ARTICLE
Democracy and collective decision
making
Samuel Issacharoff*
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. This article explores judicial responses
to a particularly vexing problem: who should be the polity that decides first-order
political issues?
The most famous such judicial encounter is that of the Canadian Supreme Court in a
case involving whether Quebec had a right to secede based on a referendum of its own
population. The discussion places the Canadian Court’s resolution of that issue in the
context of how numerous courts around the world, including the United States Supreme
Court, have addressed similar questions, though generally in cases not so freighted as
the potential dissolution of the national federation.
Concluding from a review of such cases that courts forced (or willing) to engage such
issues are likely to find little mooring for their resolution in either legal doctrine or
political theory, the article warns that courts should be wary of following their impulses
to treat such first-order conflicts about the structure of political systems as familiar
claims of individual rights, even if that is the posture in which the issues are litigated.
Much of the literature on the legal regulation of voting turns on the issue of
who holds the franchise and what institutional arrangements should control
the selection of officeholders. Ultimately, democracy is the process of aggregating preferences revealed as votes. At some level, the majority should prevail and, at some correspondingly high level of abstraction, there must be set
institutional arrangements that confer legitimacy on the manner in which
the collective choice is adduced. Within this framework there are a huge
number of moving parts, dealing with the basic rights of participation and
moving outward to the complicated role of political parties, campaign finance,
rules governing the aggregation of votes, and an expanding universe of strategic interactions between all of these. Taken together, these make up the
* Reiss Professor of Constitutional Law, New York University School of Law. I benefited from comments on an
early version of this paper at the Conference on Democracy and Rationality at Hebrew University in Jerusalem
and at a faculty workshop at NYU School of Law. I am indebted to specific comments from Erin Delaney,
Cynthia Estlund, Clayton Gillette, Roderick Hills, Richard Pildes, Jeremy Waldron, and Katrina Wyman. Ian
Samuel and Josh Stillman provided critical research assistance on this project. Email: issacharoff@exchange.
law.nyu.edu
© The Author 2008. Oxford University Press and New York University School of Law.
All rights reserved. For Permissions, please email: [email protected]
I•CON, Volume 6, Number 2, 2008, pp. 231–266 doi:10.1093/icon/mon003
Advance Access publication March 28, 2008
231
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complicated law of democracy, as it both channels and informs the ability of
the polity to reach decisions on governance within the bounds of political
legitimacy.
The question of political legitimacy provides an interesting divide in the theoretical and legal literature. There are two dominant approaches for assessing
the success of a democracy in terms of basic political legitimacy. Democracy
may be thought of as primarily forward looking, offering to the desires of the
electorate the prospect of representation. Or it can be defined retrospectively,
by its ability to enforce accountability through the capacity to hold governors
to task for their actions, most critically by removing them from office for failure
to discharge the public interest. The prospective view evinces a greater concern for minority access in the process of ensuring some representation for all
sectors of society. The retrospective view is more concerned with the capacity
of majorities to form and reform, compelling government to anticipate and
respect shifting political sentiments.
Both the prospective and retrospective views of democracy assume, as they
must, the preexistence of a fixed polity against whose political aspirations the
scope of democratic legitimacy can be measured. Not surprisingly, then, neither has a great deal to say about the first-order challenge of determining what
is the polity. The question of defining the political constituency arises in two
characteristic forms, each coming about in response to two different challenges.
First, there are the claims of a subsection of the population to determine its own
political affairs by redefining itself outside the broader political order, as with
separatist claims for national independence or, at a lower level, with claims for
municipal deannexations. Alternatively, there are challenges to political compromises that condition political participation on defined membership in subordinate constituencies. One characteristic form of this alternative is formal
power sharing among specific groups in the society—defined in the political
science literature as consociationalism1—in which the ability of any individual
to participate is mediated through his or her membership in a designated subgroup of the population. By contrast, there can be a number of institutional
arrangements—federalism is a key example—that assign participation rights
to geographical regions and then funnel rights of participation through these
arrangements.
Each of these potential challenges pushes the boundaries of claims that are
handled through the normal workings of democracy itself. It is difficult to
resolve satisfactorily within the political process challenges to the integrity of
that process. For example, a claimed right of secession by a minority population will hardly be ameliorated if rejected by the majoritarian will of the parliament that may subsume the minority. But when presented to a court, where
1
See generally AREND LIJPHART, DEMOCRACY IN PLURAL SOCIETIES: A COMPARATIVE EXPLORATION (Yale Univ.
Press 1977); Charles E. Ehrlich, Democratic Alternatives to Ethnic Conflict: Consociationalism and
Neo-Separatism, 26 BROOK. J. INT’L L. 447 (2000).
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such first-order claims increasingly end up, the difficulty of identifying controlling first principles emerges just the same. The legal rendition of such ultimate
questions suffers from the same defect as the attempted political resolutions.
Most legal questions are presented interstitially, something which has the salutary effect of limiting the disruptions caused by any particular ruling.
However, every so often, questions arise that push further than what is comfortably handled within the confines of legal doctrine, even in the common law
setting in which the scope of judicial inquiry is far-reaching.
This article deals with some of the more difficult and perhaps unresolvable
issues that emerge concerning the question of what is the proper composition
of the polity for settling deeply contested issues, particularly as they are presented to courts, which are more and more willing—and, occasionally, specifically tasked—to engage such issues. All modern democracies channel an
individual’s democratic right to participate in self-governance through complicated institutional arrangements. We have come a long way since the Athenian
assembly of all citizens or even the New England town meeting that comfortably encompassed all franchise holders in direct governance without any
intermediaries. What happens, then, when the fundamental institutional
arrangements of a democracy are themselves challenged? What are the principles that emerge from either legal doctrines or even political theory that should
guide the resolution of such claims?
The discussion will begin with a series of cases in which autonomy rights
are claimed by a subset of the population demanding the right to determine
independently their own legal and social arrangements vis-à-vis the broader
community. The most compelling and most famous of these cases addresses
whether the people of Quebec had a right to secede from Canada, or to seek to
do so, through a direct plebiscite of the Québécois.2 In Quebec and in each of
the other examples, the judicial resolution is unsatisfying precisely because of
the apparent lack of a controlling principle for determining what is the right
level of aggregation for collective decision making.
The second part of this article, then, places the difficulty of defining the polity, properly understood, in the broader context of the long-standing theoretical uncertainty about the nature of collective decision making. The literature
on what happens when the people gather to express their will runs the gamut.
On the one hand, we believe intuitively that two heads are better than one, and
we can extrapolate from that to a much broader reservoir of knowledge when
the many decide rather than the few. On the other hand, we know that mobs
can act in destructive ways and to an extent that individuals acting alone could
never achieve. And we suspect that as soon as a lot of uninformed or uninterested citizens come together, they are likely to be manipulated by the most selfinterested or the most unscrupulous among them.
2
Reference re Secession of Quebec, [1998] 2 S.C.R. 217.
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Assuming the contradictory intuitions about collective wisdom are all, to
some measure, true, and assuming that empirical proof regarding which surmise is likely to prevail is either hard to come by or likely to be inconclusive, our
next step is to ask how democracies should respond to claims for collective
autonomy in making fundamental decisions. The last part of this article suggests that, despite the increasing judicial confrontation with such first-order
issues, there is not likely to be a satisfactory response. Rather, democracies
have developed a series of temporizing institutional arrangements that avoid
these ultimate issues, the particular forms of which are likely to be historically
contingent. Rules governing decision making, such as separation of powers,
federalism, and bicameralism, all combine to limit the presentation of ultimate
issues regarding the legitimacy of the political order. Together, they speak to a
need for caution in the exercise of judicial review and of the need for a set of
limiting principles to guide courts in engaging first-order questions of the constitution of the body politic.
1. (Dis)aggregating the political community
The most dramatic confrontations with the question of what is the proper definition of the polity emerge in challenges to the continued existence of a nation
as an ongoing political entity. Such claims to a right of autonomy by national
subgroups, often denominated a right of national self-determination, emerge
with some regularity in international law. Most notably, in the immediate
postcolonial period following World War II and, again, in the aftermath of the
breakup of the Soviet Union, secessionist groups proclaimed a right of independence based on broadly stated claims to a democratic entitlement to selfdetermination.3 While long-standing grievances against political or economic
subordination resonated widely, particularly against the notoriously oppressive
ancien régimes, the claim of an inherent and inescapable democratic right to
withdraw from national and constitutional arrangements ultimately could not
be sustained. All nation-states require the ability to govern cross-temporally
and to shift resources from one region to another to meet all sorts of needs. No
nation could command its citizens’ loyalty if the beneficiaries of today could
readily walk away should the tide of benefits and costs flow in another direction tomorrow. Yet, despite the inability to frame such a demand for autonomy
in the sweeping and categorical language of inherent democratic rights, the
question of enforced aggregation remains a troubling one for democracies.
Characteristic of the problems addressed in this article is the demand for the
judicial enforcement of a right to autonomy, usually taking the form of
the claim of a democratic right by a subset of the population in determining
its own destiny. While this is often posed, directly, as a right of democratic
3
See generally TONY JUDT, POSTWAR 701–713 (Penguin 2005); CHRISTOPHER HEWITT & TOM CHEETHAM,
ENCYCLOPEDIA OF MODERN SEPARATIST MOVEMENTS (ABC-Clio, Inc. 2000).
