On the Legal Theory Blog, Larry Solum posted his “Downloads of the Year,” and I am happy that my essay, “‘In Whom is the Right of Suffrage?’: The Reconstruction Acts as Sources of Constitutional Meaning” made the list. It is an honor for this piece, which I took such joy in writing, to be counted among some really terrific legal scholarship, and I am grateful.
In the waning days of 2021, I also posted another article, “Countering the Real Countermajoritarian Difficulty,” which is a response to Professor Pam Karlan’s Jorde lecture. There are some really terrific exchanges that are worth reading (as Nick notes here). The abstract for my contribution is below:
In her Jorde lecture, Professor Pamela Karlan persuasively argues that the countermajoritarian difficulty in the American political system does not solely lie with the courts and the process of judicial review, but is also structural and endemic to the U.S. Constitution. There are countermajoritarian aspects of our Constitution, namely the Senate and the Electoral College, which frustrate the process of achieving a true majoritarian democracy. As Professor Karlan shows, these structural elements have interacted with demographic changes in which geographically concentrated majorities have less power than their rural counterparts, producing another period of minority retrenchment in our political system that has been enabled by the U.S. Supreme Court. Consequently, legislation is not always a product of democratic majorities because the institutions enacting legislation are structurally countermajoritarian.
This short essay builds on Professor Karlan’s argument that the problem of countermajoritarianism has not been unique to the courts, but does so by taking a slightly more extreme position. In my view, the courts rarely face any countermajoritarian difficulties precisely because American democracy has always been an ongoing project that has never been perfected and has been subject to setbacks resulting in lost progress towards a majoritarian ideal. The idea that judicial involvement should be tempered by concerns that courts are acting counter to democratic majorities has been, and remains, illusory.
This essay discusses one such incident—Dorr’s Rebellion—to show how the political branches have often abdicated their responsibilities to protect both republican and democratic ideals in service of some other cause. In the case of Dorr’s Rebellion, that cause was slavery. Disenfranchised Rhode Islanders challenged political elites to create a more representative electorate; however, they were defeated in these efforts despite the gap between Rhode Island’s political system and the ideal of republican government that existed at the time. The Supreme Court, in Luther v. Borden, failed to police the political branches in a dispute that presented an actual countermajoritarian difficulty. Luther has always loomed large, forcing the Court to look for new and creative ways to address political lockups to avoid its holding, as was true in Baker v. Carr and the other reapportionment cases of the 1960s.
Indeed, the difference between the reapportionment cases and Rucho v. Common Cause, the recent case holding partisan gerrymandering claims to be nonjusticiable, is that, in the reapportionment cases, the Court rejected the path set by Luther v. Borden and recognized that the political institutions representing the people had indeed become countermajoritarian. In contrast, the Rucho majority adhered to Luther, which has, for over a century and a half, embraced a rule of justiciability that has served as a vehicle to give legal effect to a countermajoritarian difficulty that has infrequently existed inside the courts but has been fairly plentiful outside of them. In reality, the judiciary is best equipped to determine the scope of its involvement in the political thicket, a fact that even Alexander Bickel recognized over fifty years ago, as opposed to relying on the countermajoritarian difficulty as a reason, in and of itself, to justify staying its hand.