Constitutionalizing Democratic Politics

Abstract

Among most significant, but least appreciated, developments in Supreme Court decisionmaking over last generation has been what this Article calls the constitutionalization of democracy. In recent years, powerful litigants - major political parties, incumbent officeholders, candidates for Presidency - have increasingly turned to courts to subject fundamental structure of democratic processes and institutions to constitutional constraint. To a degree that would have been inconceivable even 20 years ago, and that has no parallel in any constitutional system outside United States, these efforts have largely succeeded. This Article first documents factors that have led to more frequent challenges to existing structures of democracy in United States; these challenges can be seen in renaissance of voter initiative, rise of third party politics, and increasing disaffection of more citizens from traditional forms of politics. The Article then describes how constitutional law has responded to these challenges. The Article builds towards a framework for defining circumstances in which constitutional oversight of democratic politics is best justified, and when such oversight is least justified. The Article thus seeks to defining appropriate boundary between constitutional law and democratic politics, and to identify why need for theoretical clarity about this question is taking on greater urgency as pressure increases to constitutionlize more features of democratic politics.