Madison's hope: Virtue, self-interest, and the design of electoral systems

Iowa Law Review

Volumn 86, Issue 1, 2000, Pages 87-171

  Gardner, James A ^a  

^a NONE

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EID: 0034551894     PISSN: 00210552     EISSN: None     Source Type: Journal    
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References (535)

1. LANI GUINIER, THE TYRANNY OF THE MAJORITY 101 (1994) [hereinafter GUINIER, TYRANNY].
2. Pamela S. Karlan, Undoing the Right Thing: Single-Member Offices and the Voting Rights Act, 77 VA. L. REV. 1, 11 (1991) [hereinafter Karlan, Undoing].
3. GUINIER, TYRANNY, supra note 1, at 79.
4. Id. at 121, 134-35.
5. Karlan, Undoing, supra note 2, at 9.
6. Samuel Issacharoff, Polarized Voting and the Political Process: The Transformation of Voting Rights Jurisprudence, 90 MICH. L. REV. 1833, 1837, 1849 (1992) [hereinafter Issacharoff, Polarized Voting].
7. Lani Guinier, No Two Seats: The Elusive Quest for Political Equality, 77 VA. L. REV. 1413, 1429 (1991).
8. GUINIER, TYRANNY, supra note 1, at 79.
9. E.g., DOUGLAS J. AMY, REAL CHOICES/NEW VOICES: THE CASE FOR PROPORTIONAL REPRESENTATION ELECTIONS IN THE UNITED STATES ch. 1 (1993); STEVEN J. BRAMS & PETER C. FISHBURN, APPROVAL VOTING 1-3 (1983); ENID LAKEMAN, POWER TO ELECT: THE CASE FOR PROPORTIONAL REPRESENTATION 22, 166 (1982); ROBERT A. NEWLAND, COMPARATIVE ELECTORAL SYSTEMS 11, 21 (1982). See generally GARY W. COX, MAKING VOTES COUNT: STRATEGIC COORDINATION IN THE WORLD'S ELECTORAL SYSTEMS (1997).
10. E.g., DOUGLAS J. AMY, REAL CHOICES/NEW VOICES: THE CASE FOR PROPORTIONAL REPRESENTATION ELECTIONS IN THE UNITED STATES ch. 1 (1993); STEVEN J. BRAMS & PETER C. FISHBURN, APPROVAL VOTING 1-3 (1983); ENID LAKEMAN, POWER TO ELECT: THE CASE FOR PROPORTIONAL REPRESENTATION 22, 166 (1982); ROBERT A. NEWLAND, COMPARATIVE ELECTORAL SYSTEMS 11, 21 (1982). See generally GARY W. COX, MAKING VOTES COUNT: STRATEGIC COORDINATION IN THE WORLD'S ELECTORAL SYSTEMS (1997).
11. E.g., DOUGLAS J. AMY, REAL CHOICES/NEW VOICES: THE CASE FOR PROPORTIONAL REPRESENTATION ELECTIONS IN THE UNITED STATES ch. 1 (1993); STEVEN J. BRAMS & PETER C. FISHBURN, APPROVAL VOTING 1-3 (1983); ENID LAKEMAN, POWER TO ELECT: THE CASE FOR PROPORTIONAL REPRESENTATION 22, 166 (1982); ROBERT A. NEWLAND, COMPARATIVE ELECTORAL SYSTEMS 11, 21 (1982). See generally GARY W. COX, MAKING VOTES COUNT: STRATEGIC COORDINATION IN THE WORLD'S ELECTORAL SYSTEMS (1997).
12. E.g., DOUGLAS J. AMY, REAL CHOICES/NEW VOICES: THE CASE FOR PROPORTIONAL REPRESENTATION ELECTIONS IN THE UNITED STATES ch. 1 (1993); STEVEN J. BRAMS & PETER C. FISHBURN, APPROVAL VOTING 1-3 (1983); ENID LAKEMAN, POWER TO ELECT: THE CASE FOR PROPORTIONAL REPRESENTATION 22, 166 (1982); ROBERT A. NEWLAND, COMPARATIVE ELECTORAL SYSTEMS 11, 21 (1982). See generally GARY W. COX, MAKING VOTES COUNT: STRATEGIC COORDINATION IN THE WORLD'S ELECTORAL SYSTEMS (1997).
13. E.g., DOUGLAS J. AMY, REAL CHOICES/NEW VOICES: THE CASE FOR PROPORTIONAL REPRESENTATION ELECTIONS IN THE UNITED STATES ch. 1 (1993); STEVEN J. BRAMS & PETER C. FISHBURN, APPROVAL VOTING 1-3 (1983); ENID LAKEMAN, POWER TO ELECT: THE CASE FOR PROPORTIONAL REPRESENTATION 22, 166 (1982); ROBERT A. NEWLAND, COMPARATIVE ELECTORAL SYSTEMS 11, 21 (1982). See generally GARY W. COX, MAKING VOTES COUNT: STRATEGIC COORDINATION IN THE WORLD'S ELECTORAL SYSTEMS (1997).