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self-determination, I will also turn to some examples generally not conceived of
in this way to help illustrate the issue.
1.1. Devolving power
[A] community of a higher order should not interfere in the internal life of a
community of a lower order, depriving the latter of its functions, but rather
should support it in case of need and help to co-ordinate its activity with the
activities of the rest of society, always with a view to the common good.4
The principle of subsidiarity, enshrined in Catholic doctrine by Pope Leo XIII
in 1891 in the famous encyclical Rerum novarum, has emerged as a mainstay
of European Community law, particularly as regards administrative regulation.5 The basic principle of subsidiarity in EU law is intended to limit the reach
of Brussels by creating a presumption of local regulatory autonomy, or, at the
very least, a presumption in favor of national regulation as opposed to EU commands. For its enthusiasts, “subsidiarity is celebrated as a check on the monopolistic tendencies of the modern state; it is a plea for localism and doing things
at the lowest possible level.”6
In EU law, the concept of subsidiarity makes the most sense when applied to
economic matters. In some areas, such as the application of domestic competition (antitrust) law to conduct that extends beyond national borders, local
authority must yield to EC-wide enforcement in order to confront the perceived
problem at the scale at which it presents itself. But even in its initial full articulation in Rerum novarum, the concept of subsidiarity was premised on the primacy of the direct relation between an individual and the fruits of his labor.
The encyclical was intended as a rejoinder to the intellectual challenge of
Marxism and collectivism. As formulated, subsidiarity admitted of governmental activity only interstitially to tax and to provide for collective security to the
extent the individual alone or through family was unable to do so.
At the level of politics, however, the limiting effects of subsidiarity, even if
accepted as a controlling principle, apply poorly. Political viability on the domestic
4
UNITED STATES CONFERENCE OF CATHOLIC BISHOPS, CATECHISM OF THE CATHOLIC CHURCH, pt.3, §1, ch. 2, at
1883 n.7 (2d ed. 1994), available at http://www.usccb.org/catechism/text/pt3sect1chpt2.
htm#7.
5
The Maastricht Treaty’s subsidiarity provision reads:
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. 3b, Nov. 10, 1997, 1997 O.J. (C340) 3. See
generally ANTONIO ESTELLA, THE EU PRINCIPLE OF SUBSIDIARITY AND ITS CRITIQUE 74–179 (Oxford Univ.
Press 2002).
Patrick McKinley Brennan, Harmonizing Plural Societies: The Case of Lasallians, Families, Schools—
and the Poor, 45 J. CATH. LEGAL STUD. 131, 133 (2007).
6
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front can coexist easily with transnational economic alliances. The benefits of
the European market are available to small nations, albeit at some cost to the
customary prerogatives of sovereignty, such as coining one’s own currency or
imposing tariffs at the national borders. Integration into the common market of
Europe allows even small states to engage readily with markets beyond their
political control. At the level of defining a right of autonomy to establish the political and social mores of a society, something beyond viability must be the test.
There are some historical examples of a constitutional commitment to rights
of autonomy. The former Soviet Union granted a formal right of secession to the
diverse Soviet republics, a right whose attempted invocation undoubtedly would
have resulted in the deployment of Russian tanks as seen in Budapest in 1956
and Prague in 1968. More sincerely, the post-Soviet Czechoslovakian constitution granted formal autonomy rights to the Slovakian half of the country—a
right that was ultimately acted upon in the formation of two separate countries.
The question of empowering smaller constituencies is posed, however, in
countries in which there is no precommitment to an autonomy right and in
which viability does not seem a meaningful constraint.7 The question becomes
one of whether or not the subordinate unit of governance holds a “trump” that
may be exercised on contested matters of sufficient importance to put at risk
the joint enterprise.8 This is exactly the situation in Canada with the demands
for independence for Quebec. Here, there is no claim that Canada has ever recognized a right of separation,9 nor is there a meaningful question of the ability
of Quebec to survive independently. There are, to be sure, questions about the
willingness of the Québécois ultimately to wean themselves from the positive
transfer payments from the Canadian union. But in the aftermath of NAFTA
and the opening of North American markets generally, an independent Quebec
would no doubt be politically and economically viable, if perhaps poorer.
7
More typically, some countries build in limited autonomy guarantees at the local level, without
recognizing any right to withdraw from the national confederation. For example, article 28(2) of
the German Grundgesetz, which guarantees, even against action by the Länder, that local governments have “the right to regulate all local affairs on their own responsibility, within the limits
prescribed by law.” GRUNDGESETZ (GG) art. 28(2), available at http://www.bundestag.de/htdocs_e/
parliament/function/legal/germanbasiclaw.pdf (official English translation of 2000).
8
For an elaboration of the idea of retained political power in the context of local governance, see
Clayton P. Gillette, The Exercise of Trumps by Decentralized Governments, 83 VA. L. REV. 1347
(1997).
9
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. See In re Initiative & Referendum Act (Manitoba), [1919] A.C. 935, 942 (Manitoba
P.C.) (explaining that the basic constitutional premise was “not to weld the Provinces into one, nor
to subordinate Provincial Governments to a central authority, but to establish a central government in which these Provinces should be represented, entrusted with exclusive authority only in
affairs in which they had a common interest. Subject to this each Province was to retain its independence and autonomy and to be directly under the Crown as its head.”).
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1.1.1. The Quebec reference on secession
In 1998, at the height of one of the periodic upsurges in separatist sentiment in
Quebec, the Canadian Supreme Court was presented with a question as direct
as it was bedeviling: “[W]e are asked to rule on the legality of unilateral secession ‘under the Constitution of Canada.’ ”10 The matter was admittedly one of
first impression and, since the existence of Canada could well have been in the
balance, the Court faced the daunting prospect of ruling on a matter of last
impression. The Court quickly discovered that the constitutional structure of
Canada did not explicate the exact source of popular consent to governance;
rather, “[t]he representative and democratic nature of our political institutions
was simply assumed.”11 Without a clear mandate on the central question of
the democratic premises of the state, the Court had to acknowledge the compelling claim of Quebec, at least initially: “The argument that the Constitution
may be legitimately circumvented by resort to a majority vote in a provincewide referendum is superficially persuasive, in large measure because it seems
to appeal to some of the same principles that underlie the legitimacy of the
Constitution itself, namely, democracy and self-government.”12
The general appeal to democracy could not resolve the question of separation without first resolving the problem that “there may be different and equally
legitimate majorities in different provinces and territories and at the federal
level.”13 There were no mediating principles in Canadian constitutional law or
in general democratic principles that could resolve the apparent conflict should
a majority of the Québécois opt for independence while a majority of the broader
Canadian constituency (including the Québécois) voted to preserve the territorial integrity of Canada. Rather, Canadian politics had long subsumed a form
of Québécois separate representation through the reigning Liberal Party
requirement that the leadership of the party alternate between French and
English speakers and the party’s practice of setting informal quotas for cabinet
seats between the two groups.14 Not only does Canadian politics strongly recognize the need for regional representation but Quebec has greater representation in the Senate than do other provinces; moreover, one-third of the justices
of the Supreme Court are from Quebec.15 In addition, given the strong concessions toward regionalism on matters such as language, and given that overall
10
Reference re Secession of Quebec, [1998] 2 S.C.R. 217.
11
Id. at 253.
12
Id. at 259.
13
Id. at 255.
14
Brendan O’Leary, Debating Consociational Politics: Normative and Explanatory Arguments, in FROM
POWER SHARING TO DEMOCRACY: POST CONFLICT INSTITUTIONS IN ETHNICALLY DIVIDED SOCIETIES 3, 16 (Sid Noe
ed., McGill-Queen’s Univ. Press 2004).
15
Twenty-two of the one hundred and five Canadian Senators represent Quebec and three of the
nine sitting Canadian Supreme Court Justices are members of the Quebec Bar.
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economic benefits flowed to rather than from Quebec, there were no readily
credible claims of oppression of the sort that may have sustained independence
demands in the Baltics under the Soviets or in the broader regions of Kurdistan,
for example.16
A formalist resolution could have been crafted—perhaps by focusing narrowly on the mechanisms of constitutional amendment along the lines of what
will be discussed, subsequently, in the South African treatment of its legislators’ ability to defect to the opposition party. The Canadian Court could have
construed the dissolution of Canada as a form of constitutional amendment
requiring the full mandates accompanying any constitutional alteration. The
effect would have been not only to move the level of decision making to the
national level but to trigger the supermajority requirements for constitutional
change.17 That presumably would have answered the challenge presented in a
particularly unsatisfactory way: a minority constituency feeling aggrieved and
unable to achieve its aims at the majoritarian level of national politics could
only have appealed to the supermajoritarian constraints of the larger body politic. Such a course may have resolved the constitutional question but not the
broader question of democratic legitimacy.
