New York University Public Law and Legal Theory Working Papers

Document Type

Article

Comments

Harvard Law Review, Vol. 118, No. 29, 2004

Abstract

Around the world, courts in the last two decades have increasingly extended constitutional law to oversee the basic structure of democracy itself. This development constitutes a significant transformation in the object of constitutional law - a shift from the conventional individual rights and anti-discrimination focus and toward judicial engagement with the institutions and processes of democratic politics. Whether resolving disputed Presidential elections, evaluating the design of representative institutions, determining the role of political parties, assessing the financing of elections, or even managing the transition from authoritarian to democratic regimes, courts and constitutional law have now become central actors in organizing the way democracy is practiced.

The first aim of this Foreword is to make this transformation fully visible. The Foreword focuses primarily on the United States Supreme Court, where these developments are most pronounced. The Foreword then turns to assessing this new frontier of constitutional law; the Foreword argues that, thus far, courts have done both too little and too much in the way they have constitutionalized the essential structures of democracy. Courts have been insufficiently responsive to the tendency of those holding political power to structure the ground rules of democracy to entrench themselves more deeply in power. At the same time, courts have inappropriately constitutionalized, without sufficient justification, the broad rights of politics - to vote, to speak, to associate - in ways that wrongly limit the ability of democracies to experiment with new ways of organizing democratic politics. Given the disaffection with current forms of democracy expressed in many mature democracies today, this judicial tendency to constitutionalize existing democratic arrangements and freeze them in place threatens the ability of democracies to revise themselves. As courts enter this new domain, the Foreword offers a theoretical and doctrinal framework that defines the role constitutional law ought to play - more expansive in some contexts, less expansive in others - in overseeing the structure of democracy. The Foreword then applies this framework to a number of specific issues: partisan gerrymandering; the representation of diverse groups in political bodies; the legal regulation of political parties; the role of independent bodies to oversee election practices; and campaign financing.

Date of Authorship for this Version

October 2004

Keywords

constitutional law, democracy, supreme court, election law, comparative constitutional law