14. AMY, supra note 9, ch. 3.
15. Id. ch. 4; KATHLEEN L. BARBER, PROPORTIONAL REPRESENTATION AND ELECTION REFORM IN OHIO 34 (1995).
16. See AMY, supra note 9, chs. 5-6; BARBER, supra note 11, at 299-303.
17. See AMY, supra note 9, chs. 5-6; BARBER, supra note 11, at 299-303.
18. For example, see BARBER, supra note 11, at 13 and ROBERT G. DIXON, JR., DEMOCRATIC REPRESENTATION: REAPPORTIONMENT IN LAW AND POLITICS 41 (1968).
19. For example, see BARBER, supra note 11, at 13 and ROBERT G. DIXON, JR., DEMOCRATIC REPRESENTATION: REAPPORTIONMENT IN LAW AND POLITICS 41 (1968).
20. Vernon Bogdanor, First-Past-the-Post: An Electoral System Which is Difficult to Defend, 34 REPRESENTATION 80, 80 (1997).
21. See AMY, supra note 9, for an especially enthusiastic and wide-ranging endorsement of the benefits of Proportional Representation (PR). An earlier example of scholarly endorsement is GEORCE H. HALLETT, JR., PROPORTIONAL REPRESENTATION - THE KEY TO DEMOCRACY (1937).
22. See AMY, supra note 9, for an especially enthusiastic and wide-ranging endorsement of the benefits of Proportional Representation (PR). An earlier example of scholarly endorsement is GEORCE H. HALLETT, JR., PROPORTIONAL REPRESENTATION - THE KEY TO DEMOCRACY (1937).
23. See infra, Part I.B, for a fuller discussion of PR.
24. PR in its modern form was invented by Thomas Hare in the 1850s. See THOMAS HARE, TREATISE ON THE ELECTION OF REPRESENTATIVES PARLIAMENTARY AND MUNICIPAL (1859). John Stuart Mill, impressed by Hare's analysis, took up the issue and brought it forcefully to public attention. See John Stuart Mill, Considerations on Representative Government (1861), in ON LIBERTY AND OTHER ESSAYS (John Gray ed., Oxford University Press 1991). In Great Britain, an organized movement for electoral reform dedicated to instituting PR has existed since the latter part of the nineteenth century. See REPORT OF THE INDEPENDENT COMMISSION ON THE VOTING SYSTEM 6 (U.K. Stationery Office, October 1998) [hereinafter JENKINS COMMISSION REPORT]. In the United States, some branches of the Progressive Movement offered significant support for PR. See BARBER, supra note 11 ; HALLETT, supra note 15.
25. PR in its modern form was invented by Thomas Hare in the 1850s. See THOMAS HARE, TREATISE ON THE ELECTION OF REPRESENTATIVES PARLIAMENTARY AND MUNICIPAL (1859). John Stuart Mill, impressed by Hare's analysis, took up the issue and brought it forcefully to public attention. See John Stuart Mill, Considerations on Representative Government (1861), in ON LIBERTY AND OTHER ESSAYS (John Gray ed., Oxford University Press 1991). In Great Britain, an organized movement for electoral reform dedicated to instituting PR has existed since the latter part of the nineteenth century. See REPORT OF THE INDEPENDENT COMMISSION ON THE VOTING SYSTEM 6 (U.K. Stationery Office, October 1998) [hereinafter JENKINS COMMISSION REPORT]. In the United States, some branches of the Progressive Movement offered significant support for PR. See BARBER, supra note 11 ; HALLETT, supra note 15.
26. PR in its modern form was invented by Thomas Hare in the 1850s. See THOMAS HARE, TREATISE ON THE ELECTION OF REPRESENTATIVES PARLIAMENTARY AND MUNICIPAL (1859). John Stuart Mill, impressed by Hare's analysis, took up the issue and brought it forcefully to public attention. See John Stuart Mill, Considerations on Representative Government (1861), in ON LIBERTY AND OTHER ESSAYS (John Gray ed., Oxford University Press 1991). In Great Britain, an organized movement for electoral reform dedicated to instituting PR has existed since the latter part of the nineteenth century. See REPORT OF THE INDEPENDENT COMMISSION ON THE VOTING SYSTEM 6 (U.K. Stationery Office, October 1998) [hereinafter JENKINS COMMISSION REPORT]. In the United States, some branches of the Progressive Movement offered significant support for PR. See BARBER, supra note 11 ; HALLETT, supra note 15.
27. PR in its modern form was invented by Thomas Hare in the 1850s. See THOMAS HARE, TREATISE ON THE ELECTION OF REPRESENTATIVES PARLIAMENTARY AND MUNICIPAL (1859). John Stuart Mill, impressed by Hare's analysis, took up the issue and brought it forcefully to public attention. See John Stuart Mill, Considerations on Representative Government (1861), in ON LIBERTY AND OTHER ESSAYS (John Gray ed., Oxford University Press 1991). In Great Britain, an organized movement for electoral reform dedicated to instituting PR has existed since the latter part of the nineteenth century. See REPORT OF THE INDEPENDENT COMMISSION ON THE VOTING SYSTEM 6 (U.K. Stationery Office, October 1998) [hereinafter JENKINS COMMISSION REPORT]. In the United States, some branches of the Progressive Movement offered significant support for PR. See BARBER, supra note 11 ; HALLETT, supra note 15.
