Institutional Games and the U.S. Supreme Court (Constitutionalism and Democracy)

One of their primary Supreme Court justices have long relied on law clerks to help process the work of the Court. Yet few outside the Court are privy to the behind-the-scenes bonds that form between justices and their clerks. Peppers and Clare Cushman offer an intimate new look at the Bonneau and Cann demonstrate that the move to nonpartisan elections, while it depresses Until President Jimmy Carter launched an effort to diversify the lower federal courts, the U.

But by , over a quarter of sitting judges were women and 15 percent were African American or Hispanic. Underlying the argument made For most of their history, the U.

But as the number of appeals has increased dramatically, while the number of cases heard by the Supreme Court has remained the same, the courts of appeals have become Board of Education, Jeffrey Hockett critiques an array of theories that have arisen to explain it and Supreme Court decision making generally. Americans have been claiming and defending rights since long before the nation achieved independence.

But few Americans recognize how profoundly the nature of rights has changed over the past three hundred years. Written by former law clerks, legal scholars, biographers, historians, and political scientists, the essays in In Chambers tell the fascinating story of clerking at the Supreme Court. In addition to reflecting the personal experiences of the law clerks with their justices, the essays reveal how Over the course of the past decade, the behavioral analysis of decisions by the Supreme Court has turned to game theory to gain new insights into this important institution in American politics.

Game theory highlights the role of strategic interactions between the Court and other institutions in Who gets seated on the lower federal courts and why? Why are some nominees confirmed easily while others travel a long, hard road to confirmation? What role do senators and interest groups play in determining who will become a federal judge? The lower federal courts have increasingly become the Are judges' decisions more likely to be based on personal inclinations or legal authority? The answer, Eileen Braman argues, is both.

Law, Politics, and Perception brings cognitive psychology to bear on the question of the relative importance of norms of legal reasoning versus decision markers' The View of the Courts from the Hill explores the current interactions and relationship between the U.

Institutional Games and the U.S. Supreme Court | The University of Virginia Press

Congress and federal courts using a "governance as dialogue" approach, which argues that constitutional interpretation in the United States is a continuous and complex conversation among all Supreme Court is the quintessential example of a court that expanded its agenda into policy areas that were once reserved for legislatures. The process by which presidents decide whom to nominate to fill Supreme Court vacancies is obviously of far-ranging importance, particularly because the vast majority of nominees are eventually confirmed. But why is one individual selected from among a pool of presumably qualified candidates?

When dissensus occurs in a federal court, however, it raises the question of During a career as both a lawyer and a Supreme Court justice, Benjamin R. Curtis addressed practically every major constitutional question of the mid-nineteenth century, making judgments that still resonate in American law. Aside from a family memoir written by his brother over one hundred years Because the justices of the U. Supreme Court tell us what the Constitution means, they can create constitutional change. For quite some time, general readers who have been interested in understanding those changes have not had a concise volume that explores major decisions in which those changes This collection of essays by leading scholars of constitutional law looks at a critical component of constitutional democracy--judicial independence--from an international comparative perspective.

Russell's introduction outlines a general theory of judicial independence, while the In this comprehensive account of Thomas Jefferson's constitutional thought, David N. Mayer offers a fresh perspective on Jefferson's philosophy of government. Eschewing the "liberalism versus civic republicanism" debate that has so dominated early American scholarship in recent years, Mayer The first book-length study of civil rights litigation from the late s through the early s, Race Relations Litigation in an Age of Complexity fills a void in the scholarly literature on American courts and poltics in the post Brown versus Board of Education era.

This book offers the first comprehensive treatment of the case of the Martinsville Seven, a group of young black men executed in for the rape of a white woman in Martinsville, Virginia. As a result, local accommodations are rendered suspect by the movement toward universalized responses to claims for individual rights of participation. The sweep of rights claims in democratic societies around the world has a corresponding effect on how courts conceptualize core questions of political organization. Let us begin with a rather famous case from the United States. In , Colorado voters approved Amendment 2, a voter-initiated amendment to the Colorado constitution requiring that all matters regarding the legal protections of homosexuals be enacted at the statewide level.

