Lisa Grow (Brigham Young University, J. Reuben Clark Law School) and Douglas M. Spencer (University of Colorado Law School) have posted Democratic Resilience and the Supreme Court’s Democracy Problem, forthcoming in Utah Law Review, on SSRN. Here is the abstract:
The Constitution creates a democracy that was intended to last through the generations—”to secure the blessings of liberty” for both the Framers and their posterity. Put simply, the Constitution is committed to an enduring democracy, a principle we refer to as “democratic resilience.” Recently, however, in the 2019 case Rucho v. Common Cause, the Supreme Court disclaimed any role in choosing among democratic conceptions, treating that choice as “political” and therefore beyond judicial competence. Neutrality is, of course, one of the core values of America’s judiciary, and is especially essential for resolving disputes in controversial cases with political significance. But the Court’s recent insistence on neutrality about what democracy requires is wrong both descriptively and normatively. It is impossible for courts to be neutral about the meaning of democracy; indeed, courts constantly choose among competing conceptions of democracy when they define rights, evaluate state interests, and structure political power. More importantly, courts should not be neutral about democracy. Doing so risks the courts contributing to, rather than guarding against, democratic backsliding. Courts can play a key role in ensuring the resilience of democracy by recognizing democratic resilience both as a constitutional value and as an interpretive guide, especially when their decisions will determine the viability of free, fair, and durable self-government. While courts alone may be limited in their ability to stop a concerted effort to erode democracy, their limitations should not give them a free pass. Courts are imperfect instruments of democracy, but they nonetheless play a necessary role in protecting democratic resilience.
Recommended. Very interesting and recommended. The paper does not explicitly identify a theory of constitutional interpretation and construction, but implicitly it may operate within a constitutional pluralist framework. The need to adopt a conception of democracy might flow from the constitutional values modality within a pluralist framework; see the Legal Theory Lexicon entry on constitutional pluralism. This raises the question whether a conception of democracy is required from the perspective of public meaning originalism. My tentative thought is that the answer is probably “no.”
The word “democracy” does not appear in the constitutional text. What does appear—in Article IV, Section 4—is a guarantee of a “Republican Form of Government” to every state. The Guarantee Clause was understood at the founding to require something like popular sovereignty, majority rule through representative institutions, and rule of law, but the Framers deliberately chose the republican rather than the democratic idiom, in part because they associated “democracy” with the instabilities of direct popular governance. The public meaning of “republican form of government” at the time of ratification is therefore the textual hook that originalism would engage, and that concept does not map cleanly onto the richer, evolving conception of “democracy” that Grow and Spencer develop. An originalist might thus acknowledge the value of democratic resilience as a political ideal while denying that the constitutional text, properly construed, mandates the kind of substantive judicial engagement the paper recommends. Whether that is the right conclusion turns on contested questions about the scope of the construction zone and the role of constitutional values in filling it—questions the paper, operating within a pluralist rather than originalist framework, does not attempt to resolve. Given the current composition of the Supreme Court, it seems unlikely that this paper would have purchase there without a serious engagement with originalist theory. It goes without saying that in the legal academy, constitutional pluralism is the dominant approach and this paper will be deeply interesting to many scholars.
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