At the end of the day, the Canadian Court found a halfway measure that
granted separatist claims the right to initiate a dialogue on dissolution of the
country. In what is known as the “clear majority/clear question” requirement,
the Court granted to a majority of the Québécois the right to initiate a process
of political renegotiation whose outcome could be secession, although those
terms remained unspecified:
A referendum undoubtedly may provide a democratic method of ascertaining the views of the electorate on important political questions on
a particular occasion. The democratic principle identified above would
demand that considerable weight be given to a clear expression by the
people of Quebec of their will to secede from Canada, even though a referendum, in itself and without more, has no direct legal effect, and could
not in itself bring about unilateral secession.18
16
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. See Patrick Macklem, Militant
Democracy, Legal Pluralism, and the Paradox of Self-Determination, 4 INT’L J. CONST. L. (I•CON) 488,
505 (2006).
17
Formal mechanisms of constitutional amendment are a relatively new process in Canada. Prior
to the constitutional reorganization in 1982, amendments of the Canadian Constitution were formally made by the U.K. 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., Carswell 1992).
18
2 S.C.R. at 265.
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The effect was to create a species of “Canadian secession clause,” to use Sujit
Choudhry’s formulation,19 although one that was not judicially enforceable.
The Supreme Court’s gambit of subgroup rights to dialogue over a process of
dissolution was never put to the test. The last referendum in Quebec occurred
in 1995 and lost by less than a percentage point. Even here, there was considerable debate over the outcome, since the referendum prevailed strongly
among the francophone Québécois but was defeated by the overwhelming
opposition of the anglophone minority in Quebec, many of whom were recent
arrivals from other parts of Canada, together with those known as allophones,
namely, recent immigrants to Canada whose native language is neither English
nor French and who now represent over 10 percent of the population of
Quebec. For the past decade, while the main secessionist force, the Parti
Québécois, has been a constant presence in Canadian politics its political fortunes have dwindled.
Although it has not been put to the test in a genuine effort at secession, the
Canadian Court’s analysis is significant for another reason, one with greater
pertinence for this article. The question referred for judicial review was
whether there was a right in either Canadian constitutional law or, at a higher
level of authority, in international law that mandated the ability of a regional
majority to compel secession. Rather than turn to a rights claim abstracted
from politics, the Court turned to the nature of Canadian political institutions,
finding an inextricable link between democracy and federalism. Claims of
right regarding the political process must necessarily be mediated through the
institutional structures of governance. At the very heart of a constitutional
framework is the ability to “provide for a division of political power that allocates political power amongst different levels of government.”20 In rejecting
the narrow rights claim, therefore, the Court concluded that the ultimate
principle of constitutional settlement “would be defeated if one of those democratically elected levels of government could usurp the powers of the other
simply by exercising its legislative power to allocate additional political power
to itself unilaterally.”21
1.1.2. Consociationalism and formal devolution
Ultimately, the Canadian Supreme Court’s decision represents a hybrid resolution of the problem of secession. The Court recognized a right of regional consultation which in turn might, depending on the outcome of that consultation,
19
This formulation is from Sujit Choudhry, Popular Revolution or Popular Constitutionalism? Reflections on the Constitutional Politics of Quebec Secession, in THE LEAST EXAMINED BRANCH: THE ROLE OF LEGISLATURES IN THE CONSTITUTIONAL STATE 480, 487 (Richard W. Bauman & Tsvi Kahana eds., Cambridge
Univ. Press 2006).
20
2 S.C.R. at para. 74.
21
Id.
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trigger a more formal set of autonomous regional rights that exist independent
of the wishes of the national polity. A more extreme version of such assignment
of rights to substrata of the polity is found in consociational systems, political
arrangements in which the central divisions of the society are reflected in separate formalized representation.22 The American use of geographic districts
drawn to ensure minority representation may be thought of as a weak form of
consociationalism, one that sparked significant constitutional controversy
when implemented most aggressively in the 1990s.23
In those societies that tried to stabilize internal division through formal
power sharing—examples include Lebanon, Cyprus, and Sierra Leone— there
had to be a formal recognition of the divisions within the polity and of the rights
of the subunits to make claims against both other groups and the nation as a
whole. Moreover, such power-sharing arrangements were almost invariably
accompanied by strong measures of effective autonomy for the different factions of the society, much like what might emerge in Iraq were some form of
tripartite division of the territory and oil revenues to take hold. But the inescapable result of such arrangements is to assign each individual’s citizenship in
the first instance to some subset of the population and to recognize, formally,
that the capacity of the citizen to interact with the broader polity will be mediated through the corresponding institutional arrangements.
An interesting example comes from Belgium where, in a series of constitutional reforms in 1970 and 1980, the country was divided into four languagebased regions, reflecting the country’s historic linguistic divisions.24 These
reforms were intended to defuse long-standing communal tensions in Belgium,
which had been exacerbated by the differential treatment afforded to the different linguistic groups by German occupation forces during World War II.25 The
reforms directed that each municipality “shall belong to one of these” language-based alignments and that the voting in each region would be assigned
22
For the classic account of consociationalism and its defense as a mechanism for stabilizing deeply conflicted societies, see LIJPHART, supra note 1.
23
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. See Shaw v. Reno (Shaw I), 509 U.S. 630 (1993); Shaw v. Hunt (Shaw II), 517 U.S. 899
(1996); Hunt v. Cromartie (Cromartie I), 526 U.S. 541 (1999); Easley v. Cromartie (Cromartie II),
532 U.S. 234 (2001).
24
For an account of the complex institutional and political compromises reflected in Belgium’s
elaborate consociational arrangement, see Wilfried Swenden, What—If Anything—Can the European Union Learn from Belgian Federalism and Vice Versa?, 15 REG’L & FED. STUD. 187 (2005).
25
See JUDT, supra note 3, at 710; Martin Conway, Justice in Postwar Belgium: Popular Passions and
Political Realities, in THE POLITICS OF RETRIBUTION IN EUROPE: WORLD WAR II AND ITS AFTERMATH 133 (István
Deák, Jan T. Gross & Tony Judt eds., Princeton Univ. Press 2000) (describing German preferential
treatment and promotion of the Flemish and Dutch speaking populations of Belgium as opposed to
the Francophone population).
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to those citizens who chose to affiliate with the dominant language group of
the designated town or region.26 Unfortunately, to assign representation to one
group for a designated region is to deny it to another group, and this prompted
a major constitutional challenge, presented ultimately to the European Court
of Human Rights (ECtHR) as Mathieu-Mohin and Clerfayt v. Belgium.27 For
highly technical reasons, the practical effect of the language-group classification was that individuals who had declared themselves to belong to a languagegroup constituency different from the controlling bloc in a particular locality
could be prevented from voting for local government officials. As a result, there
were citizens who were unable to participate in elections for officials with
power over such key matters as regional planning, public budgets, and zoning
policies.28 The effect of this removal from electoral participation was most acute
in the suburbs of Brussels, which were in the Flemish-designated north but
heavily French in population. In such cases, a citizen who publicly declared
herself affiliated with the French voting constituency—by holding national
office or declaring herself a candidate for office, for example—would be prohibited from participating in local elections that were restricted to the Flemish voting bloc. Tip O’Neill’s famous aphorism that all politics is local notwithstanding,
the practical consequence was that engagement in national politics as part of
a French-language political party meant removal from participation in matters
that dealt with day-to-day life.
The fact that citizens of a municipality could not vote for local officials
because of their language-group status demonstrates a more extreme version of
the divisions presented in the demand of Quebec for separate voting rights with
regard to its claim for secession. In the Belgian case, the division had already
been codified in strict limitations on the ability to participate as an equal member of the polity. It was asserted that the franchise restrictions violated the guarantee in protocol no. 1, article 3, of the European Convention on Human Rights,
providing for “the free expression of the opinion of the people in the choice of the
legislature,”29 and, even more broadly, the right secured by the preamble to the
convention of the maintenance of “an effective political democracy.”30
For the dissenting justices, those who would have struck down the
language-based assignment of voting rights, the matter was easily handled as
26
See Mathieu-Mohin & Clerfayt v. Belgium, 10 Eur. H.R. Rep. 1, 8 (1988).
27
10 Eur. H.R. Rep. 1 (1988).
28
Id. at 2.
29
Protocol to the European Convention for the Protection of Human Rights and Fundamental
Freedoms, Mar. 20, 1952, 213 U.N.T.S. 262, available at http://conventions.coe.int/Treaty/en/
Treaties/Html/009.htm.
30
European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4,
1950, 213 U.N.T.S. 221, available at http://conventions.coe.int/Treaty/en/Treaties/Html/005.
htm.
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a violation of individual rights of representation: “The practical consequence is
that unless they vote for the Dutch-speaking candidates, the French-speaking
voters in this district will not be represented on the Flemish Council.”31 A rather
accessible rights claim presented itself, one made all the more compelling by
the fact that—based on a significant divide in Belgian society—some members
of a community were permitted unfettered voting rights on local matters while
others could vote only by compromising their ability to affect the broader
national parliament.