The effect was to disempower local constituencies that might want to pass antidiscrimination ordinances or give certain sexual-orientation minorities some measure of special legal solicitude. If we assume, not unreasonably, that the rights afforded homosexuals remain a fractious issue in American politics, then the question arises at what level of government decision-making should the authority to act lie? The Colorado Supreme Court found a controversial right of democratic appeal to a local, cognizable constituency to be a sufficiently grounded right that its denial to one group but not another would violate equal protection.

Despite Justice Scalia's argument that no right of local autonomy could coexist with the basic precepts of constitutional law, his argument failed to carry the Court. Or so it would appear: While Justice Kennedy struck down the law, his decision to root the prohibition in the Fourteenth Amendment actually conforms to and extends Justice Scalia's core argument. Where Justice Scalia would have denied the claimed right of a local majority to defy the will of a statewide majority, Justice Kennedy repudiated the right of a statewide majority to exercise its will in the face of a national consensus to the contrary.

In effect, this use of federal constitutional law is just the sort of deprivation of autonomy for a statewide majority that the Colorado Supreme Court ruled could not be imposed on a local majority. In other words, Justice Scalia may have carried the day only too well. A variant of the Colorado debate emerges from the question whether a political majority—as opposed to a geographically concentrated majority—should be entitled to the realization of its political preferences.

The classic presentation of the issue in American case law came in Gordon v. Lance, 60 a case from West Virginia dealing with a state requirement that all bond indebtedness receive 60 percent support, as opposed to the normal majority, to go into effect. The Court was willing to entertain a claim that, at some level of supermajority support, the effect would be to empower a holdout minority sufficiently as to threaten democratic governance. However, according to the Court, that possibility did not translate into a guarantee of majority preference as such: But there is nothing in the language of the Constitution, our history, or our cases that requires that a majority always prevail on every issue.

In the context of a bond issue, there is a particular logic to supermajority rules. Since public indebtedness shifts obligations cross-temporally, supermajoritarian restraints may be seen as a way of obligating temporary majorities to submerge their preferences into a broader constituency that includes through the operation of the voting rule a vicarious proxy for the future generations that will bear a substantial part of the obligation. The outcome in Gordon v. Lance thus may be seen as conceptually linked to the decisions of both Justices Scalia and Kennedy in Romer. In each case, the ability to constitute a majority of a subset of the greater polity defined either geographically or temporally is insufficient to sustain an autonomy right absent agreement by the broader constituency.

More problematic for democratic theory are cases in which a supermajority is required for any action at all. At some level, this is simply a recasting of the fundamental tension in democratic constitutionalism. All constitutions constrain temporary majorities, acting through the normal workings of the political process, from achieving their desired objectives. But as indicated in Justice Scalia's invocation of anti-Mormon provisions in the constitutions of several Western states, such prohibitions on majority conduct may be as troubling as they are commonplace.

An interesting example emerged recently in Utah when conservationists attempted to use initiative procedures to limit hunting of the restored cougar population in the state. Proponents challenged this on the grounds that the selective imposition of a heightened threshold inhibited normal political activity, this time in violation of the First Amendment.

Constitutions and rules of procedure routinely make legislation, and thus advocacy, on certain subjects more difficult by requiring a supermajority vote to enact bills on certain subjects. Those who propose, for example, to impeach an official, override a veto, expel a member of the legislature, or ratify a treaty might have to convince two-thirds of the members of one or both houses to vote accordingly.

State constitutions attach supermajority requirements to a bewildering array of specific categories of legislation, including appropriations bills, tax levies, bonding bills, debts, land use regulations, the salaries and discipline of state officials, district formation and redistricting, and judicial administration. A variant on the theme of empowering the aggregate at the expense of the discrete may be found in the questions concerned with the protection of minority representation. All election systems run a risk of excess of majoritarianism if the capture of state institutions by an electoral majority is not tempered, most notably by constitutional constraints.

