This Article responds to Professor Rick Hasen's important new work, The Democracy Canon. Hasen identifies an intriguing and until now largely unnoticed practice in many state courts-to wit, the construing of election statutes with a strong thumb-on-the-scales in favor of easing voters' access to the polls and of rendering ballots eligible to be counted. Hasen defends this “pro voter” canon of interpretation and commends it to the federal courts. I argue that Hasen's Canon cannot stand on the normative foundation he has poured for it, and that the federal courts' adoption of the Canon would probably have significant costs (for example, weakened incentives for bipartisan compromise on electoral reform) that Hasen either overlooks or undersells. I propose three alternative “democracy canons,” arguing that each would be more normatively defensible and less politically treacherous than Hasen's Canon. The first, the Effective Accountability Canon, would stand in for the Supreme Court's reluctance to directly enforce the constitutional principle (arguably embodied in the Guarantee Clause, Article I, and the Seventeenth Amendment) that electoral systems should be designed to render elected bodies responsive to the interests and concerns of the normative electorate, i.e., the class of persons entitled to vote. Representative voter participation and aggregate voter competence would be this canon's polestars. A second option, the Carrington Canon, counsels for the narrow construction of voting requirements enacted on a substantially party line vote. It could also negate the normal presumption of deference to administrative agencies - with respect to voting issues - if the agency is headed by a political partisan. The Carrington Canon would function as a means of indirectly enforcing an underenforced constitutional norm against ideological discrimination with respect to the franchise. Third, plausible arguments can be mounted on behalf of what I term the Neutrality Canons, which weigh in favor of statutory interpretations that reduce the fact or appearance of judicial partisanship.

Comparative constitutionalism emerged in its current form against the backdrop of the fall of the Berlin Wall and the end of the Cold War. As that backdrop recedes into the past, it is being replaced by a more multi-polar and confusing world, and the current state of the discipline of comparative constitutionalism reflects this fragmentation and uncertainty. This has opened up space for new, more varied, and increasingly critical voices seeking to improve the project of democratic constitutionalism. But it also raises questions: What of the past, if anything, is worth preserving? Which more recent parts should be defining of the field? In this context, this book asks which are - or should be - the canonical texts of comparative constitutionalism. The theoretical scope of the contributions is broad and ambitious, selecting primary material from beyond the existing textbooks to engage the concept of a canon. This framework provides significant insights about inclusion and exclusion, and proposes candidates for canonical and anti-canonical materials. The result is a wide-ranging discussion, among many voices, of how particular judgments and other primary texts have shaped or should shape our understanding of central elements of democratic constitutionalism from a comparative law perspective. This book is not a prescription of one universal understanding, but a broader conversation about the field and the future of constitutional democracy.

List of Tables and FiguresPrefaceIntroduction: Race, Redistricting, and Representation in the U.S. House of RepresentativesChapter One: Black Interests, Difference, Commonality, and RepresentationChapter Two: A Legal Primer on Race and RedistrictingChapter Three: The Supply-Side Theory of Racial Redistricting, with Matthew M. Schousen and Patrick J. SellersChapter Four: Race and Representation in the U.S. House of RepresentativesChapter Five: Links to the ConstituencyChapter Six: Black Majority Districts: Failed Experiment or Catalyst for a Politics of Commonality?Appendix A. Data SourcesAppendix B. Procedures for Coding the Newspaper StoriesNotesReferencesIndex Copyright © Libri GmbH. All rights reserved.

This book illuminates how law and politics interact in the judicial doctrines and explores how democracy sustains and is sustained by the exercise of judicial power.

The Law of Democracy offers a systematic exploration of the legal construction of American democracy. The book brings together a cluster of issues in law regulating the design of democratic institutions, and the book employs a variety of methods - historical, comparative, theoretical, doctrinal - to explore foundational questions in the theory and practice of democracy. Covered issues include the historical development of the individual right to vote; current struggles over racial gerrymandering; the relationship of the state to political parties; the constitutional and policy issues surrounding campaign-finance reform; and the tension between majority rule and fair representation of minorities in democratic bodies.