Geoffrey R. Stone and David A. Strauss – Democracy and Equality

Legal scholars have written some of the best scholarship on democracy in recent years. Rosalind Dixon, Tom Ginsburg and David Landau are among the most creative and insightful minds among scholars of democratic governance. Their articles are not limited to American jurisprudence but analyze the role of the courts within different countries where legal traditions may diverge. David Landau’s paper “Abusive Constitutionalism” used a comparative approach to understand how different countries use the constitutional process to centralize power and erode democratic accountability. Rosalind Dixon and Samuel Issacharoff used historical examples from around the world to explain how courts use legal decisions to position themselves to protect civil liberties and political rights in the future. Their article “Living to Fight Another Day: Judicial Deferral in Defense of Democracy” explores the awkward role of the judiciary in the democratic process. Finally, Tom Ginsburg and Aziz Huq wrote the classic law article called “How to Lose a Constitutional Democracy.” It focused on the viability of American democracy but used examples from around the world to demonstrate potential vulnerabilities to the constitutional order. Their work How to Save a Constitutional Democracy is largely based on the research for this original article. Again, they offer examples of how the constitutional system and the judiciary offers a role within the defense of democracy.

Still, there is no obvious role for the judiciary within a democracy. Yascha Mounk categorizes the judiciary as an undemocratic tool of liberalism. There is a long historical tradition for this perspective. The Federalist Papers make it evident the constitution was intended to blend aspects of democratic and aristocratic governance. Aristocratic institutions like the Senate and the judiciary were intended to defend the liberal origins of the Republic. The reinterpretation of the judiciary as a bulwark of democracy comes from a shift in the perceived relationship between liberalism and democracy. Intellectuals long believed democratic governance was a threat to the rights and freedoms of liberalism. The integration of liberalism and democracy into a cohesive theory began within the nineteenth century but came to fruition during the twentieth century. Mounk, interestingly, takes democratic theory back multiple generations when he once again decouples liberal ideals from democratic governance.

The American judiciary has a mixed record as a defense of liberal rights. Robert Dahl argued for a more aggressive form of majority rule in his Preface to Democratic Theory because the judiciary had largely worked to undermine political and civil rights through decisions like Dred Scott and Plessy v. Ferguson. Dahl was expressing these concerns in 1956 during the early days of the Warren Court. It is interesting how the activist liberal court of the Warren era emerged not from the Roosevelt or Truman legacies but from an Eisenhower appointment. Indeed, the Eisenhower administration offered an amicus curiae brief in favor of the Brown v. Board of Education decision. William Hitchcock’s book The Age of Eisenhower is among the many efforts to redefine the narrative of this era. Dahl reflects the optimism of the New Deal where legislation reshaped society through large political majorities. The conservatism of Eisenhower did not abandon reform but relied on established traditions and institutions, such as the constitution, to eliminate inconsistencies in governance.

The Warren Court offers a glimpse of how the court can become a source of change within the political system. The academic challenge is to determine whether it represents the intended role of the judiciary or an historical anomaly. Stone and Strauss recognize the unique role the Warren court played within the American constitutional legacy. But they also emphasize the enduring legacy it has achieved. Many of its most controversial decisions have not been overturned even when the original scope has been reduced or limited. And the legal theories they espoused have set the stage for subsequent decisions which were inconceivable without the precedents set during their tenure. For example, the landmark case Loving v. Virginia was the necessary precedent for Obergefell v. Hodges which legalized same sex marriage.

Stone and Stauss offer a unique analysis into twelve different landmark cases during this era. Because the cases are all over fifty years old, this becomes an interesting historical retrospective on the legal theory behind the cases including their impact and legacy. Scholars of democratic theory will be drawn to Reynolds v. Sims because it deals directly with the political process. Typically, the role of the judiciary within democratic governance involves the tangential defense of civil liberties or civil rights which play a role within democratic governance, but its effect is indirect. But Reynolds strikes at the heart of the interchange between constitutional governance, democracy and the role of the courts.

During the nineteenth century, England initiated a series of political reforms to eliminate rotten boroughs where members of Parliament represented unrealistically small numbers of constituents while other areas were entirely unrepresented. Few realize the United States had developed its own rotten boroughs during the twentieth century in Southern legislatures. The American South has a long tradition of anti-democratic traditions which have plagued the American political process. It is not uncommon to hear people say, “The United States is a Republic, not a Democracy.” These supposed critics of democracy refer to the constitutional protections which limit majority rule. They fail to recognize the distinct traditions used to manipulate the electoral process to undermine constitutional rights employed in Southern states. The United States was founded as a Republic but has been transformed into a liberal democracy through the abolition of slavery, the end of Jim Crowe and the principle, developed under the Warren Court, ‘One Person, One Vote.’

Fukuyama is among those who have criticized the legalistic tradition within the United States where so many important decisions have become arbitrated through the courts rather than the political process. Yet this perspective fails to recognize the ways the political process has become weaponized to produce undemocratic outcomes. Stone and Strauss emphasize the pivotal role of the Warren Court to establish ground rules to facilitate the democratic tradition within the United States found significantly within the Reynolds decision. Of course, Fukuyama is right that there are significant problems from utilizing the legal process to mediate political decisions. The Reynolds decision has forced state legislatures to become solely represented through population. It is ironic because the American constitution offers an upper house which was designed to represent the interests of the states. Yet it is difficult to imagine how the political process might have resolved the issue of unrepresentative governance as the system became increasingly unrepresentative.

Recently, the Supreme Court has determined the courts cannot not judge electoral maps as too partisan. This was a landmark case involving the political tool known as gerrymandering. The decision is both a rejection of the spirit of Reynolds and a consequence of its legacy. Because districts are required to remain equal, it is natural those districts will become manipulated for partisan advantage. This approach follows the letter of ‘One Person, One Vote’ while it undermines its spirit.

This retrospective from Stone and Strauss helps us recognize how remarkable the era of the Warren Court became in establishing many of the liberal and democratic principles which have become foundational to the American political process. Yet this work also helps understand how unique this period was within the American judicial tradition. Nonetheless, the book is fundamentally optimistic because despite its relatively short tenure in American history, these short waves have the potential to shape the trajectory of the American legal tradition for generations.

jmk, carmel, indiana,

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