Many countries confront minority-access issues in connection with matters such as thresholds for success in representation, 66 particularly in nonproportional electoral systems relying on territorial units as the basis for representation. But merely ensuring the election of minority-preferred candidates does not end the tension between minority preferences and the global claims of the political process. Once in office, representatives of minority constituencies may be lured away from their role as promoters of sectional interests by claims for the need to represent the entirety of the polity.

At times, as only recently in Canada, 69 the appeal to an individual legislator to forsake his party platform may serve to salvage a governing coalition on the verge of collapse. More often, however, such entreaties come from a stronger majority seeking to cement its hold on power. The risk of majority capture of rogue representatives is expressly addressed in several countries, particularly in those that are most concerned with protecting minority representation against an overweening majoritarianism.

The provision was an explicit subject of negotiations in the transition from apartheid, reflecting fears that the likely parliamentary majority of the African National Congress could be used to woo minority legislators and overconcentrate political power. Once in office and once its political power was consolidated, however, the ANC used its legislative supermajority to repeal the antidefection provision. Under the new law, defection was permitted so long as the defecting group constituted at least 10 percent of its party's legislative delegation.

This did little to placate critics, since this would pose a very large hurdle to defections from the ANC but would leave defection an individual choice for any party member whose party had fewer than ten members of Parliament. The constitutional amendment prompted a second constitutional challenge, this time a claim that the amendment would violate the principles of party integrity and separation of powers inherent in the entire constitutional structure.

The rights entrenched under section 19 [of the Constitution] are directed to elections, to voting and to participation in political activities. Between elections, however, voters have no control over the conduct of their representatives. They cannot dictate to them how they must vote in Parliament, nor do they have any legal right to insist that they conduct themselves or refrain from conducting themselves in a particular manner. The American and South African examples show the ease of moving the locus of political power up to higher levels of the polity, particularly in cases submitted for judicial review.

The Rerum novarum encyclical provides one of the few overarching theories for the organization of political life through a specific unit of political organization. The papal approach was to establish the default at the level of the sanctity of the individual, of individual labor, and of the family, and to structure a strong presumption against higher levels of political authority that could interfere in those primary relations. It is hard, however, to recognize the modern organization of commercial and productive life in the encyclical's encomium for the primacy of individualized and atomized labor.

Even under European Community law, where the concept of subsidiarity is formally embraced, the devolution of power to the most immediate competent source of authority better explains the structure of economic regulation than it does political decision making. For purposes of answering questions about the exercise of political authority, some greater principle of organization needs to come into play. As revealed by the cases discussed thus far, however, such greater principles are difficult to discern within the law as well.

In American cases addressing the structure of the political process, such difficulties are exposed when one side or other, usually the dissent, accuses the other of resorting to questions of political theory as opposed to law in reaching a desired outcome. Even were courts to admit openly their willingness to be guided by political theory, however, the result would be no more certain. Political theory, it turns out, follows the same basic divide as the judicial decisions. Under long-standing and well-considered principles, it is possible to understand collectivization of decision making at broader levels of the polity as an invitation to wisdom or oppression, as empowering reason or passion, as a source of stability or factional strife.

There is no question that the broad sweep of history has expanded the size of the units of governance. Simply as a matter of military necessity, as recognized by strategic thinkers from Thucydides to Machiavelli and beyond, the need to organize for collective self-defense required centralized state authority and the ability to tax for the general welfare.

That, in turn, required increasing not only the size of the governing unit but an increased democratic commitment to vest consultative powers in the citizenry and its representatives. For political theorists, the challenge of democratic governance became one of harnessing the collective wisdom of the populace. Aristotle in The Politics famously argued that the power of democracy was not limited to the expansion of the claims that may be made on the citizens; that power included, as well, the wisdom that can be harnessed from an expanded polity.

