American democracy is experiencing a stress test, but the field that <\/i>ought to be preoccupied with democracy seems to have little to say about <\/i>it. The law of democracy has long grappled with fundamental challenges <\/i>over political inequality, racial exclusion, and clientelism. For much of <\/i>its history, the field of election law adjudicated these and similar issues <\/i>more or less successfully. That mode of adjudication succeeded primarily <\/i>because the problems of democratic politics could be addressed, for the <\/i>most part, by applying the core commitments of the extant constitutional <\/i>order. Significantly, American democracy relied on the Supreme Court to <\/i>excavate, articulate, and implement those commitments.<\/i><\/p>\n
In the last few years, however, the challenges to democratic politics <\/i>have <\/i>changed. Our politics have become more existential, and so have <\/i>our constitutional disputes. As a result, in an emergent category of law <\/i>and democracy cases, the parties now fight over divergent partisan con<\/i>ceptions of democracy. Each side contends that the other is antidemo<\/i>cratic and effectively asks the Court to arbitrate between their competing <\/i>claims. <\/i>Because these emergent challenges are about defining liberal de<\/i>mocracy itself, they cannot be resolved by invoking the commitments of <\/i>America\u2019s <\/i>liberal constitutional democracy. These new challenges ques<\/i>tion the content of the polity\u2019s commitments, not its failure to apply them.<\/i><\/p>\n
The familiar tools <\/i>of election law were forged under different political <\/i>conditions. Those tools have limited utility in our era of existential poli<\/i>tics. Students and practitioners of the law of democracy need to develop <\/i>an agenda <\/i>for reforming our political systems. Election law can no lon<\/i>ger depend upon the Court to resolve democracy\u2019s pathologies. Courts <\/i>can <\/i>buy us time. But to meet the challenge of structural reform, our poli<\/i>tics must do much more. In short, the law of democracy is now in its <\/i>Reconstruction <\/i>Era.<\/i><\/p>\n
Continue reading Reconstructing (The Law of) Democracy<\/em><\/strong><\/a>.<\/em><\/p>\n