28. PR in its modern form was invented by Thomas Hare in the 1850s. See THOMAS HARE, TREATISE ON THE ELECTION OF REPRESENTATIVES PARLIAMENTARY AND MUNICIPAL (1859). John Stuart Mill, impressed by Hare's analysis, took up the issue and brought it forcefully to public attention. See John Stuart Mill, Considerations on Representative Government (1861), in ON LIBERTY AND OTHER ESSAYS (John Gray ed., Oxford University Press 1991). In Great Britain, an organized movement for electoral reform dedicated to instituting PR has existed since the latter part of the nineteenth century. See REPORT OF THE INDEPENDENT COMMISSION ON THE VOTING SYSTEM 6 (U.K. Stationery Office, October 1998) [hereinafter JENKINS COMMISSION REPORT]. In the United States, some branches of the Progressive Movement offered significant support for PR. See BARBER, supra note 11 ; HALLETT, supra note 15.
29. Winner-take-all districted elections were first required for Congress in 1842, see Apportionment Act of 1842, ch. 14, 5 Stat. 491 (1842), and have been used ever since, despite intermittent expirations of formal legal requirements. See LAURENCE F. SCHMECKEBEIER, CONGRESSIONAL APPORTIONMENT 132-35 (1941).
30. Winner-take-all districted elections were first required for Congress in 1842, see Apportionment Act of 1842, ch. 14, 5 Stat. 491 (1842), and have been used ever since, despite intermittent expirations of formal legal requirements. See LAURENCE F. SCHMECKEBEIER, CONGRESSIONAL APPORTIONMENT 132-35 (1941).
31. Leon Weaver, The Rise, Decline, and Resurrection of Proportional Representation in the Local Governments in the United States, in ELECTORAL LAWS AND THEIR POLITICAL CONSEQUENCES 139, 140-42 (Bernard Grofman & Arend Lijphart eds., 1986).
32. At its height, PR was used in nearly two dozen American cities during the first half of the twentieth century. Today it is used only in city council and school committee elections in Cambridge, Massachusetts, and in school board elections in New York City. See AMY, supra note 9, at 10-11.
33. Statement on Action by the Senate Judiciary Committee Concerning Extension of the Voting Rights Act, PUB. PAPERS 552 (May 3, 1982); see also ROBERT A. DAHL, ON DEMOCRACY 134-35 (1998) ("[H]ostility to PR is so widespread in the United States that neither legislatures nor judges give it serious consideration.").
34. Statement on Action by the Senate Judiciary Committee Concerning Extension of the Voting Rights Act, PUB. PAPERS 552 (May 3, 1982); see also ROBERT A. DAHL, ON DEMOCRACY 134-35 (1998) ("[H]ostility to PR is so widespread in the United States that neither legislatures nor judges give it serious consideration.").
35. Guinier describes these events in LANI GUINIER, LIFT EVERY VOICE: TURNING A CIVIL RIGHTS SETBACK INTO A NEW VISION OF SOCIAL JUSTICE (1998). As John Hart Ely has pointedly observed: "As for proportional representation . . . we know it must be pretty radical stuff if an expressed taste for it was enough to cause President Clinton to abandon his friend Lani Guinier after her name had been sent to the Senate for an assistant attorney generalship." John Hart Ely, Gerrymanders: The Good, the Bad, and the Ugly, 50 STAN. L. REV. 607, 610 (1998).
36. Guinier describes these events in LANI GUINIER, LIFT EVERY VOICE: TURNING A CIVIL RIGHTS SETBACK INTO A NEW VISION OF SOCIAL JUSTICE (1998). As John Hart Ely has pointedly observed: "As for proportional representation . . . we know it must be pretty radical stuff if an expressed taste for it was enough to cause President Clinton to abandon his friend Lani Guinier after her name had been sent to the Senate for an assistant attorney generalship." John Hart Ely, Gerrymanders: The Good, the Bad, and the Ugly, 50 STAN. L. REV. 607, 610 (1998).
37. As Douglas Amy has observed, most Americans consider the winner-take-all, single-member-plurality system to be "the most common and natural way to elect officials. We assume that this system is the epitome of democracy and a model for the rest of the free world." AMY, supra note 9, at 1.
38. One of the clearest examples of this is Karlan, Undoing, supra note 2, at 41 (asserting that the use of single-member offices results from a "deeply felt, if unconscious, need to maintain white political control in the guise of protecting democratic values").
39. See generally QUIET REVOLUTION IN THE SOUTH: THE IMPACT OF THE VOTING RIGHTS ACT 1965-1990 (Chandler Davidson and Bernard Grofman eds., 1994) [hereinafter QUIET REVOLUTION] (explaining historically oppressive statutes); BERNARD GROFMAN ET AL., MINORITY REPRESENTATION AND THE QUEST FOR VOTING EQUALITY ch. 1 (1992) (same).
40. See generally QUIET REVOLUTION IN THE SOUTH: THE IMPACT OF THE VOTING RIGHTS ACT 1965-1990 (Chandler Davidson and Bernard Grofman eds., 1994) [hereinafter QUIET REVOLUTION] (explaining historically oppressive statutes); BERNARD GROFMAN ET AL., MINORITY REPRESENTATION AND THE QUEST FOR VOTING EQUALITY ch. 1 (1992) (same).
41. This, at least, seems to be the insinuation made by those who dwell on the feudal origins of the winner-take-all system. See GUINIER, TYRANNY, supra note 1, at 127-29 (describing notions of dependence on existing political frameworks).