More interesting for the purposes of this article, however, is the reasoning of
the majority of the Court, which, in order to rule for Belgium, had to accept
that country’s ability to define formally the voting rights of its citizens in a way
that could be circumscribed by an individual’s language affinity. In this regard,
the Belgian case resembles the Canadian dispute over Quebec’s claimed right of
autonomy. In each case, a democratic principle could yield either a centralizing perspective, organized around a universalist rights claim, or it could yield a
contextualized account of institutional structures that sought to limit the
power of centralized decision making. As expressed by the majority of the
ECtHR, “In any consideration of the electoral system in issue, its general context must not be forgotten.”32
The key holding of the ECtHR was to endorse as a legitimate democratic
objective an institutional structure that tries to find a mediating equilibrium
between popular sovereignty and the risk that a narrow majority could claim
too much power. The Court’s analysis of the “general context” recognized that
the unique Belgian voting rules were aimed at preventing the centralization of
power and the ability of an emergent majority to expand its decision-making
dominion:
The 1980 Special Act, however, fits into a general institutional system
of the Belgian State, based on the territoriality principle. . . . The aim is to
defuse the language disputes in the country by establishing more stable
and decentralised organisational structures.33
Certain features stand out in the ECtHR opinion that provide important signposts for judicial oversight. First, the Court is not flummoxed by the presentation
of a perfectly plausible claim of an individual right of participation. Certainly,
there is a compelling argument by Lucienne Mathieu-Mohin and Georges
Clerfayt, in their individual capacities, that their inability to participate in local
elections based on their language-group affiliation is troubling. But this is offset
by a second consideration that the entire consociational structure “emerges
31
10 Eur. H.R. Rep. at 13 (Cremona, Bindschedler-Robert, Bernhardt, Spielmann & Valticos, JJ.,
dissenting).
32
Id. at para. 57.
33
Id.
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from the debates in the democratic national Parliament”34 in which MathieuMohin and Clerfayt—as well as all other Belgian citizens—were able to participate on a free and equal basis. Third, the Court looks to “the massive majorities
achieved in favour”35 of the proposed political accommodation as evidence that
there is no perceived sense of oppression resulting from the operation of the
unique voting arrangements. Put another way, the Court discounted two individuals’ specific claims of not being able to vote in municipal elections when set
against the broad support the voting rules had across all sectors of the population. Finally, the fact that the voting rules were part of a recent, public negotiation gave them enhanced credibility. The voting rules are not the dead hand of
the past entrenched against change but, rather, the product of recent political
compromise directed at the unique frailties of Belgium’s historic divisions.
The context-specific considerations would be blunted under the rights claim
accepted by the dissent. Rights claims tend to invoke a higher authority in the
form of national or international law, together with a strong dose of inherent
and inviolable entitlements sounding in the traditions of natural law. While a
rights claim is typically associated with the protection of individuals against
the collective, the source of the law sustaining that claim may have two paradoxical and, in part, countervailing effects. First, the tendency toward higher
authority is likely to empower broader constituencies at the expense of subgroups, defined either across ethnic or geographic divides. Second, precisely
because context-sensitive local accommodations tend to be idiosyncratic, the
homogenizing effect of a rights template threatens the political accommodations epitomized by Belgium.
1.1.3. Revisiting one person, one vote
The Canadian and Belgian examples provide the conceptual counterpoint to
the centralizing impulses that we turn to in the next section, with cases from
the United States and South Africa. Whereas these latter cases, which look,
first and foremost, to a rights claim, turn generally to high-level fundamental
declarations as a mechanism for resolving a core question of what is the right
level of democratic decision making, the former look to institutional structures
that represent a guarantee of divided authority. As will become apparent, the
judicial confrontation with difficult core questions of democratic legitimacy
rarely finds a ready-made set of answers. Virtually all of the opinions under
consideration could find countervailing arguments and sources of authority
that could have compelled an alternative result. But the Canadian and Belgian
opinions are particularly instructive because neither could find a controlling
principle in either national law or higher levels of democratic theory to resolve
the ultimate issue of who is the polity that should decide.
34
Id.
35
Id.
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In contrast with the nuanced Canadian and Belgian decisions, U.S. case law
has been dominated by a rights approach in which the rights issue is seen as a
dichotomous variable, one that is either in play in full or not at all. The initial
move belonged to Justice William Brennan, who famously chose to evade the
political-question doctrine in Baker v. Carr by attacking the structural defects
in American democracy through the template of equal protection law.36
According to Brennan, “judicial standards under the Equal Protection Clause
are well developed and familiar,” and, by extension, required no particular
refining for application in the political arena.37 The equal protection approach
made some sense given the large disparities in voting power in the early apportionment cases.38 Less successful were subsequent applications in which, for
example, minute differences in voting power among voters in different districts
were used to try to cabin the effects of partisan gerrymandering.
But even at the time of the initial reapportionment revolution, the mechanical
application of the rights-infused, one-person–one-vote standard was troubling.
A key case in point is Lucas v. The Forty-Fourth General Assembly of the State
of Colorado,39 a case with remarkable parallels to Mathieu-Mohin and Clerfayt
v. Belgium. At issue in Lucas was a very recent amendment to the Colorado constitution (1962, just two years before the Court’s decision) that passed with strong
support across the state and altered the apportionment of the state legislature. The
new plan divided the state into equipopulous districts for the lower house and provided for county-based representation for the upper chamber. The plan added
additional senate districts in urbanized Denver but preserved representation for
counties whose population could not keep up with urban growth. The express purpose was to ensure consideration of rural concerns at a time when this ranching
and mining state for most of its history was undergoing significant urbanization.
The Court confronted a voting arrangement that bore none of the indicia of
oppression or historic indifference to the claims of distinct sectional interests.
As the Court noted, the plan received majority support in every county in the
state, including the urban counties,40 and, given its recent adoption, “the plan
at issue did not result from prolonged legislative inaction.”41 For the U.S.
36
Baker v. Carr, 369 U.S. 186 (1962).
37
Id. at 226. For critical accounts of this initial move, see Michael W. McConnell, The Redistricting
Cases: Original Mistakes and Current Consequences, 24 HARV. J.L. & PUB. POL’Y 103 (2000); Guy-Uriel
E. Charles, Constitutional Pluralism and Democratic Pluralism: Reflections on the Interpretive Approach
of Baker v. Carr, 80 N.C. L. REV. 1103 (2002).
38
See SAMUEL ISSACHAROFF, PAMELA S. KARLAN & RICHARD H. PILDES, THE LAW OF DEMOCRACY: LEGAL REGULAPOLITICAL PROCESS 175 (3d ed., Foundation 2007) (describing disparities in voting power
of 23 to 1 in Baker and much higher in some of the accompanying cases of the period).
TION OF THE
39
377 U.S. 713 (1964).
40
See id. at 758 (Stewart, J., dissenting).
41
Id. at 730.
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Supreme Court, as for the dissenters on the ECtHR, political accommodations
that evidenced no sectional animus or oppression simply did not matter. The
categorical template was unyielding:
A citizen’s constitutional rights can hardly be infringed simply because a
majority of the people choose that it be. We hold that the fact that a challenged legislative apportionment plan was approved by the electorate is
without federal constitutional significance, if the scheme adopted fails to
satisfy the basic requirements of the Equal Protection Clause. . . .42
None of the signposts considered in Mathieu-Mohin were deemed of constitutional significance. Once measured against the one-person–one-vote yardstick, it did not matter that the apportionment measure was adopted recently,
that it was subject to revision through the initiative process, that the lower
chamber provided for perfect equipopulation distributions, and that there was
no sign of malice toward or subordination of any discrete section of the
population.
Nor has the Court been receptive to the argument that lower-level accommodations could pass constitutional muster so long as there was accountability in a higher-level, democratically accountable legislature—again another
argument accepted by the ECtHR in Mathieu-Mohin. In Kramer v. Union Free
School District No. 15,43 for example, the Court struck down a New York State
provision that restricted the franchise in community school-district elections
to local taxpayers and parents of enrolled students. Coming at the height of the
Court’s commitment to the expansion of the franchise, any restriction on the
ballot triggered the withering strictures of strict scrutiny. The New York law
was not the product of a local majority seeking to shut out a disfavored minority or some vestige of an antiquated voting rule. Rather, it was a recently
adopted state law that sought to give greater control over school direction to
the constituents most directly affected—the taxpayers who funded the schools
and the parents who were the end users of their services. Instead, the question
presented by Chief Justice Earl Warren was only whether an individual claim
for participation could be found, and, if so, whether the presumptively fatal
review under strict scrutiny could be withstood:
[T]he deference usually given to the judgment of legislators does not extend to decisions concerning which resident citizens may participate in the
election of legislators and other public officials. Those decisions must be
carefully scrutinized by the Court to determine whether each resident citizen has, as far as is possible, an equal voice in the selections. Accordingly,
when we are reviewing statutes which deny some residents the right to
vote, the general presumption of constitutionality afforded state statutes
42
Id. at 736–737.