The principle that the multitude ought to be supreme rather than the few best is one that is maintained, and, though not free from difficulty, yet seems to contain an element of truth. For the many, of whom each individual is but an ordinary person, when they meet together may very likely be better than the few good, if regarded not individually but collectively, just as a feast to which many contribute is better than a dinner provided out of a single purse.

For each individual among the many has a share of virtue and prudence, and when they meet together, they become in a manner one man, who has many feet, and hands, and senses; that is a figure of their mind and disposition. At a deeper level, however, the superiority of collective decision making forms the basis for operationalizing theories, most notably Rousseau's, of the common good: The superiority of collective decision making translates smoothly into a preference for higher-level decision making.

Nonetheless, this account does not address itself to the mechanism by which higher-level decision making is thought to draw from collective bodies a measure of wisdom. For example, Avishai Margalit holds out as the key to Spinoza's aspiration to turn the masses away from the hold of emotion and toward the realm of rationality the prospect of engagement in liberal democracy. Many observers of democratic politics worry that voting alone is insufficient to move the citizenry beyond a narrow attachment to base instincts or a simple desire for immediate gratification or out of a response to fear.

The transformative role of broad-based political engagement is most evident in accounts of democracy that focus on the process of deliberation among the citizenry, generally in terms of either procedural norms or the capacity of collective exchange as raising individuals above their narrow station.

Despite the unresolved mechanism for the transformation of self-regarding impulses in the body politic, the collectivizing accounts still share a faith in the ability of broader institutions both to seek more public-regarding policies and to raise the quality of decision making. One mechanism is to leave unresolved whether large-scale engagement truly does transform the individual members of the polity and to vest collective wisdom in the repeated interactions of the legislative process. The individuals may remain parochial, on this view, but the institutional response mediates the failings of individuals.

Alternatively, one can move to an even higher plane of collective wisdom by removing an increasing swath of decision making not only from individuals but from political bodies directly accountable to the citizenry. This recourse comes about as the end effect of expanding the domain of constitutional rights and, beyond that, of international law. If one of the hallmarks of rights jurisprudence is the placement of the best aspirational features of a society at a plane removed from quotidian politics, there is a convergence—even if not perfect—between the centralizing impulses of this strand of political theory and a constitutionalized vision of politics.

It would be shocking if the claimed virtues of collectivized decision making, particularly in furtherance of a general will, survived the onslaughts of the twentieth century unalloyed. And, of course, they have not. A major challenge to collective decision making comes from the argument that group preferences are unstable and subject to agenda manipulation. As initially formulated by Kenneth Arrow, group preferences are subject to cycling, whereby—depending on the manner in which the question is presented—alternative outcomes are possible.

The founding insight of the American democratic experiment was that, if left unchecked, popular governance risked collapsing into oppression by the unreasoned passion of faction. Among the numerous advantages promised by a well constructed union, none deserves to be more accurately developed than its tendency to break and control the violence of faction. Outside the experimental setting, the evidence regarding broadscale collective decision making is more mixed. Certainly, plebiscites have proven a powerful mechanism to arouse mass anger against parliamentary bodies and were central to the rise of fascism in Germany and Italy.

When citizens vote their preferences on a single dimension of choice, the median usually prevails. In general, direct democracy factors the issues, so the median voter should prevail. In contrast, members of legislatures bargain, compromise, and roll logs. In general, indirect democracy splices issues, which should result in bargains or cycles.

Nonetheless, the claim that, absent institutional buffers, collective action risks devolving into the politics of passion and narrow self-interest is well recognized, if not universally accepted. As I have discussed elsewhere, the strong administrative hand overseeing Indian election campaigns is premised on the perceived need to control inflammatory rhetoric and the attendant risk of mass violence—and its constitutionality has been upheld on precisely that basis.

Let us now return to what courts should do when confronted with first-order questions concerning the constitution of the polity. I have suggested, thus far, that courts are likely to have no fixed polestar in either established jurisprudence or in political theory to guide them through these difficult decisions. Let us further accept, at least for predictive purposes, that modern constitutional courts are unlikely to be deterred by some variant of the political-question doctrine. Nowhere is this clearer than in South Africa, where the interim compromise between the African National Congress and the apartheid rulers of the National Party required the immediate creation of a constitutional court and provided that the Court would then have the power of judicial review over the final constitution.

