Making the Law Safe for Democracy: A Review of “The Law of Democracy Etc.”
Henry Hart began his 1964 Holmes Lectures by asking what a “single” would be without baseball. We rolled our eyes at that one, reveling in the maestro’s penchant for the occult. As usual, though, Professor Hart was trying to tell us groundlings something precious. He was warning us that conventional legal thinking, by stressing rigorous deconstructive analysis, can obscure an important unity in favor of components that should be analyzed, not solely as freestanding phenomena, but as part of the unity. Without recognition of the unity, analysis of the components risks being carried on in a normative vacuum that will inevitably be filled by another tiebreaking mechanism, often to the detriment of the larger enterprise. A ban on littering in the park, for example, taken in isolation, might justify stringent prophylactic measures, like a ban on picnicking, or leafleting, or bringing newspapers into the park. Only when the littering ban is subsumed into the larger unity of a law of recreation (or something else) can its scope be properly analyzed. Thirty-five years late, I assume that was what Professor Hart meant when he warned us against thinking about “singles” without thinking about baseball. Nowhere is Professor Hart’s warning about the potential pitfalls of excessively deconstructive legal analysis more important than in thinking about the law of democracy. Conventional legal analysis has ruthlessly deconstructed democracy into component parts, and analyzed the components with only cursory attention to the larger democratic enterprise. A functioning democracy is, after all, the sum of crucial components – free speech, political equality, liberty, toleration, empathy, self-interest, efficiency, and much more. In the fifty-odd years that American courts have struggled seriously with the care and feeding of the democratic process, however, legal doctrine has paid little attention to democracy as a unifying normative ideal. Instead, the functional reality of democracy in the United States is, and has been, held hostage to the law governing its components. First Amendment analysis dictates the ground rules governing campaign financing without any real attention to what kind of democracy comes out the other end. Equal protection analysis dominates voting rights law, and dictates what kind of representational patterns we can have,5 without much, if any, thought about what the effect will be on democracy. In truth, American courts often appear to govern our democracy much like a well-meaning umpire who thinks that rules governing “singles” can be crafted without thinking much about baseball.