43
395 U.S. 621 (1969).
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and the traditional approval given state classifications if the Court can conceive of a “rational basis” for the distinctions made are not applicable.44
There was little attention given to Justice Potter Stewart’s dissenting claim
that the excluded potential voters had ample access to the statewide electoral
processes that were ultimately responsible for the school-board-election system. In Justice Stewart’s words, “[t]here is simply no claim whatever here that
the state government is not ‘structured so as to represent fairly all the people,’
including the appellant.”45 The dissent’s argument was taken up, some years
later, by Justice Lewis Powell in a case involving limited franchise rights for the
key water district of Arizona.46 The majority in Ball v. James, in keeping with
the categorical approach taken in Kramer, found that “special purpose” districts were entirely apart from the obligation to enfranchise the citizenry and
that, accordingly, the on/off switch of voting rights would remain disengaged.47
Justice Powell’s concurrence accepted the limitation on claimed voting rights
but did so for reasons of institutional compromise and the ultimate accountability of the entire arrangement to the voters of the state:
Our cases have recognized the necessity of permitting experimentation
with political communities. . . . As this case illustrates, it may be difficult
to decide when experimentation and political compromise have resulted
in an impermissible delegation of those governmental powers that generally affect all of the people to a body with a selective electorate. But state
legislatures, responsive to the interests of all the people, normally are better qualified to make this judgment than federal courts. . . . 48
In the years since Baker v. Carr and its accompanying cases, the doctrine of
one-person, one-vote has hardened and subverted the prospects for sensible
political compromises. To take but one example, the Court struck down a complicated political arrangement in New York that allowed for the creation of a
specialized body to deal with taxing and zoning issues. The fatal defect in Board
of Estimate v. Morris,49 according to the Court, was that the board included the
borough presidents of the five New York boroughs, each of whom was elected
44
Id. at 627–628.
45
Id. at 639 (Stewart, J., dissenting).
46
Ball v. James, 451 U.S. 355 (1981).
47
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.
48
Id. at 373. 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, 566 N.E.2d 1283 (Ill. 1990).
49
489 U.S. 688 (1989).
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by a different number of citizens. It did not matter that the board corresponded
to the compromise that created the modern City of New York in 1898 and that
it was contemporaneous with the founding concern of disproportionate political power for Brooklyn and Manhattan.50 Nor did it matter that the Board of
Estimate may have been the protection needed to hold Staten Island within the
broader municipal arrangement. Numerical disparities in per-individual voting strength for any elected body were sufficient to offend the Constitution.
1.2. Empowering the broader constituency
At the other end of the spectrum from the willingness to tolerate institutional
arrangements born of political compromise is the far more common impulse of
courts to assume the propriety of centralized decision making, as is evident in
American one-person–one-vote case law. This may seem a paradoxical claim in
light of the greater attention to federalism concerns in the U.S., South Africa,
and, given the commitment to subsidiarity, in European Community law. Yet,
properly conceptualized, this is the effect of the emergence of rights jurisprudence in the post–World War II era. Rights claims enshrine certain entitlements
for the citizenry vis-à-vis the body politic and move the claims up to a higher
level of law generation, either at the national constitutional level or beyond in
multinational organizations or in international law commitments to human
rights. When enforced by courts, such rights claims impose some level of uniformity on all political subdivisions over which the court has authority. 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.
1.2.1. Local majorities
Let us begin with a rather famous case from the United States. In 1992,
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?
As litigated in the Colorado courts,51 the state asserted that Amendment 2
“serves to deter factionalism through ensuring that decisions regarding special
50
See Richard Briffault, Voting Rights, Home Rule, and Metropolitan Governance: The Secession of Staten Island as a Case Study in the Dilemmas of Local Self-Determination, 92 COLUM. L. REV. 775 (1992).
51
The discussion is taken from Evans v. Romer, 882 P.2d 1335 (Colo. 1994), aff’d, 517 U.S. 620 (1996).
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protections for homosexuals and bisexuals are made at the highest level of government” and that, as a result, “the deeply divisive issue of homosexuality’s
place in our society does not serve to fragment Colorado’s body politic.”52
According to the state, Amendment 2 furthers this end by eliminating “city-bycity and county-by-county battles over this issue.”53
The Colorado Supreme Court rejected the claimed state interest and found,
instead, that Amendment 2 denied a “fundamental right to participate equally
in the political process” by depriving one discrete group of the ability to find legislative support at the local level: “Amendment 2 alters the political process so
that a targeted class is prohibited from obtaining legislative, executive, and
judicial protection or redress from discrimination absent the consent of a majority of the electorate through the adoption of a constitutional amendment.”54
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.55
While not as explosive as questions of a right to secede, this claimed right of
electoral appeal prompted a blistering retort by Justice Antonin Scalia, dissenting in the Supreme Court’s review of the Colorado court in Romer v. Evans.56 For
Justice Scalia, prohibiting local constituencies from regulating the morals of
their citizens is not the exception but the norm in a constitutional democracy:
[T]here is a much closer analogy, one that involves precisely the effort by
the majority of citizens to preserve its view of sexual morality statewide,
against the efforts of a geographically concentrated and politically powerful minority to undermine it. The Constitutions of the States of Arizona,
Idaho, New Mexico, Oklahoma, and Utah to this day contain provisions
stating that polygamy is “forever prohibited.”57
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 the majority struck down
Amendment 2, it did so on the grounds that the Colorado law’s “sheer breadth
is so discontinuous with the reasons offered for it that the amendment seems
52
Id. at 1348.
53
Id.
54
Id. at 1338–1339.
55
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.
56
517 U.S. 620 (1996).
57
Romer v. Evans, 517 U.S. at 648 (Scalia, J., dissenting).
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inexplicable by anything but animus toward the class it affects.”58 According
to Justice Anthony Kennedy, the underlying animus toward homosexuals as a
class violated the equal protection clause of the Constitution, though perhaps
only for the perceived irrationality of the regulation. 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.59
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 1971 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: “any
departure from strict majority rule gives disproportionate power to the minority. 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.”61
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
58
517 U.S. at 631.
59
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. Equality Found. of Greater Cincinnati,
Inc. v. City of Cincinnati, 128 F.3d 289 (6th Cir. 1997).
60
403 U.S. 1 (1971).
61
Id. at 6.
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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. The legislature responded preemptively
by amending the state constitution (by an appropriate two-thirds majority of
each chamber) to stipulate that any initiative regulating the “taking” of wildlife
would require a two-thirds majority, as opposed to the normal simple majority.
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.62 The Tenth Circuit, in a thoughtful opinion by Judge
Michael McConnell, could not find a mediating principle that would allow such
a challenge without sweeping aside all efforts to raise the threshold of political
decision making to high levels of popular approbation, even if in direct violation of the will of a direct majority of the affected population:
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.63
Accordingly, the Court concluded that, “if it violates the First Amendment
to remove certain issues from the vicissitudes of ordinary democratic politics,
62
Initiative & Referendum Inst. v. Walker, 450 F.3d 1082 (10th Cir. 2006), cert. denied, 127 S.Ct.
1254 (2007).
63
450 F.3d at 1100–1101.
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constitutions themselves are unconstitutional.”64 That became the crux of
the problem: it is difficult to root any commitment to direct majoritarianism in
any democracy operating under constitutional constraints. Inescapably,
“Constitutions are about the restriction of government power.”65 Even a majority at the level of the entire polity cannot overcome that restraint.
1.2.2. Represented constituencies
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.67 In most instances, the debates center on the requirements for attaining office for candidates preferred by minority constituencies. 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. This is, of course, the claim that representatives must serve, above all, the “general good, resulting from the general reason
of the whole,” as famously expressed by Edmund Burke in his “Speech to the
Electors of Bristol.”68 Descending a bit from Burke’s broad invocation of the
general good, the issue comes up, most often, in the more prosaic form of a
governing coalition capturing a member of the opposition by offering avenues
of personal advancement. At times, as only recently in Canada,69 the appeal to
an individual legislator to forsake his party platform may serve to salvage a
64
Id. at 1100.
65
ANDRÁS SAJÓ, LIMITING GOVERNMENT 49 (Central European Univ. Press 1999).
66
See, e.g., Kieran Williams, Judicial Review of Electoral Thresholds in Germany, Russia, and the Czech
Republic, 4 ELECTION L.J. 191, 192–195 (2005) (discussing the German Constitutional Court’s longstanding approval of electoral thresholds).
67
See, e.g., the Shaw line of cases, supra note 23.
68
EDMUND BURKE, THE WORKS OF THE RIGHT HONORABLE EDMUND BURKE 447 (George Bell & Sons 1902) (1801).
The opposite claim is that representatives must act “in the interest of the represented, in a manner
responsive to them.” HANNAH F. PITKIN, THE CONCEPT OF REPRESENTATION 209 (Univ. of Cal. Press 1967).
69
In 2005, 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. See Conservative Stronach Joins Liberals, CBC NEWS, May 18, 2005,
available at http://www.cbc.ca/canada/story/2005/05/17/stronach-liberals050517.html. My
thanks to Colin Feasby for alerting me to the Canadian example.
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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.
Countries such as India, Namibia, and South Africa formalized such antidefection concerns through legal prohibitions on what is known as “floor walking.”70 In South Africa, the initial constitution required a member of parliament
to resign if he or she attempted to switch parties. 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.71
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.72 The Court rejected
the challenge, both on the procedural ground that the mechanisms of
constitutional amendment had been adhered to but, more significantly, on a
deeper theory that representation after the election is not a right that attaches
to a subset of voters:
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,
70
New Zealand similarly prohibited party switching by members of Parliament in the Electoral
(Integrity) Amendment Act, 2001, but the prohibition was statutory and expired by design in
2005. See Mathew S. R. Palmer, Using Constitutional Realism to Identify the Complete Constitution:
Lessons From an Unwritten Constitution, 54 AM. J. COMP. L. 587, 610 n.64 (2006).