This was to ensure that the document conformed to the negotiated compromise principles—in effect, the power to determine the constitutionality of the constitution itself. By their nature, constitutional courts assume an oversight role with regard to the political process, since, typically, they have no jurisdiction to consider the operation of ordinary legislation. In some sense, all courts confront these issues rather routinely in passing on matters of local governance, wherein an electoral question of the reconstitution of local boundaries presupposes a correct answer as to who should make the decision.

Institutions of local governance, significant thought they may be, do not carry the incidents of sovereignty about them. Even when applied in repugnant fashion, such as to further racial subjugation, the excluded population remains a part of the broader state enterprise, even if denied some of the benefits that might flow from local inclusion.

However courts respond to matters of local governance, there is just no comparing the stakes when the breakup of a country is at issue. There is no escaping the inherent difficulties courts face in superintending the political process. So long as democratic political institutions retain their flexibility to respond to internal domestic pressures, courts are invariably hard-pressed to assess the desirability of any particular accommodation.

The natural inclination is to move to higher levels of principle, often found in the form of categorical rights claims, and to apply those in rather categorical fashion. To give just one example, the German Constitutional Court found itself perilously close to upholding a claim that the Maastricht treaty somehow violated individual voting rights in Germany. Whatever the arguments on behalf of European integration—and there are many—it would be sheer folly to view such a historic move through the distorting prism of individual voting rights.

Of necessity, many claims of democratic engagement are presented, properly, as matters of fundamental rights. The ability to participate regardless of race or gender or ethnicity is the most obvious. These claims are almost invariably addressed by reference to higher authority at either the national level or even at the supranational level. The former are framed primarily in terms of the relation of individual citizens to the state, whereas the latter are concerned with the structure of governmental power.

Drawing this distinction should serve as a caution against the easy adoption of a collectivizing template under the mandate of rights jurisprudence.

The challenge to the complicated Belgian voting system is a useful case in point. Despite my discomfort with consociationalism as political theory, and despite extreme skepticism over its track record in actually deflating regional and ethnic antagonisms, I nonetheless find much to commend in the ECtHR's treatment of the issue, focused as it is on the array of institutional arrangements in Belgium.

An overinfatuation with rights claims risks having the courts assume a universalist assessment of politics, one that is likely to be insensitive to the complicated institutional arrangements that underpin modern democracies. We have long ago crossed the line that would keep courts away from first-order political questions, such as European trade agreements or the dissolution of Canada or the consociational core of Belgium.

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However, backing off from the easy universalism of rights claims may allow courts to extricate themselves from a logic that can be highly destabilizing for otherwise menaced democratic regimes. The cases under consideration in this article present in extreme form the conflict that emerges whenever courts confront the basic institutional arrangements of national politics. They are extreme because judicial intervention is not conditioned by easy recourse to precedent or to an organizing theory of what is the proper allocation of political responsibility among different potential levels of governance.

There are four key justifications for judiciaries to override local political arrangements, which may be applied in cases of high consequence, that nonetheless lack clear doctrinal moorings. This is not the place to develop at length the justification for each of these grounds for judicial intervention. Rather, these grounds are suggested by both the international case law and by the extensive literature on the role of judges in the political process.

However, together they provide a useful buffer against the easy imposition of the one-size-fits-all approaches that disrupt functioning political arrangements. First, there are, of course, actual claims of rights violations. While this article has dealt with the need to avoid easy imposition of a simple rights template on complicated questions of political participation, nonetheless simple franchise rights are at the heart of the democratic enterprise.