42. U.S. CONST, amends. XII, XV, XVII, XIX, XX, XXIV, XXVI.
43. See generally James A. Gardner, Devolution and the Paradox of Democratic Unresponsiveness, 40 S. TEX. L. REV. 759 (1999).
44. For more on the Progressives, see infra Part III.B.
45. 42 U.S.C. § 1973b (1994).
46. See, among others, Shaw v. Reno, 509 U.S. 630 (1993); Miller v. Johnson, 515 U.S. 900 (1995); Bush v. Vera, 517 U.S. 952 (1996).
47. See BARBER, supra note 11, at 26; EDMUND S. MORGAN, INVENTING THE PEOPLE: THE RISE OF POPULAR SOVEREIGNTY IN ENGLAND AND AMERICA 40 (1988).
48. See BARBER, supra note 11, at 26; EDMUND S. MORGAN, INVENTING THE PEOPLE: THE RISE OF POPULAR SOVEREIGNTY IN ENGLAND AND AMERICA 40 (1988).
49. See MORGAN, supra note 32, at 40-48; HANNA FENICHEL PITKIN, REPRESENTATION 244- 252 (1967).
50. See MORGAN, supra note 32, at 40-48; HANNA FENICHEL PITKIN, REPRESENTATION 244-252 (1967).
51. The preeminent chief executive in the United States, the President, is not elected using a system of direct election; the President is elected by the Electoral College, whose members are chosen in such manner as the state legislatures direct. See U.S. CONST, art. II, § 1, amend. XII.
52. The plurality vote is sometimes known, particularly in Britain and many of its former colonies, as "first-past-the-post."
53. See CAL. ELEC. CODE § 15651 (b) (West Supp. 2000); GA. CODE ANN. § 21-2-501 (Supp. 1998).
54. See CAL. ELEC. CODE § 15651 (b) (West Supp. 2000); GA. CODE ANN. § 21-2-501 (Supp. 1998).
55. While election to an office occupied by a single individual is inherently winner-take-all, Pam Karlan has correctly observed that the choice to create a "single-member office," on the other hand, is contingent - it is not necessarily the case that certain powers inherently must be exercised by a single individual rather than a multimember body. Karlan, Undoing, supra note 2. The creation of a multimember body in lieu of a single official also creates the opportunity, though not the logical necessity, for relaxing the winner-take-all aspect of election to the office in question.
56. For discussions of such "place systems" in a legal setting, see generally Mobile v. Bolden, 446 U.S. 55 (1980); White v. Regester, 412 U.S. 755 (1973).
57. Joseph Charles Heim, The Demise of the Confessional State and the Rise of the Idea of a Legitimate Minority, in NOMOS XXXII: MAJORITIES AND MINORITIES 11 (John W. Chapman & Alan Wertheimer eds., 1990); Jane J. Mansbridge, The Rise and Fall of Self-Interest in the Explanation of Political Life, in BEYOND SELF-INTEREST 3, 4-6 (Jane J. Mansbridge ed. 1990).
58. Joseph Charles Heim, The Demise of the Confessional State and the Rise of the Idea of a Legitimate Minority, in NOMOS XXXII: MAJORITIES AND MINORITIES 11 (John W. Chapman & Alan Wertheimer eds., 1990); Jane J. Mansbridge, The Rise and Fall of Self-Interest in the Explanation of Political Life, in BEYOND SELF-INTEREST 3, 4-6 (Jane J. Mansbridge ed. 1990).
59. See generally Arend Lijphart, Constitutional Choices for New Democracies, 2 J. DEMOCRACY 72 (1992) (discussing the benefits of a joint PR and parliamentary system); Arend Lijphart & Bernard Grofman, Choosing an Electoral System, in CHOOSING AN ELECTORAL SYSTEM: ISSUES AND ALTERNATIVES (Arend Lijphart & Bernard Grofman eds., 1984) [hereinafter Lijphart & Grofman, Choosing an Electoral System] (surveying the differences between PR and plurality rule).
60. See generally Arend Lijphart, Constitutional Choices for New Democracies, 2 J. DEMOCRACY 72 (1992) (discussing the benefits of a joint PR and parliamentary system); Arend Lijphart & Bernard Grofman, Choosing an Electoral System, in CHOOSING AN ELECTORAL SYSTEM: ISSUES AND ALTERNATIVES (Arend Lijphart & Bernard Grofman eds., 1984) [hereinafter Lijphart & Grofman, Choosing an Electoral System] (surveying the differences between PR and plurality rule).
61. For good overall accounts of PR, see generally AMY, supra note 9 (arguing for the abolition of the plurality system); MICHAEL DUMMETT, PRINCIPLES OF ELECTORAL REFORM (1997) (explaining the basis on which society should decide the type of electoral system it should use); HALLETT, supra note 15 (asserting the fundamental importance of PR); ROBERT A. NEWLAND, COMPARATIVE ELECTORAL SYSTEMS (1982) (comparing the principal electoral systems).
62. For good overall accounts of PR, see generally AMY, supra note 9 (arguing for the abolition of the plurality system); MICHAEL DUMMETT, PRINCIPLES OF ELECTORAL REFORM (1997) (explaining the basis on which society should decide the type of electoral system it should use); HALLETT, supra note 15 (asserting the fundamental importance of PR); ROBERT A. NEWLAND, COMPARATIVE ELECTORAL SYSTEMS (1982) (comparing the principal electoral systems).
