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The Law of Freedom: The Supreme Court and Democracy (Introduction)

Eisler, Jacob and Eisler, Jacob, The Law of Freedom: The Supreme Court and Democracy (Introduction) (November 10, 2022). Forthcoming Cambridge University Press, 2023, Available at SSRN: or

“The influence of the federal judiciary over democratic process raises a fundamental difficulty. Democracy has unique moral legitimacy as a mode of governance because it directly allocates power over governance to its constituent members. For this legitimating quality of self-rule to be realized, the constituency must not only express its will through democratic procedures (typically elections), but also have authority over the construction and validation of such democratic procedures. When politically neutral (that is to say, non-accountable) courts make decisions that impact democratic procedure, it directly challenges the soul of democracy as autonomous constituent self-rule. The foundational moral question – how can non-accountable judicial authority over democratic process be legitimate? – has been the subject of shockingly little academic attention. Scholarly debates over constitutional interpretation generally have neglected the unique challenges posed by this transformation of democratic process. While the Court’s impact on democratic process has been echoed by the burgeoning growth of election law studies, this field has predominantly deployed a structural lens, interrogating what electoral features and practical designs the Court should advance. Election law scholars have treated the judiciary as merely another player in the game of power politics, overlooking its distinctive normative mandate and obligations. This book addresses this gap with two major contributions. First, in Chapters 1 to 3, it offers a theoretically rigorous, philosophically and jurisprudentially informed account of the challenge posed by judicial oversight of democracy process. This challenge, the counterpopular dilemma, emerges from the confrontation between the two main normative implications of judicial oversight of electoral process. The first is that democracy is a uniquely legitimate mode of governance because it allocates causal power over governance to the constituent members of the polity. Constituent autonomy requires as a first condition the authority to establish the procedures that realize that autonomy, as well participate in those procedures. If this authority is allocated to a non-accountable (that is to say, rule of law neutral) judiciary, it limits this autonomy, and subordinates the moral role of constituent freedom to some other value, undermining the constituency’s own autonomy and with it democracy’s moral value. Yet without judicial review, the integrity of democratic procedure is vulnerable to political manipulation by those in power. Prevalent election law scholars have observed the tendency of political actors to adopt self-serving democratic procedures and manipulate election law to entrench themselves and their allies. This taints the imprimatur of democratic autonomy in subsequent elections. They have then identified the judiciary as uniquely positioned outside typical political struggle to guarantee fair elections. Courts’ commitment to neutrality in decision-making and their insulation from direct political pressure gives them a unique opportunity to interdict such practices and advance electoral practices that serve justice alone. No existing account of judicial review can reconcile these competing values. This book argues that the dilemma is intractable, and that its intractability can be made a virtue. The best judicial approach is to center the highest value of democracy, constituent freedom, and to recognize the conflicting mandates that the judiciary faces: deferring to the validity of political autonomy, and highlighting the need to prevent abusive use of processes that serve such autonomy. The resulting judicial analysis is most legitimate when it is shot through with the tension that emerges from this conflict. Thus, judicial review of election law is most legitimate and engage in continual and unsettled struggle and debate over the principles of constituent self-rule. The second part of this book demonstrates how judicial review as philosophical struggle between egalitarian and libertarian conceptions of freedom within the Supreme Court offers a coherent, incisive, and domain-spanning account of election law doctrine. Close analysis of the central domains of elections law – one-person, one-vote (Chapter 4); campaign finance regulation (Chapter 5); parties in elections (Chapter 6); and race in elections (Chapter 7) – demonstrates shows how the bench has struggled over the appropriate ideals of constituent liberty. Each chapter offers a coherent, theoretically rich understanding of the development and substance of the doctrine…”

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