only means of protecting minorities and other vulnerable groups from the outcomes of collective decisionmaking. Section III.B moves beyond rights and votes to consider a third common method of protecting minorities: federalism (or a range of institutional analogues). Rather than empowering minorities to exercise greater voice in political decisionmaking processes or using rights to protect them against particularly unfavorable outcomes from those processes, minority groups can be permitted to exit the larger political community and exercise autonomous decisionmaking authority in a community of their own. The discussion in this Section describes how decentralized governance arrangements offer a third alternative to rights and votes in some contexts and then proceeds to explore some of the relative advantages and disadvantages of that approach.

To avoid confusion, it should be noted at the outset that the Article's use of the terms "rights" and "votes" may depart somewhat from ordinary meanings. Here, "votes" are understood to include not just ballots but also any form of representation or direct participation in processes of collective decisionmaking, or any institutional or structural arrangement of those processes that better enables groups to influence outcomes. Giving a minority group "votes," in this expansive sense of the term, can mean enfranchising them at the polls. But it can also mean bolstering their voice through redistricting or proportional representation; increasing their decisionmaking power within the legislature by requiring supermajority votes or creating vetogates; facilitating pluralist bargaining or nonelectoral channels of influence through which minorities can exercise meaningful political voice even if they are outvoted; or creating structures and institutions like the separation of powers or the United States Senate that similarly empower numerical minorities to block or influence policy.

The analytic framework of the Article draws a further distinction between "votes" and "exit" in the form of decentralized, autonomous decisionmaking by particular groups or outright secession. Regrettably, this distinction cuts across the conventional category of constitutional "structure," which is commonly understood to include both the electoral and institutional framework of national democracy (i.e., "votes") and federalism (i.e., "exit"). (6) Lumping federalism together with separation of powers has...

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