Law Commons^™

Partitioning And Rights: The Supreme Court’S Accidental Jurisprudence Of Democratic Process, James A. Gardner

Journal Articles

In democracies that allocate to a court responsibility for interpreting and enforcing the constitutional ground rules of democratic politics, the sheer importance of the task would seem to oblige such courts to guide their rulings by developing an account of the nature and prominent features of the constitutional commitment to democracy. The U.S. Supreme Court, however, has from the beginning refused to develop a general account – a theory – of how the U.S. Constitution establishes and structures democratic politics. The Court’s diffidence left a vacuum at the heart of its constitutional jurisprudence of democratic process, and like most vacuums, …

The Incompatible Treatment Of Majorities In Election Law And Deliberative Democracy, James A. Gardner

Journal Articles

Deliberative democracy offers a distinctive and appealing conception of political life, but is it one that might be called into service to guide actual reform of existing election law? This possibility seems remote because election law and deliberative democracy are built around different priorities and theoretical premises. A foundational area of disagreement lies in the treatment of majorities. Election law is structured, at both the legislative and constitutional levels, so as to privilege majorities and systematically to magnify their power, whereas deliberative democracy aims at privileging minorities (or at least de-privileging majorities). The main purpose of the election law now …

Election Law As Applied Democratic Theory, James A. Gardner

Journal Articles

Democracy does not implement itself; a society’s commitment to govern itself democratically can be effectuated only through law. Yet as soon as law appears on the scene significant choices must be made concerning the legal structure of democratic institutions. The heart of the study of election law is thus the examination of the choices that our laws make in seeking to structure a workable system of democratic self-rule. In this essay, written for a symposium on Teaching Election Law, I describe how my Election Law course and materials focus on questions of choice in institutional design by emphasizing election law’s …

Anonymity And Democratic Citizenship, James A. Gardner

Journal Articles

Many aspects of modern democratic life are or can be performed anonymously – voting, financial contributions, petition signing, political speech and debate, communication with and lobbying of officials, and so forth. But is it desirable for citizens to perform such tasks anonymously? Anonymity frees people from social pressures associated with observation and identifiability, but does this freedom produce behavior that is democratically beneficial? What, in short, is the effect of anonymity on the behavior of democratic citizens, and how should we evaluate it?

In this paper, I attempt a first pass answer to these questions by turning to both democratic …

The Dignity Of Voters—A Dissent, James A. Gardner

Journal Articles

Since the waning days of the Burger Court, the federal judiciary has developed a generally well-deserved reputation for hostility to constitutional claims of individual right. In the field of democratic process, however, the Supreme Court has not only affirmed and expanded the applications of previously recognized rights, but has also regularly recognized new individual rights and deployed them with considerable vigor. The latest manifestation of this trend appears to be the emergence of a new species of vote dilution claim that recognizes a constitutionally grounded right against having one’s vote “cancelled out” by fraud or error in the casting and …

Anti-Regulatory Absolutism In The Campaign Arena: Citizens United And The Implied Slippery Slope, James A. Gardner

Journal Articles

Perhaps the most striking feature of the Supreme Court’s constitutional campaign jurisprudence is its longstanding, profound hostility to virtually any government regulation whatsoever of campaign speech and spending. Such an approach is highly unusual in constitutional law, which typically tolerates at least some level of regulatory intervention even with respect to strongly protected rights. The Court’s behavior in this respect is consistent with – and, I argue, is best understood as – the kind of behavior in which a court engages when it fears a slide down a slippery slope. But what lies at the bottom of the slope? And …

What Is "Fair" Partisan Representation, And How Can It Be Constitutionalized? The Case For A Return To Fixed Election Districts, James A. Gardner

Journal Articles

A recent outpouring of public and academic criticism of gerrymandering raises difficult questions about when and under what circumstances the representation of political parties and their supporters can be considered fair. The difficulty is not, as Justice Kennedy recently suggested, that we lack consensual standards for evaluating the fairness of partisan representation. Such standards exist, but they tend to be subverted by the use of territorial districts. This occurs routinely because party and territory are conflicting and for the most part incommensurable principles upon which to found a system of legislative representation. The real question raised by gerrymandering is therefore …