Jacob Eisler (Florida State University College of Law) has posted The Law of Freedom: The Supreme Court and Democracy (Introduction) (Cambridge University Press, July 2023) on SSRN. Here is the abstract:
If democracy’s legitimating value is the autonomy of the people, how can an impartial court transform the terms of that autonomy? To address that puzzle, this book does two things. First, it frames the question in philosophical terms. The dignity of democratic autonomy and the justice of rule of law neutrality are both essential for legitimate liberal democracy where the people rule but individual rights are respected. But in the context of electoral process, the coexistence of these values creates a counterpopular dilemma: if courts dictate terms of elections, they intrude upon the extent of democratic autonomy. The best approach is for courts to engage in ongoing contestation over the nature of freedom, directed toward what electoral procedures will best serve popular self-rule. Second, this book shows how the Supreme Court’s transformation of democratic process in the 20th century consists of a long-running, fiercely contested debate over the ideal of popular autonomy. This debate has settled into two opposed sides. Libertarians see elections as a means for converting private power and position into political representation. They wish to maintain elections as a zone of private power and reject both state action and judicial interpretation that intrudes upon private power. Egalitarians see elections as an expression of the mutualist aspects of a democracy that aspires toward civic equality. They wish to use the bench to advance a vision of democracy as a shared space of rule by equals. The struggle reflects partisan allegiances, but it shows that underlying the partisan divide is a philosophical dispute over the meaning of freedom itself.
Highly recommended.