63. For good overall accounts of PR, see generally AMY, supra note 9 (arguing for the abolition of the plurality system); MICHAEL DUMMETT, PRINCIPLES OF ELECTORAL REFORM (1997) (explaining the basis on which society should decide the type of electoral system it should use); HALLETT, supra note 15 (asserting the fundamental importance of PR); ROBERT A. NEWLAND, COMPARATIVE ELECTORAL SYSTEMS (1982) (comparing the principal electoral systems).
64. For good overall accounts of PR, see generally AMY, supra note 9 (arguing for the abolition of the plurality system); MICHAEL DUMMETT, PRINCIPLES OF ELECTORAL REFORM (1997) (explaining the basis on which society should decide the type of electoral system it should use); HALLETT, supra note 15 (asserting the fundamental importance of PR); ROBERT A. NEWLAND, COMPARATIVE ELECTORAL SYSTEMS (1982) (comparing the principal electoral systems).
65. PR contrasts most starkly with at-large elections, which are completely insensitive to the distribution of electoral support for candidates. Although single-member districting is winner-take-all within any given election district, across a jurisdiction it has the potential to allow some degree of proportionality in the composition of the legislature when minorities are not distributed evenly throughout the jurisdiction. When minorities are geographically concentrated, they may constitute a plurality or majority in one or several election districts. This is the premise of the Voting Rights Act, which typically requires the creation of electoral subdivisions as a remedy for minority vote dilution, though only when minorities are geographically compact. Thornburg v. Gingles, 478 U.S. 30 (1986). See also Connor v. Finch, 431 U.S. 407, 415 (1977) (stating that in Fourteenth Amendment vote dilution cases, "this Court has concluded that single-member districts are to be preferred in court-ordered legislative reapportionment plans"). However, single-member districting is functionally no different from at-large elections when minorities are geographically dispersed throughout a jurisdiction. See generally BRUCE CAIN, THE REAPPORTIONMENT PUZZLE (1984). In that situation, geographical election districts cannot be drawn in which the minority comprises a plurality or majority of voters.
66. See AREND LIJPHART, DEMOCRACIES: PATTERNS OF MAJORITARIAN AND CONSENSUS GOVERNMENT IN TWENTY-ONE COUNTRIES 218 (1984) [hereinafter LIJPHART, DEMOCRACIES] (identifying Israel as an example of the consensual-unitary category).
67. DOUGLAS RAE, THE POLITICAL CONSEQUENCES OF ELECTORAL LAWS ch. 7 (1971).
68. See supra note 17 (discussing the origins of PR).
69. See DUMMETT, supra note 41, ch. 13; NEWLAND, supra note 9, at 34, 35.
70. This language has been formalized in section two of the Voting Rights Act (VRA), which provides: "A violation [of this section] is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a [protected] class . . . in that its members have less opportunity than other members of the electorate . . . to elect representatives of their choice." 42 U.S.C. § 1973(b).
71. Mill, supra note 17, at 302.
72. Id. at 303.
73. Id.
74. See AMY, supra note 9, ch. 1; ROBERT RICHIE AND STEVEN HILL, REFLECTING ALL OF US: THE CASE FOR PROPORTIONAL REPRESENTATION 3 (1999). A variation on this approach proceeds from the observation that some citizens who are in a small political minority in the election districts in which they live may "pass their entire adult lives without ever voting for a winning candidate . . . [and] without any realistic hope of influencing a result." JENKINS COMMISSION REPORT, supra note 17, at 9. To the same effect is the REPORT OF THE [NEW ZEALAND] ROYAL COMMISSION ON THE ELECTORAL SYSTEM: TOWARDS A BETTER DEMOCRACY 23-24 (Dec. 1986) [hereinafter REPORT OF THE ROYAL COMMISSION].
75. See AMY, supra note 9, ch. 1; ROBERT RICHIE AND STEVEN HILL, REFLECTING ALL OF US: THE CASE FOR PROPORTIONAL REPRESENTATION 3 (1999). A variation on this approach proceeds from the observation that some citizens who are in a small political minority in the election districts in which they live may "pass their entire adult lives without ever voting for a winning candidate . . . [and] without any realistic hope of influencing a result." JENKINS COMMISSION REPORT, supra note 17, at 9. To the same effect is the REPORT OF THE [NEW ZEALAND] ROYAL COMMISSION ON THE ELECTORAL SYSTEM: TOWARDS A BETTER DEMOCRACY 23-24 (Dec. 1986) [hereinafter REPORT OF THE ROYAL COMMISSION].
76. See AMY, supra note 9, ch. 1; ROBERT RICHIE AND STEVEN HILL, REFLECTING ALL OF US: THE CASE FOR PROPORTIONAL REPRESENTATION 3 (1999). A variation on this approach proceeds from the observation that some citizens who are in a small political minority in the election districts in which they live may "pass their entire adult lives without ever voting for a winning candidate . . . [and] without any realistic hope of influencing a result." JENKINS COMMISSION REPORT, supra note 17, at 9. To the same effect is the REPORT OF THE [NEW ZEALAND] ROYAL COMMISSION ON THE ELECTORAL SYSTEM: TOWARDS A BETTER DEMOCRACY 23-24 (Dec. 1986) [hereinafter REPORT OF THE ROYAL COMMISSION].