The denial of the ability to participate on the basis of race or gender or religion falls within the sort of individual entitlement readily recognized and addressed by courts. There is no shortage of cases from around the world upholding the basic elements of the franchise against discriminatory exclusions. Nevertheless, precisely because individual right-to-vote cases provide the path of least resistance, there is the unmistakable tendency for courts to package complex political questions in the ready formula of rights claims. In the United States, a presumed individual right extended to everyone to equally effective votes became the vehicle of choice for the Court to overcome the political-question barrier from Baker v.

As the German Constitutional Court's willingness to consider a rights challenge to the Maastricht treaty indicates, however, the temptation to see fundamental political arrangements through the prism of individual rights is by no means limited to the U. A second source of judicial authority to disrupt settled political arrangements lies in the obligation to ensure accountability of the process to the electorate. This issue has been at the heart of the arguments about legal regulation of the political process as well as central to the academic debates over the law of democracy for the better part of a decade.

Third, and relatedly, courts may intercede as a backstop against institutional desuetude. The unresponsiveness of an electoral system can be a matter of a lock up of power by self-interested incumbents or of the calcification of institutional arrangements when there is insufficient political will for change. The problem of malapportionment in the U. Carr line of cases, is an example of both the self-interest of the overrepresented rural constituencies and the inertial difficulties of political reform. By contrast, where political arrangements are more recent and reflect a genuine compromise, there should be a much greater presumption of legal tolerance of experimentation.

Belgium , in which the recent negotiations between the various linguistic groups was one of the factors considered by the Court—and properly so. Similarly, Richard Pildes has argued that the U. Supreme Court should take into account the recent high-profile political negotiations over the McCain-Feingold campaign reform bill as a factor in considering the constitutionality of the legislation. Finally, judicial oversight may serve as a protection against opportunism, particularly when political boundaries serve to isolate those who bear the costs from any realistic ability to challenge political decision making occurring elsewhere.

Evidence for this may be found in the U. Constitution's prohibition on interstate compacts that potentially burden nonparticipating states.

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The simplest manifestation of this may come with pollution, as when any state in the Midwest has the power to permit the burning of high-sulfur coal for power, subject only to a requirement of tall smokestacks to send the fumes aloft. For the citizens of the Northeast, by contrast, the consequences of acid rain are not susceptible to any political form of self-protection.

To provide such protection, therefore, is a task that some courts, such as the U. Supreme Court and the European Court of Justice, have read into the role of ensuring economic integration through doctrines such as preemption. As discussed previously, however, the translation from the economic scale of market conduct to the proper form of political organization is far from direct. In sum, even a brief look at the court decision considered in this article shows that it is becoming commonplace for courts to confront questions that were long deemed beyond the realm of possible judicial competence.

Simply as a descriptive matter, courts now routinely engage the complicated world of political power in ways unimaginable a few generations back. In some cases, extreme perhaps, this new state of affairs requires a confrontation with the first-order question of what is the proper form of governance for a nation of multiple peoples living in overlapping lands. Little in either the common law or civil law traditions prepares the field doctrinally for the resolution of such questions. This article is ultimately about some of the difficulties in confronting an area without clear markers in either legal or political theory.

One may hope the article also provides a caution against courts being swept along too easily by the tide of rights claims that were, in many cases, the initial impetus for the courts to enter the political domain. The world of politics is too contested and too precarious for such a simple template.

Oxford University Press is a department of the University of Oxford. It furthers the University's objective of excellence in research, scholarship, and education by publishing worldwide. Sign In or Create an Account. Close mobile search navigation Article navigation. Dis aggregating the political community. The wisdom and passion of the multitudes. Judicial oversight and political experimentation.

Democracy and collective decision making Samuel Issacharoff. Abstract Around the world, traditional barriers to judicial engagement with the structure of democratic politics have fallen remarkably as courts increasingly entertain first-order questions about the structures of governance. A Comparative Exploration Yale Univ. Press ; Charles E. Ehrlich, Democratic Alternatives to Ethnic Conflict: Consociationalism and Neo-Separatism , 26 Brook. In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the member-States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community.

