Making the law safe for democracy: a review of "The Law of Democracy etc.".

• Author: Neuborne, Burt
• Position: 1999 Survey of Books Related to the Law

THE LAW OF DEMOCRACY: LEGAL STRUCTURE OF THE POLITICAL PROCESS. By Samuel Issacharoff, Pamela S. Karlan, and Richard H. Pildes. Westbury, N.Y.: Foundation Press. 1998. Pp. 733. $49.95.

I.

Henry Hart began his 1964 Holmes Lectures by asking what a "single" would be without baseball. We rolled our eyes at that one, reveling in the maestro's penchant for the occult. As usual, though, Professor Hart was trying to tell us groundlings something precious. He was warning us that conventional legal thinking, by stressing rigorous deconstructive analysis, can obscure an important unity in favor of components that should be analyzed, not solely as freestanding phenomena, but as part of the unity. Without recognition of the unity, analysis of the components risks being carried on in a normative vacuum that will inevitably be filled by another tie-breaking mechanism, often to the detriment of the larger enterprise. A ban on littering in the park, for example, taken in isolation, might justify stringent prophylactic measures, like a ban on picnicking, or leafleting, or bringing newspapers into the park. Only when the littering ban is subsumed into the larger unity of a law of recreation (or something else) can its scope be properly analyzed.(1) Thirty-five years late, I assume that was what Professor Hart meant when he warned us against thinking about "singles" without thinking about baseball.

Nowhere is Professor Hart's warning about the potential pitfalls of excessively deconstructive legal analysis more important than in thinking about the law of democracy. Conventional legal analysis has ruthlessly deconstructed democracy into component parts, and analyzed the components with only cursory attention to the larger democratic enterprise. A functioning democracy is, after all, the sum of crucial components -- free speech, political equality, liberty, toleration, empathy, self-interest, efficiency, and much more. In the fifty-odd years that American courts have struggled seriously with the care and feeding of the democratic process,(2) however, legal doctrine has paid little attention to democracy as a unifying normative ideal. Instead, the functional reality of democracy in the United States is, and has been, held hostage to the law governing its components. First Amendment analysis dictates the ground rules governing campaign financing without any real attention to what kind of democracy comes out the other end.(3) Equal protection analysis dominates voting rights law,(4) and dictates what kind of representational patterns we can have,(5) without much, if any, thought about what the effect will be on democracy. In truth, American courts often appear to govern our democracy much like a well-meaning umpire who thinks that rules governing "singles" can be crafted without thinking much about baseball.

Until we begin to think about the law of democracy as an interrelated set of legal principles designed to serve a normative ideal, the quality of American democracy will remain hostage to the law governing its components. That is why publication of The Law of Democracy: Legal Structure of the Political Process, the first casebook to treat the legal rules governing the democratic process as a unified field of study, is such a welcome event.(6) One of the most important functions of an excellent casebook is to identify and reinforce a unity, helping us to approach its components not simply as freestanding doctrinal events, but as integral parts of a greater whole. While The Law of Democracy is only the beginning of the process, by persuasively conceiving of the law of democracy as an academic unity worthy of classroom attention, the authors Samuel Issacharoff,(7) Pamela Karlan,(8) and Rick Pildes(9) have performed an invaluable service.

Without denigrating the book's generally excellent content, its most important achievement may well be its very existence. By providing academics with a set of challenging and useful teaching materials in the area of democracy, the book helps to establish the law of democracy as an independent field of study. One can expect challenges to the vision (or the lack of vision) projected by this book, but I do not believe that it will be possible to ignore the need for a democracy-centered critique of the various strands of doctrine that coalesce to form the legal matrix for our politics. Moreover, once the teaching of the law of democracy proliferates in our law schools, it is only a matter of time until considerably more serious legal academic discussion of the normative questions surrounding democracy emerges.(10) Now that the important questions that swirl about the law of democracy in a rich mixture of normative debate and descriptive assessment have an academic focus in a discrete field of legal study, we can finally begin thinking about littering, for example, not as a freestanding idea, but in the context of an overarching law of recreation.