77. See AMY, supra note 9, ch. 1; ROBERT RICHIE AND STEVEN HILL, REFLECTING ALL OF US: THE CASE FOR PROPORTIONAL REPRESENTATION 3 (1999). A variation on this approach proceeds from the observation that some citizens who are in a small political minority in the election districts in which they live may "pass their entire adult lives without ever voting for a winning candidate . . . [and] without any realistic hope of influencing a result." JENKINS COMMISSION REPORT, supra note 17, at 9. To the same effect is the REPORT OF THE [NEW ZEALAND] ROYAL COMMISSION ON THE ELECTORAL SYSTEM: TOWARDS A BETTER DEMOCRACY 23-24 (Dec. 1986) [hereinafter REPORT OF THE ROYAL COMMISSION].
78. LAKEMAN, supra note 9, at 166.
79. See Mill, supra note 17, at 305.
80. See STEVEN J. BRAMS & PETER C. FISHBURN, APPROVAL VOTING 3-5 (1983); HALLETT, supra note 15, at 14-18; LAKEMAN, supra note 9, at 22; see also NEWLAND, supra note 9, at 11, 21.
81. See STEVEN J. BRAMS & PETER C. FISHBURN, APPROVAL VOTING 3-5 (1983); HALLETT, supra note 15, at 14-18; LAKEMAN, supra note 9, at 22; see also NEWLAND, supra note 9, at 11, 21.
82. See STEVEN J. BRAMS & PETER C. FISHBURN, APPROVAL VOTING 3-5 (1983); HALLETT, supra note 15, at 14-18; LAKEMAN, supra note 9, at 22; see also NEWLAND, supra note 9, at 11, 21.
83. See STEVEN J. BRAMS & PETER C. FISHBURN, APPROVAL VOTING 3-5 (1983); HALLETT, supra note 15, at 14-18; LAKEMAN, supra note 9, at 22; see also NEWLAND, supra note 9, at 11, 21.
84. Mill, supra note 17, at 303.
85. See AMY, supra note 9, at 41; JENKINS COMMISSION REPORT, supra note 17, at 7.
86. See AMY, supra note 9, at 41; JENKINS COMMISSION REPORT, supra note 17, at 7.
87. DUMMETT, supra note 41, at 21.
88. DIXON, supra note 13, at 17, 437-38.
89. See generally Reynolds v. Sims, 377 U.S. 533 (1964); Wesberry v. Sanders, 376 U.S. 1 (1964).
90. See DIXON, supra note 13, at 41. Dummett goes so far as to describe winner-take-all as a system of rotating "temporary dictatorship." DUMMETT, supra note 41, at 26.
91. See AMY, supra note 9, at 27; GIOVANNI SARTORI, DEMOCRATIC THEORY 107 (1965) [hereinafter SARTORI, DEMOCRATIC THEORY].
92. See AMY, supra note 9, at 27; GIOVANNI SARTORI, DEMOCRATIC THEORY 107 (1965) [hereinafter SARTORI, DEMOCRATIC THEORY].
93. Dieter Nohlen, Two Incompatible, Principles of Representation, in CHOOSING AN ELECTORAL SYSTEM, supra note 40, at 87; see also AMY, supra note 9, at 27 (describing "[t]he notion that legislatures should reflect as accurately as possible the political desires of the public"); BERNARD MANIN, THE PRINCIPLES OF REPRESENTATIVE GOVERNMENT 212 (1997) (stating that PR reflects "the precise state of the balance of forces within the electorate"). Other benefits claimed for PR include producing more issue-oriented campaigns and principled politics, AMY, supra note 9, at 155-75, increasing voter turnout, id. at 140-42, and increasing the number of women and minorities elected, id. at 99-139. See also BARBER, supra note 11, at 307 (finding that PR facilitates the representation of minorities).
94. Dieter Nohlen, Two Incompatible, Principles of Representation, in CHOOSING AN ELECTORAL SYSTEM, supra note 40, at 87; see also AMY, supra note 9, at 27 (describing "[t]he notion that legislatures should reflect as accurately as possible the political desires of the public"); BERNARD MANIN, THE PRINCIPLES OF REPRESENTATIVE GOVERNMENT 212 (1997) (stating that PR reflects "the precise state of the balance of forces within the electorate"). Other benefits claimed for PR include producing more issue-oriented campaigns and principled politics, AMY, supra note 9, at 155-75, increasing voter turnout, id. at 140-42, and increasing the number of women and minorities elected, id. at 99-139. See also BARBER, supra note 11, at 307 (finding that PR facilitates the representation of minorities).
95. Dieter Nohlen, Two Incompatible, Principles of Representation, in CHOOSING AN ELECTORAL SYSTEM, supra note 40, at 87; see also AMY, supra note 9, at 27 (describing "[t]he notion that legislatures should reflect as accurately as possible the political desires of the public"); BERNARD MANIN, THE PRINCIPLES OF REPRESENTATIVE GOVERNMENT 212 (1997) (stating that PR reflects "the precise state of the balance of forces within the electorate"). Other benefits claimed for PR include producing more issue-oriented campaigns and principled politics, AMY, supra note 9, at 155-75, increasing voter turnout, id. at 140-42, and increasing the number of women and minorities elected, id. at 99-139. See also BARBER, supra note 11, at 307 (finding that PR facilitates the representation of minorities).