Treaty Establishing the European Community art. More typically, some countries build in limited autonomy guarantees at the local level, without recognizing any right to withdraw from the national confederation. For an elaboration of the idea of retained political power in the context of local governance, see Clayton P. Canada recognizes a complicated federal structure that reserves important powers to the provinces within the overall constitutional framework and specifies specific powers held by the federal government.

Subject to this each Province was to retain its independence and autonomy and to be directly under the Crown as its head. By and large, the international law consensus on the right of self-determination, to the extent there is one, is limited to situations of conquest or colonization. Formal mechanisms of constitutional amendment are a relatively new process in Canada. Prior to the constitutional reorganization in , amendments of the Canadian Constitution were formally made by the U.

Parliament as amendments to the British North America Act. Such amendments were typically approved only upon request endorsed by concurrent majorities of the House of Commons and the Senate, generally after obtaining a substantial degree of provincial consent. See generally Peter W. Hogg, Constitutional Law of Canada 61—76 3d ed. For the classic account of consociationalism and its defense as a mechanism for stabilizing deeply conflicted societies, see Lijphart , supra note 1.

This is the Shaw line of cases, named after the first Supreme Court case to announce a distinct constitutional concern over the use of excessive racial considerations in drawing territorial districts. Reno Shaw I , U. Hunt Shaw II , U. Cromartie Cromartie I , U. Cromartie Cromartie II , U. Press describing German preferential treatment and promotion of the Flemish and Dutch speaking populations of Belgium as opposed to the Francophone population. For critical accounts of this initial move, see Michael W. McConnell, The Redistricting Cases: Original Mistakes and Current Consequences , 24 Harv.

Pol'y ; Guy-Uriel E. Charles, Constitutional Pluralism and Democratic Pluralism: Reflections on the Interpretive Approach of Baker v. See Samuel Issacharoff, Pamela S. Pildes, The Law of Democracy: Legal Regulation of the Political Process 3d ed.

Constitutionalism and Democracy

Ball concerned a challenge to the Salt River Project Agricultural Improvement and Power Districtin Arizona, which controlled the water distribution to about half the population of the state, including the growing cities of the state, such as Phoenix. For a more mechanical application of formal voting rights law to strike down experimentation with parental engagement in local school administration, see Fumarolo v.

Chicago Board of Education, N. The discussion is taken from Evans v. Romer , P. There is no particular political valence to debates over local versus higher-level control over decisions such as the rights of homosexuals. The same day I first presented this paper in Jerusalem there was a protest by local authorities claiming an autonomy right to ban a gay pride demonstration. Their claim was that the more conservative Jerusalem local government should have the ability to determine the level of support for gay rights in a manner distinct from the national consensus.

Ironically, one American court has seized on the capacity of local majorities to fashion new rules as grounds for affirming a local antihomosexual ordinance. At issue in Cincinnati was a local prohibition that deprived homosexuals of recourse to local antidiscrimination laws to claim affirmative action or any of the more expansive remedies associated with current equal protection law. The court ultimately upheld the challenged ordinance on the grounds that, since the prohibition did not operate at the statewide level, it could be overridden at the statewide level and hence did not foreclose claims for redress within the political process.

City of Cincinnati, F. Pitkin, The Concept of Representation Univ. In , the faltering Liberal government of Prime Minister Paul Joseph Martin received a brief reprieve from falling as the result of the defection of an opposition member from the even more weakened Conservative Party. My thanks to Colin Feasby for alerting me to the Canadian example. New Zealand similarly prohibited party switching by members of Parliament in the Electoral Integrity Amendment Act, , but the prohibition was statutory and expired by design in Lessons From an Unwritten Constitution , 54 Am.

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The role of this constitutional provision is discussed in the landmark case in which the South African Constitutional Court reviewed the entire constitutional compact for conformity to the negotiated principles that ended apartheid. My account of the initial constitutional issues in South Africa may be found at Constitutionalizing Democracy in Fractured Societies, 82 Tex.

United Democratic Movement v. This robust constitutionalization is addressed critically in Richard H.