II.

Despite its occasionally arbitrary organization, The Law of Democracy teaches quite well. I attempted a course in the law of democracy before the book's publication. The absence of a carefully selected set of edited cases forced students and the instructor to reinvent the wheel each semester. As anyone who attempts to teach in a new field can attest, the burden of putting together teaching materials is extremely daunting. My efforts to assign voluminous, unedited case readings were only partially successful. As a practical matter, therefore, the book's publication makes a demanding course on the law of democracy generally available for the first time.

The Law of Democracy opens with a short but challenging Chapter entitled "Introduction to the Selection of Democratic Institutions" built around an apportionment case -- Lucas v. Forty-Fourth General Assembly of Colorado.(11) In Lucas, Colorado voters approved an apportionment scheme that favored rural districts in allocating seats in the State Senate. The apportionment plan, which significantly deviated from the one-person, one-vote standard, was adopted by a majority of the voters in every Colorado county, including the urban counties receiving disproportionately low representation. The authors present students with excerpts from Chief Justice Warren's now-conventional defense of the one-person, one-vote principle, and two dissents by Justices Clark and Stewart, raising institutional and philosophical challenges to a single approach to apportioning both houses of the legislatures of the fifty states. The authors use the opinions skillfully to raise troubling questions about the role of courts in setting the ground rules for democracy. Characteristically, the chapter is more successful in raising doubts about the institutional competence of courts than it is in introducing students to normative arguments in favor or against certain conceptions of democracy. Indeed, if The Law of Democracy has a serious flaw, it is a seeming reluctance to go beyond judicial opinions to explore the fundamental normative questions of democracy that underlie the cases. But more about that later.

I also have a minor quibble with confining the Introduction to Lucas, which seems to me a bloodless case that does not reflect the passion that often surfaces in democracy litigation. I find it helpful to pair Lucas with a second case(12) involving another judicial effort to define basic democratic ground-rules.

The introductory chapter gives way to Chapter 2, entitled "The Right to Participate," an exploration of the struggle to establish a constitutionally protected right to vote. The chapter opens with provocative cases a century apart upholding denial of the right to vote to women(13) and convicted felons,(14) and continues with cases like Harper v. Virginia State Board of Elections(15) and Kramer v. Union Free School District No. 15(16) that establish the modern contours of the right to vote. While the material in the chapter is thorough and analytically precise, it suffers, I believe, from three weaknesses: a curious failure to discuss the potential doctrinal underpinnings of a constitutional right to vote;(17) a reluctance to explore the qualitative dimensions of voting;(18) and a reluctance to confront broadly the normative question of who should be allowed, encouraged, or required to vote.(19) The chapter continues with an exhaustive historical treatment of the struggle for black enfranchisement,(20) and closes with a tease -- eight pages on the problem of declining voter turnout, especially at low income levels.

The sad fact is that fifty years of judicial struggle to remove formal barriers to voting have not resulted in a robust level of voter participation. Less than half the eligible electorate voted in the last Presidential election.(21) The turnout for the most recent Congressional elections was thirty-six percent.(22) Often, state and local turnouts are even lower. Worse, turnouts are skewed by race and economic status, so that the voting electorate is much richer and whiter than the nation.(23) Many believe that extremely low levels of voter turnout, especially among the poor, threaten the moral integrity of the democratic process. While it is refreshing to see the issue raised at all, the leading casebook on the law of democracy should spend more time and intellectual energy considering why poor people do not vote, and whether anything can, or should, be done about it.

Chapter Three, entitled "The Reapportionment Revolution" is a thorough treatment of the rise of the one-person, one-vote principle, taking students from Colegrove v. Green(24) through Baker v. Carr(25) and Reynolds v. Sims.(26) The authors perceptively note that the one-person, one-vote principle protects formal voting equality, but is vulnerable to gerrymanders and other techniques that maintain formal equality but erode voting power. The chapter includes thoughtful material on apportioning local government and closes with an excellent...