96. GUINIER, TYRANNY, supra note 1, at 82.
97. See Davis v. Bandemer, 478 U.S. 109, 113 (1986); Mobile v. Bolden, 446 U.S. 55, 58 (1980); see generally MINORITY VOTE DILUTION (Chandler Davidson ed. 1989).
98. Voting Rights Act Amendments of 1982, Pub. L. No. 97-205, § 3, 96 Stat. 131, 134 (codified as amended at 42 U.S.C. § 1973(a) (1994)).
99. The term is now standard usage. See Abrams v. Johnson, 521 U.S. 74, 88, 97 (1997); Shaw v. Hunt, 517 U.S. 899, 902, 911 (1996).
100. This, at least, has been the Supreme Court's major complaint in recent cases about the Justice Department's management of redistricting under the VRA. See Miller v. Johnson, 515 U.S. 900, 927 (1995).
101. See GUINIER, TYRANNY, supra note 1, at 72.
102. Id. at 79.
103. Karlan, Undoing, supra note 2, at 3.
104. Id. at 9.
105. Issacharoff, Polarized Voting, supra note 6, at 1862.
106. Id. at 1861.
107. GUINIER, TYRANNY, supra note 1, at 129.
108. T. Alexander Aleinikoff & Samuel Issacharoff, Race and Redistricting: Drawing Constitutional Lines After Shaw v. Reno, 92 MICH. L. REV. 588, 601 (1993).
109. The Equal Protection Clause doctrine of one-person-one-vote requires that election districts within a jurisdiction be roughly equipopulous. See e.g., Reynolds v. Sims, 377 U.S. 533, 584 (1964); Wesberry v. Sanders, 376 U.S. 1, 17 (1964); Karcher v. Daggett, 462 U.S. 725, 744 (1983).
110. See Whitcomb v. Chavis, 403 U.S. 124, 162-63 (1971); White v. Regester, 412 U.S. 755, 769 (1973).
111. See Connor v. Finch, 431 U.S. 407, 415 (1977) (finding that single-member districts are preferred); Chapman v. Meier, 420 U.S. 1, 18 (1975) (same); Mahan v. Howell, 410 U.S. 315, 333 (1973) (stating that "in fashioning apportionment remedies, those of single-member districts are preferred"); White v. Regester, 412 U.S. 755, 765 (1973) (same); Connor v. Johnson, 402 U.S. 690, 692 (1971) (agreeing with the lower court that "single-member districts are preferable to large multi-member districts as a general matter").
112. 509 U.S. 630 (1993).
113. 515 U.S. 900 (1995).
114. See generally Bush v. Vera, 517 U.S. 952 (1996) (holding that the reapportionment scheme is not narrowly tailored to serve compelling state interests and violated the Equal Protection Clause); Abrams v. Johnson, 521 U.S. 74 (1997) (same); Shaw v. Hunt, 517 U.S. 899 (1996) (same); Holder v. Hall, 512 U.S. 874 (1994) (holding that size of a governing body is not subject to a vote dilution challenge under section two of the VRA); Johnson v. De Grandy, 512 U.S. 997 (1994) (same).
115. Miller, 515 U.S. at 916.
116. The use of race-conscious districting appears to be permissible, however, if it is used as a remedy for demonstrated, past, intentional dilution of minority voting power. Mobile v. Bolden, 446 U.S. 55 (1980).
117. Miller, 515 U.S. at 921. In taking this position, the Court seems to have intimated that section two of the VRA may be unconstitutional, at least as it has been applied by the Justice Department. See James A. Gardner, Liberty, Community and the Constitutional Structure of Political Influence: A Reconsideration of the Right to Vote, 145 U. PA. L. REV. 893, 933-41 (1997).
118. Miller, 515 U.S. at 921. In taking this position, the Court seems to have intimated that section two of the VRA may be unconstitutional, at least as it has been applied by the Justice Department. See James A. Gardner, Liberty, Community and the Constitutional Structure of Political Influence: A Reconsideration of the Right to Vote, 145 U. PA. L. REV. 893, 933-41 (1997).
119. Bush, 517 U.S. at 984. For discussions of the Court's concept of harm in these cases, see Samuel Issacharoff & Thomas C. Goldstein, Identifying the Harm in Racial Gerrymandering Claims, 1 MICH. J. RACE & L. 47 (1996); Richard H. Pildes & Richard G. Niemi, Expressive Harms, "Bizarre Districts," and Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno, 92 MICH. L. REV. 483 (1993).
120. Bush, 517 U.S. at 984. For discussions of the Court's concept of harm in these cases, see Samuel Issacharoff & Thomas C. Goldstein, Identifying the Harm in Racial Gerrymandering Claims, 1 MICH. J. RACE & L. 47 (1996); Richard H. Pildes & Richard G. Niemi, Expressive Harms, "Bizarre Districts," and Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno, 92 MICH. L. REV. 483 (1993).
121. Bush, 517 U.S. at 984. For discussions of the Court's concept of harm in these cases, see Samuel Issacharoff & Thomas C. Goldstein, Identifying the Harm in Racial Gerrymandering Claims, 1 MICH. J. RACE & L. 47 (1996); Richard H. Pildes & Richard G. Niemi, Expressive Harms, "Bizarre Districts," and Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno, 92 MICH. L. REV. 483 (1993).