71
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. See In re Certification of the Constitution of the Republic
of South Africa, 1996 (4) SALR 744 (CC).at para 181 n.136 and accompanying text (considering
whether the antidefection principle was unconstitutional). My account of the initial constitutional
issues in South Africa may be found at Constitutionalizing Democracy in Fractured Societies, 82 TEX.
L. REV. 1861 (2004).
72
United Democratic Movement v. The President of the Republic of South Africa 2003 (1) SA 495
(CC).
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nor do they have any legal right to insist that they conduct themselves or
refrain from conducting themselves in a particular manner.73
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.74 The reasons for the ease of moving up the scale of political
constituencies, though beyond the scope of this article, might be traced to the
prevalence of rights claims in providing as an increasing staple in the diets of the
world’s judiciary.75 Seemingly of necessity, rights claims move the source of the
entitlement to higher levels of political command, either at the constitutional
level, domestically, or at the transnational level, through appeals to European
Community law, for example, or to international law directly.76 For international
judiciaries, accustomed as they have become to rights claims that move the locus
of legal authority further and further up the ladder of collectivization, the move
to expanding definitions of the polity appears to come with little resistance.
2. The wisdom and passion of the multitudes
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
73
Id. at 49.
74
This robust constitutionalization is addressed critically in Richard H. Pildes, Foreword: The Constitutionalization of Democratic Politics, 118 HARV. L. REV. 28 (2004).
75
The attempt to protect the domain of politics is central to Jeremy Waldron’s critique of judicial
review. For example, he argues that legislation best preserves the unique virtue of political contestation, given that “the community for which the law is made is essentially plural, and in its essence
incapable of representation by a single voice.” JEREMY WALDRON, LAW AND DISAGREEMENT 60 (Oxford
Univ. Press 1999). Even with regard to the most contested rights issues, Waldron strongly argues
for what he terms the dignity of legislation. For a critical overview of the role of rights claims in
dampening the ardor of the masses on an international scale, see RAN HIRSCHL, TOWARDS JURISTOCRACY
(Harvard Univ. Press 2005).
76
For an informed discussion of the informal pathways among peripatetic judges of Supreme and
Constitutional courts and how these have contributed to the formation of an international “common law” of rights jurisprudence, see ANNE-MARIE SLAUGHTER, A NEW WORLD ORDER (Princeton Univ.
Press 2004).
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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.77 Daniel Ortiz
colorfully refers to this as the “Got Theory?” challenge to disputed claims.78
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.
2.1. Centralization and state authority
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
See, e.g., Holder v. Hall, 512 U.S. 874, 893 (1994) (Thomas, J., concurring) (“[O]nly a resort to political theory … can enable a court to determine which electoral systems provide the ‘fairest’ levels of
representation…”); Reynolds v. Sims, 377 U.S. 533, 620 (1964) (Harlan, J., dissenting) (denouncing
the majority for ruling “on the basis of political judgments which they are incompetent to make”);
Lucas v. Forty-Fourth Gen. Assembly of State of Colo., 377 U.S. 713, 747-48 (1964) (Stewart, J., dissenting) (criticizing the majority for measuring the “demands of the Constitution … not by what it
says, but by their own notions of wise political theory”); Colegrove v. Green, 328 U.S. 549, 552 (1946)
(Frankfurter, J., plurality opinion) (dismissing challenge to Illinois’s districting scheme because the
issue was of a “peculiarly political nature and therefore not meet for judicial determination”).
77
78
Daniel R. Ortiz, Got Theory?, 153 U. PA. L. REV. 459 (2004).
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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.79
This is what Jeremy Waldron terms the “doctrine of the wisdom of the multitude.”80 More colloquially, such aggregated wisdom may be revealed in the capacity of the studio audience on Who Wants to Be a Millionaire to be correct an
impressive 91 percent of the time in its collective judgment.81 As pithily expressed
by The New Yorker writer James Surowiecki, it is “as if we’ve been programmed to
be collectively smart.”82 More formally, the Condorcet jury theorem establishes
that so long as individuals have a better than even chance of being right, a group
majority is more likely to choose the better of two alternatives.83 As a technical
matter, this is simply the application of the law of large numbers whereby multiple
iterations are likely to drive out random deviations. 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: “[I]f it is not impossible
for a [private] will to agree on some point with the general will, it is at least impossible for the agreement to be lasting and constant; for the [private] will tends, by its
very nature, to partiality, while the general will tends to equality.”84
The superiority of collective decision making translates smoothly into a preference for higher-level decision making.85 Most famously, James Madison’s
79
ARISTOTLE, THE POLITICS 74–75 (Benjamin Jowett & Thomas Twining trans., Viking Press 1957)
(350 B.C.E).
80
Jeremy Waldron, The Wisdom of the Multitude: Some Reflections on Book 3, Chapter 11 of Aristotle’s
Politics, 23 POL. THEORY 563 (1995).
81
BRYAN CAPLAN, THE MYTH OF THE RATIONAL VOTER 8 (Princeton Univ. Press 2007).
82
JAMES SUROWIECKI, THE WISDOM OF CROWDS 11 (Random House 2004).
83
MARIE-JEAN-ANTOINE-NICOLAS DE CARITAT, MARQUIS DE CONDORCET, ESSAI SUR L’APPLICATION DE L’ANALYSE À
[ESSAY ON THE APPLICATION OF ANALYSIS TO THE
PROBABILITY OF DECISIONS RENDERED BY A PLURALITY OF VOICES] (photo. reprint 1972) (1785).
LA PROBABILITÉ DES DÉCISIONS RENDUES À LA PLURALITÉ DES VOIX
84
JEAN-JACQUES ROUSSEAU, THE SOCIAL CONTRACT OR PRINCIPLES OF POLITICAL RIGHT 15 (G.D.H. Cole trans.,
Kessinger 2004) (1762). For an extensive discussion connecting the Condorcet jury theorem to
Rousseau’s general will, see Bernard Grofman & Scott L. Feld, Rousseau’s General Will: A Condorcetian Perspective, 82 AM. POL. SCI. REV. 567 (1988).
85
It also was applied by Condorcet himself strongly to advocate unicameralism since, in his view,
“increasing the number of legislative bodies could never increase the probability of obtaining true
decisions.” MARQUIS DE CONDORCET, Letters from a Freeman of New Haven to a Citizen of Virginia on the
Futility of Dividing the Legislative Power Among Several Bodies: Letter Four, in CONDORCET: FOUNDATIONS OF
SOCIAL CHOICE AND POLITICAL THEORY 292, 329 (Iain McLean & Fiona Hewitt eds., Fiona Hewitt trans.,
1994), quoted in Nicholas Quinn Rosencrantz, Condorcet and the Constitution: A Response to The Law of
Other States, 59 STAN. L. REV. 1281, 1293 (2007). Even more vituperatively, Condorcet characterized
bicameral legislatures as a “fear of innovation, one of the most fatal scourges of the human
race.” Quoted at id.
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advocacy of the “extended republic” was based on the role of broad political constituencies as capable of warding off the evils of sectionalism and factionalism.86
This argument is then reproduced as a core feature of the contemporary defense
of legislative primacy over judicial review. Thus, Waldron argues that legislation
draws both its legitimacy and its strength from the fact that “the community for
which the law is made is essentially plural, and in its essence incapable of representation by a single voice.”87 The legislative process claims its primacy from its
ability “to gather together large numbers of people who are not necessarily on
casual ‘speaking terms’ with one another, and who participate in legislative
deliberations not as individual conversationalists but as representatives. . . .”89
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.89 Unresolved, however, is whether democracy as such is robust enough
to prevent passion from overwhelming mass behavior, even in a society
vested with a rights culture. 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.90 As captivatingly expressed by the Indian Supreme Court,
in upholding strict governmental controls on inflammatory electoral speech,
voting provides the perfect medium by which to “whip up low hard instincts
and animosities or irrational fears between groups to secure electoral
victories.”91
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.92 The
86
THE FEDERALIST NO. 10, at 63–65 (James Madison) (Jacob E. Cooke ed., Wesleyan Univ. Press 1961).
87
WALDRON, DISAGREEMENT, supra note 75.
88
Id. at 70.
89
See Avishai Margalit, The Lessons of Spinoza, N.Y. REV. BOOKS, Apr. 12, 2007, at 71–72, available
at http://www.nybooks.com/articles/20072.
For example, Jeremy Waldron contrasts the transformative role played by “structured politics”
in the legislative setting for Hannah Arendt with the isolation of the voting booth (“this booth has
room for only one”), in which little more than narrow self-interest is likely to be manifest. Jeremy
Waldron, Arendt’s Constitutional Politics, in THE CAMBRIDGE COMPANION TO HANNAH ARENDT 201 (Dana
Villa ed., Cambridge Univ. Press 2001).
90
91
92
Bukhari v. Mehra, (1975) S.C.R. 453.
See generally David M. Estlund, Who’s Afraid of Deliberative Democracy?, 71 TEX. L. REV. 1437,
1440–1441 (1993).
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transformative capacity of exchange receives particular play in appeals to
deliberative polling or even deliberation days, although these tend to focus on
small group exchanges informing the broader polity.93 However, on most
accounts, there is little precision to just how the transformative effect of democratic participation is to be realized. Even champions of deliberative theories of
democracy may rely on more elusive concepts of “idealized” deliberation,
rather than commit themselves, necessarily, to the outcome of actual
exchanges.94
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.
