Academic

Gardner on Voter Dignity & Constitutional Rights in the Democratic Process

By Lawrence Solum

James A. Gardner (University at Buffalo Law School, SUNY) has posted The Dignity of Voters - A Dissent (University of Miami Law Review, Forthcoming) on SSRN. Here is the abstract:

Since the waning days of the Burger Court, the federal judiciary has developed a generally well-deserved reputation for hostility to constitutional claims of individual right. In the field of democratic process, however, the Supreme Court has not only affirmed and expanded the applications of previously recognized rights, but has also regularly recognized new individual rights and deployed them with considerable vigor. The latest manifestation of this trend appears to be the emergence of a new species of vote dilution claim that recognizes a constitutionally grounded right against having one?s vote ?cancelled out? by fraud or error in the casting and counting of ballots. I argue here that an important reason for the Court?s anomalous commitment to a robust regime of individual rights in the democratic arena is its conception of the dignity of voters. Rather than approach issues involving democratic process as problems of power or of the proper functioning of a system of representative democracy, the Court instead approaches such issues as problems of the maltreatment of individual voters. This, I shall argue, is a serious mistake in two ways. First, the Court has failed to distinguish among different kinds of rights, and it therefore misuses them. Second, the Court ought not to conceive of voters as bearers of a kind of dignity equivalent to the dignity that all people enjoy in virtue of their humanity ? the traditional basis for recognizing individual rights. Instead, I argue, voters are better treated for some constitutional purposes as public officials discharging a public duty, and as therefore entitled either to no particular dignitary rights, or to dignitary rights that are greatly diminished.

Full post as published by Legal Theory Blog on August 21, 2009 (boomark / email).