The Hybrid Nature of Political Rights

Abstract

In recent redistricting and jury exclusion cases, the Supreme Court has expressed hostility to the idea that government may consider racial or gender group membership in making decisions that determine the composition of representative institutions. Instead, the Court has insisted that government must think of voters and jurors solely as individual actors, who cannot be recognized as having similar interests, experiences, or perspectives as other persons who share their race or sex. Whatever merit there may be in adopting this exclusively individualistic approach in the area of civil rights and privileges, Professors Amar and Brownstein argue that it is an inadequate basis for understanding the Constitution's equality requirements when political rights are at issue. Instead of focusing exclusively on the individual, our constitutional tradition acknowledges a dual dimension to political rights consisting of both an individualistic, dignitary component and a group-based, instrumental component. This tradition developed out of the political and legal struggle to extend the franchise to black men and to women through the 15th and 19th amendments and underlies over 100 years of case law interpreting the nature of political equality for constitutional purposes. Political rights in America have always reflected an uneasy tension between respect for the individual and a concern for the ability of groups to influence government. When the modern Court ignores the group and instrumental dimension of political rights in our history, it avoids, rather than resolves, the hard questions and grounds constitutional doctrine in this area on an unstable foundation.