2.2. Capture and extremism
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.95 Thereafter, Arrow’s theorem
then became the focal point for contemporary public-choice analysis according to which the ability to obtain gains from the indecision of the majority
93
See James S. Fishkin & Robert C. Luskin, Bringing Deliberation to the Democratic Dialogue, in THE
POLL WITH A HUMAN FACE 3 (Maxwell McCombs & Amy Reynolds eds., Lawrence Erlbaum 1999);
BRUCE ACKERMAN & JAMES S. FISHKIN, DELIBERATION DAY (Yale Univ. Press 2004); JAMES S. FISHKIN, THE
VOICE OF THE PEOPLE (Yale Univ. Press 1997).
94
See, e.g., Joshua Cohen, Deliberation and Democratic Legitimacy, in DEMOCRACY 87 (David Estlund
ed., Blackwell 2002).
95
KENNETH J. ARROW, SOCIAL CHOICE AND INDIVIDUAL VALUES (2d ed., Yale Univ. Press 1970).
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serves as an invitation to self-interested minorities to capitalize on the intensity
of their self-regarding preferences.96 Under this view, the uncertainties of collective decision making undermine rather than reinforce the capacity for
aggregated wisdom.97 In such circumstances, the public-choice critique may
be pushed further than simply the problem of incoherence. When rational
indifference infects the majority, Mancur Olsen cautions that “[t]here is a systematic tendency for exploitation of the great by the small.”98
Equally challenging to the proclaimed “wisdom of the multitudes” is an
argument that contests not the inability of the majority will to prevail in the
political arena but the integrity of the majority will itself. 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. Madison’s Federalist No. 10 formulated the issue crisply:
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. . . . [B]y a faction, I understand
a number of citizens, whether amounting to a majority or a minority of
the whole, who are united and actuated by some common impulse of
passion, or of interest, adversed to the rights of other citizens, or to the
permanent and aggregate interests of the community.99
As developed by De Tocqueville and John Stuart Mill, passion was most dangerous when it consumed the mass of the population, what De Tocqueville
would term the “tyranny of the majority.”100 For Mill, this collective will “to
oppress a part of their number” had to be “included among the evils against
which society requires to be on its guard.”101 More recently, Cass Sunstein has
96
JAMES M. BUCHANAN & GORDON TULLOCK, THE CALCULUS OF CONSENT: LOGICAL FOUNDATIONS OF CONSTITUDEMOCRACY §§ 3.2.3–3.2.8 (1999), available at http://www.econlib.org/library/Buchanan/
buchCv3Contents.html.
TIONAL
97
WILLIAM H. RIKER, LIBERALISM AGAINST POPULISM: A CONFRONTATION BETWEEN THE THEORY OF DEMOCRACY
THEORY OF SOCIAL CHOICE (W.H. Freeman & Co. 1982).
AND THE
98
MANCUR OLSON, JR., THE LOGIC
(Harvard Univ. Press 1971).
99
OF
COLLECTIVE ACTION: PUBLIC GOODS
AND THE
THEORY
OF
GROUPS 29
THE FEDERALIST NO. 10, AT 40-41 (James Madison) (Terence Ball ed., 2003).
100
ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 292 (Gerald Bevan trans., Penguin Classics 2003) (1835).
101
JOHN STUART MILL, ON LIBERTY 62 (Gertrude Himmelfarb ed., Penguin Classics 1982) (1859). Paradoxically, Mill also recognized not only the possibility but the need for a nation to be forged through the suppression of obstacles to national unity, including minority languages and other attributes hostile to the
development of a national identity. As he expressed it, “When proper allowance has been made for geographical exigencies, another more purely moral and social consideration offers itself. Experience proves
that it is possible for one nationality to merge and be absorbed in another: and when it was originally an
inferior and more backward portion of the human race the absorption is greatly to its advantage.” JOHN
STUART MILL, CONSIDERATIONS ON REPRESENTATIVE GOVERNMENT 313 (Henry Regnery 1962) (1861).
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argued strongly that, contrary to deliberativist claims about the virtues of collective decision making, the outputs of group interactions may be more
extreme—instead of more reasoned—than individual judgments. Summarizing
a host of empirical studies, Sunstein concludes, “The central empirical finding
is that group discussion is likely to shift judgments toward a more extreme point
in the direction indicated by the median of predeliberation judgments.”102
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.103 At the same time,
Switzerland—a bastion of moderation—relies extensively on direct voting of
the citizens on public policy, a feature that some have claimed contributes to a
sense of civic engagement.104 Indeed, Robert Cooter argues that direct democracy best avoids the capture problem of public-choice theory and rewards temperate decision making:
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.105
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.106
3. Institutional temporizing
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,
102
Cass R. Sunstein, Deliberative Trouble? Why Groups Go to Extremes, 110 YALE L.J. 71, 118 (2000).
103
See generally RICHARD J. EVANS, THE COMING OF THE THIRD REICH (Penguin 2004); ADRIAN LYTTELTON,
THE SEIZURE OF POWER: FASCISM IN ITALY 1919–1929 (Routledge 2004).
104
See, e.g., BRUNO S. FREY & ALOIS STUTZER, HAPPINESS AND ECONOMICS: HOW THE ECONOMY AND INSTITUTIONS
AFFECT HUMAN WELL-BEING (Princeton Univ. Press 2002) (discussing positive effects of direct democracy on citizens in Switzerland). See also Caroline J. Tolbert & Daniel A. Smith, Representation and
Direct Democracy in the United States, 42 REPRESENTATION 25 (2006) (arguing that the initiative and
referendum processes increase civic engagement in American states based on empirical research).
105
ROBERT D. COOTER, THE STRATEGIC CONSTITUTION 232–233 (Princeton Univ. Press 1999).
106
Samuel Issacharoff, Fragile Democracies, 120 HARV. L. REV. 1405 (2007).
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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.107 To a great extent, the creation of strong constitutional courts in
emerging democracies is an indication that they are expected to play a more
direct role in superintending the institutions of democracy and, particularly,
in defining the limits of democratic decision making. 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.108
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.109 But it is not just newly minted constitutional courts that must deal with first-order questions of the political organization of the polity. 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
107
For a historic account of the development and erosion of the political-question doctrine, see
Rachel Barkow, More Supreme than Court? The Fall of the Political Question Doctrine and the Rise of
Judicial Supremacy, 102 COLUM. L. REV. 237 (2002). For a contrast between the jurisdictional limit
on what courts may hear and the prudential limit on what courts should entertain, see Samuel
Issacharoff, Political Judgments, 68 U. CHI. L. REV. 637 (2001). Many commentators have noted the
increased willingness of courts around the world to entertain claims regarding the operation of the
political process on terms that would previously have been deemed beyond judicial scrutiny. See,
e.g., John Ferejohn, Judicializing Politics, Politicizing Law, 65 LAW & CONTEMP. PROBS. 41, 61 (2002);
Russell A. Miller, Lords of Democracy: The Judicialization of “Pure Politics” in the United States and
Germany, 61 WASH. & LEE L. REV. 587, 588–592 (2004). For a broader overview, see C. Neal Tate,
Why the Expansion of Judicial Power, in THE GLOBAL EXPANSION OF JUDICIAL POWER 27, 27 (C. Neal Tate &
Torbjörn Vallinder eds., New York Univ. Press 1995).
108
For a discussion of the negotiated transition and the role of the South African Constitutional
Court, see Samuel Issacharoff, Constitutionalizing Democracy in Fractured Societies, 82 TEX. L. REV.
1861, 1870–1883 (2004); Ziyad Motala, Constitution-Making in Divided Societies and Legitimacy:
Lessons from the South African Experience, 15 TEMP. POL. & CIV. RTS. L. REV. 147 (2005). See also In re
Certification of the Constitution of the Republic of South Africa, supra note 71.
109
For a critical assessment of the tendency to turn quickly to constitutional principle by specialized constitutional courts, see Victor Ferreres Comella, The Consequences of Centralizing Judicial Review in a Special Court: Some Thoughts on Judicial Activism, 82 TEX. L. REV. 1705, 1730 (2004)
(arguing that specialized constitutional courts will tend to be relatively less deferential because “[a]
constitutional court is not likely to earn its own space in the institutional system if it regularly
upholds the statutes that are challenged before it”).
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to who should make the decision.110 Nonetheless, there is relatively little at
stake in these quotidian instances of how to define the polity. 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,111 the excluded population remains a part of the
broader state enterprise, even if denied some of the benefits that might flow
from local inclusion.112
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.113 It is hard to imagine a more difficult political decision than to cede some of the historic badges of sovereignty by entering a
Europe-wide political and monetary union. 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
110
These questions can be routinely posed by annexations and deannexations of particular areas
into municipal zones. Thus, by and large, most courts in the U.S. have upheld limiting the franchise based on geography or landholding, as well as on the basis of property holding in the area
under consideration. See, e.g., Simi Valley Recreation & Park Dist. v. Local Agency Formation
Comm’n, 124 Cal. Rptr. 635 (Cal. Ct. App. 1975) (permissible to exclude residents who do not live
in area to be deannexed); Moorman v. Wood, 504 F. Supp. 467 (E.D. Ky. 1980) (permissible to
limit franchise in deannexation to only those voters in area potentially to be deannexed). For an
overview, see Clayton R. Gillette, Voting With Your Hands: Direct Democracy in Annexation, 78 S.
