Sam Issacharoff and I have posted on SSRN this new essay. Here’s the abstract:
Democracies grapple with the tension between the principle of majority rule and ensuring respect for the interest of political minorities, however those might be defined in different societies and different circumstances. As an initial matter, constitutional designers confront this tension in the original architecture of a democratic system. But the balance struck between majorities and minorities is not exclusively settled through the original constitutional design. In the United States, at least, legal doctrine and statutory enactments have also been centrally engaged in ongoing fashion with this fundamental tension.
As this essay chronicles, the law of democracy began with a focus on ensuring the majoritarian basis of American democracy. Over time, the focus then shifted to concern with fair representation of the interests of minorities within the majoritarian system. Now, we argue, the focus of reform efforts is shifting back to efforts to restore the majoritarian thrust of democracy. The law of democracy cycles, perhaps without final resolution, between supporting majoritarianism, concern for minority interests, and back again to shoring up the majoritarian foundations of democracy.
In our era, it is the power of factional minorities who are able to leverage control of plurality winner processes that poses the greatest challenge for American democracy. The threatened tyranny of the minority of the majority now looms as a central challenge that democratic thought, policy, and doctrine must confront.