CAL. L. REV. 835 (2005).
111
See, e.g., Gomillion v. Lightfoot, 364 U.S. 339 (1960) (striking down disenfranchising racial
redistricting in Tuskegee, Alabama).
112
See, e.g., Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60 (1978) (upholding the city’s police
jurisdiction over adjacent unincorporated areas despite the absence of a concomitant extension of
the right to vote in city elections).
113
89 BVerfG 155 (1993) as translated in DONALD P. KOMMERS, THE CONSTITUTIONAL JURISPRUDENCE OF THE
FEDERAL REPUBLIC OF GERMANY, 182–186 (2d ed., Duke Univ. Press 1997).
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even at the supranational level.114 But it is important not to confuse these
claims with those that address the structure of governance. 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.115
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. 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. This may be the “exit strategy,” as Pamela
Karlan terms it,116 by means of which the courts could restore a measure of
deference to the institutional realities of politics and the ongoing efforts to protect democracy from the imperfections of human society.
4. Conclusion: Judicial oversight and political
experimentation
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
114
See Thomas Franck, The Emerging Right to Democratic Governance, 86 AM. J. INT’L L. 46 (1992)
(describing increased rigor of international law commitments to democratic rights).
115
There is a debate of some duration now in the legal literature on the law governing the political
process. Many have termed these debates as between “structuralists” and “rights advocates.” See
Guy-Uriel E. Charles, Democracy and Distortion, 92 CORNELL L. REV. 601 (2007); Heather K. Gerken,
Lost in the Political Thicket: The Court, Election Law, and the Doctrinal Interregnum, 153 U. PA. L. REV.
503, 510 (2004). A repeated claim is that “the structural approach leads inevitably to intrusive
judicial involvement in states’ political arrangements.” Bruce E. Cain, Garrett’s Temptation, 85 VA.
L. REV. 1589, 1600 (1999). One of the secondary points of this article is to show, quite the contrary, that the mechanical invocation of a rights-based approach threatens destabilization by the
courts of reasonable and necessary political accommodations.
116
Pamela S. Karlan, Exit Strategies in Constitutional Law: Lessons for Getting the Least Dangerous
Branch Out of the Political Thicket, 82 B.U. L. REV. 667 (2002).
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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.117 In the absence of readily distilled principles either
in law or political theory, courts should be guided by a proper appreciation of
the role that judicial oversight can play in the political arena. 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. Carr forward. 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.S.118
A second source of judicial authority to disrupt settled political arrangements lies in the obligation to ensure accountability of the process to the electorate. Ultimately, elections in a democracy “must provide the opportunity for
117
Some have tried to fill in this gap by relying on principles of citizen engagement in possible decision making, thereby drawing on a view of democracy that promotes participation and the generation of information from local bodies. The most intriguing of these approaches is advanced by
my colleague Rick Hills. See Roderick M. Hills, Jr., Against Preemption: How Federalism Can Improve
the National Legislative Process, 82 N.Y.U. L. REV. 1 (2007).
118
Another noteworthy example from the ECtHR comes with Bowman v. United Kingdom, 26 Eur.
H.R. Rep. 1 (1998), a challenge to the entire British system of financing of political parties and
election campaigns, also handled from the limited perspective of individual rights to participate.
See Jacob Rowbottom, Access of the Airwaves and Equality: The Case Against Political Advertising on
the Broadcast Media, in PARTY FUNDING AND CAMPAIGN FINANCING IN INTERNATIONAL PERSPECTIVE 77 (K.D.
Ewing & Samuel Issacharoff, eds., Hart 2006).
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genuine contestation, and their outcomes must not be preordained by the
design of institutional structures.”119 The key insight is a skepticism toward the
problem of “self-interest in institutional design,”120 a likely result when insiders
are able to realize substantial protection by altering the rules of the game to
their benefit. 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.121 The overall question
of the competitive vitality of the electoral system increasingly has instructed
judicial inquiries into such critical matters as the threshold of representation
in proportional representation systems,122 or the impact of party finance
regulation on the overall accountability of elected representatives,123 or even
the proper application of protections against minority vote dilution under the
Voting Rights Act.124 The core insight is that courts remain important institutional actors standing against the manipulation of electoral institutions to the
advantage of incumbent officeholders.125
119
Charles, supra note 115, at 609.
120
Elizabeth Garrett, Who Chooses the Rules?, 3 ELECTION L.J. 139, 139 (2005).
121
The opening gambit in this inquiry was Samuel Issacharoff & Richard Pildes, Politics as Markets:
Partisan Lockups of the Democratic Process, 50 STAN. L. REV. 643 (1998).
122
In Germany, for example, the Constitutional Court upheld a 5 percent threshold for representation as a reasonable political accommodation, particularly in light of the postwar need for stability.
See DONALD P. KOMMERS, THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY 186–187
(2d ed., Duke Univ. Press 1997) (discussing the Bavarian Party Case, 6 BVerfGE 84 (1957)). Subsequently, after reunification, the Court struck down efforts to expand the scope of newly integrated parties to “piggyback” in coalitions in order to achieve the 5 percent threshold. Id. at
188–189 (translation of the National Unity Election Case, 82 BVerfGE 322 (1990)). A similar issue was presented by the 2002 reforms to the Turkish parliamentary system, which raised the
threshold of representation to ten percent. The European Court of Human Rights upheld the high
threshold and ruled in a manner consistent with the thesis of this article:
The rules in this area vary in accordance with the historical and political factors specific to each
State; the large variety of situations provided for in the electoral legislation of numerous member States
of the Council of Europe shows the diversity of the possible options. For the purposes of applying Article
3 of the Protocol, any electoral legislation must be assessed in the light of the political evolution of the
country concerned, so that features that would be unacceptable in the context of one system may be
justified in the context of another… , at least so long as the chosen system provides for conditions
which will ensure the “free expression of the opinion of the people in the choice of the legislature.”
Case of Yumak & Sadak v. Turkey, App. No. 10226/03, Eur. Ct. Hum. Rts., Jan. 30, 2007,
available at http://www.legislationline.org/legislation.php?tid=1&lid=7475.
123
See McConnell v. FEC 540 U.S. 93, 247 (2003) (Scalia, J., concurring in part, dissenting in part).
124
See Ellen Katz, Reviving the Right to Vote, 68 OHIO ST. L.J. 1163 (2007).
125
See, for example, the role of the Ukrainian Constitutional Court in forcing a showdown with the
government over the election rules in 2004. The basic instinct here was well captured by John Hart Ely,
who viewed elections cases as “[involving] rights (1) that are essential to the democratic process and (2)
whose dimensions cannot safely be left to our elected representatives, who have an obvious vested interest in the status quo.” JOHN HART ELY, DEMOCRACY AND DISTRUST 117 (Harvard Univ. Press 1980).
Issacharoff
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Democracy and collective decision making
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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.S., the predicate for the Baker v. 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.126 Certainly
this was a focus of the ECtHR in Mathieu-Mohin and Clerfayt v. 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.S. Supreme Court should take into account the recent highprofile political negotiations over the McCain-Feingold campaign reform bill as a
factor in considering the constitutionality of the legislation.127
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.S. Constitution’s prohibition
on interstate compacts that potentially burden nonparticipating states.128 But
the same problem can arise independently of a formal agreement between
two states to privilege themselves at the expense of others. 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.S. Supreme Court and the European Court
of Justice, have read into the role of ensuring economic integration through
doctrines such as preemption.129
126
The U.S. Supreme Court refused to consider just such an argument in the one case from the
early Baker/Reynolds era that was the product of a recent political compromise rather than simply
reflecting the dead hand of history. The clearest presentation of this issue is in Lucas v. The FortyFourth General Assembly District of the State of Colorado, 377 U.S. 713 (1964).
127
Pildes, supra note 74, at 135–138.
“No State shall, without the Consent of Congress, … enter into any Agreement or Compact with
another State… .” U.S. CONST. art. I, §10, cl. 3. “The Founders were acutely aware of the need to
protect states and their citizens from sister-state aggression; that is why they adopted the Compact
Clause … [to protect] comity and equality among the states.” Michael S. Greve, Compacts, Cartels,
and Congressional Consent, 68 MO. L. REV. 285, 293 (2003). See generally JOSEPH FRANCIS ZIMMERMAN,
INTERSTATE COOPERATION: COMPACTS AND ADMINISTRATIVE AGREEMENTS (Praeger 2002).
128
129
For an extended discussion of this theme, see Samuel Issacharoff & Catherine M. Sharkey, Backdoor Federalization, 53 UCLA L. REV. 1353 (2006).
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In more recent constitutional arrangements, such as that of South Africa,
there may be a direct commitment that all spheres of governmental authority
must “exercise their powers and perform their functions in a manner that does
not encroach on the geographical, functional or institutional integrity of government in another sphere.”130 Almost invariably, the increased scope of market activity as it reaches national and international levels is a strong factor in
the push toward the use of higher-order legal authority when dealing with
regulation of economic activity. 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.
130
S. AFR. CONST. 1996 § 41(1)(g).