122. See, among many others, Aleinikoff and Issacharoff, supra note 75 (discussing the impact of Shaw); Andrea Bierstein, Millennium Approaches: The Future of the Voting Rights Act after Shaw, De Grandy, and Holder, 46 HASTINGS L. J. 1457 (1995) (attempting to reconceptualize the Court's voting rights jurisprudence); Richard Briffault, Race and presentation after Miller v. Johnson, 1995 U. CHI. LEGAL FORUM 23 (considering the Supreme Court's approach to racial districting); Issacharoff and Goldstein, supra note 85; Pamela Karlan, Still Hazy after All These Years: Voting Rights in the Post-Shaw Era, 26 CUMB. L. REV. 287 (1996) (looking at the areas of doctrinal instability in gerrymandering cases); Pildes and Niemi, supra note 85 (evaluating the appearance of congressional districts after Shaw); Jamin B. Raskin, The Supreme Court's Racial Double Standard in Redistricting: Unequal Protection in Politics and the Scholarship That Defends It, 14 J. L. & POL. 591 (1998) (exploring the paradoxes in the Court's redistricting cases);
123. See, among many others, Aleinikoff and Issacharoff, supra note 75 (discussing the impact of Shaw); Andrea Bierstein, Millennium Approaches: The Future of the Voting Rights Act after Shaw, De Grandy, and Holder, 46 HASTINGS L. J. 1457 (1995) (attempting to reconceptualize the Court's voting rights jurisprudence); Richard Briffault, Race and presentation after Miller v. Johnson, 1995 U. CHI. LEGAL FORUM 23 (considering the Supreme Court's approach to racial districting); Issacharoff and Goldstein, supra note 85; Pamela Karlan, Still Hazy after All These Years: Voting Rights in the Post-Shaw Era, 26 CUMB. L. REV. 287 (1996) (looking at the areas of doctrinal instability in gerrymandering cases); Pildes and Niemi, supra note 85 (evaluating the appearance of congressional districts after Shaw); Jamin B. Raskin, The Supreme Court's Racial Double Standard in Redistricting: Unequal Protection in Politics and the Scholarship That Defends It, 14 J. L. & POL. 591 (1998) (exploring the paradoxes in the Court's redistricting cases);
124. See, among many others, Aleinikoff and Issacharoff, supra note 75 (discussing the impact of Shaw); Andrea Bierstein, Millennium Approaches: The Future of the Voting Rights Act after Shaw, De Grandy, and Holder, 46 HASTINGS L. J. 1457 (1995) (attempting to reconceptualize the Court's voting rights jurisprudence); Richard Briffault, Race and presentation after Miller v. Johnson, 1995 U. CHI. LEGAL FORUM 23 (considering the Supreme Court's approach to racial districting); Issacharoff and Goldstein, supra note 85; Pamela Karlan, Still Hazy after All These Years: Voting Rights in the Post-Shaw Era, 26 CUMB. L. REV. 287 (1996) (looking at the areas of doctrinal instability in gerrymandering cases); Pildes and Niemi, supra note 85 (evaluating the appearance of congressional districts after Shaw); Jamin B. Raskin, The Supreme Court's Racial Double Standard in Redistricting: Unequal Protection in Politics and the Scholarship That Defends It, 14 J. L. & POL. 591 (1998) (exploring the paradoxes in the Court's redistricting cases);
125. See, among many others, Aleinikoff and Issacharoff, supra note 75 (discussing the impact of Shaw); Andrea Bierstein, Millennium Approaches: The Future of the Voting Rights Act after Shaw, De Grandy, and Holder, 46 HASTINGS L. J. 1457 (1995) (attempting to reconceptualize the Court's voting rights jurisprudence); Richard Briffault, Race and presentation after Miller v. Johnson, 1995 U. CHI. LEGAL FORUM 23 (considering the Supreme Court's approach to racial districting); Issacharoff and Goldstein, supra note 85; Pamela Karlan, Still Hazy after All These Years: Voting Rights in the Post-Shaw Era, 26 CUMB. L. REV. 287 (1996) (looking at the areas of doctrinal instability in gerrymandering cases); Pildes and Niemi, supra note 85 (evaluating the appearance of congressional districts after Shaw); Jamin B. Raskin, The Supreme Court's Racial Double Standard in Redistricting: Unequal Protection in Politics and the Scholarship That Defends It, 14 J. L. & POL. 591 (1998) (exploring the paradoxes in the Court's redistricting cases);
126. See, among many others, Aleinikoff and Issacharoff, supra note 75 (discussing the impact of Shaw); Andrea Bierstein, Millennium Approaches: The Future of the Voting Rights Act after Shaw, De Grandy, and Holder, 46 HASTINGS L. J. 1457 (1995) (attempting to reconceptualize the Court's voting rights jurisprudence); Richard Briffault, Race and presentation after Miller v. Johnson, 1995 U. CHI. LEGAL FORUM 23 (considering the Supreme Court's approach to racial districting); Issacharoff and Goldstein, supra note 85; Pamela Karlan, Still Hazy after All These Years: Voting Rights in the Post-Shaw Era, 26 CUMB. L. REV. 287 (1996) (looking at the areas of doctrinal instability in gerrymandering cases); Pildes and Niemi, supra note 85 (evaluating the appearance of congressional districts after Shaw); Jamin B. Raskin, The Supreme Court's Racial Double Standard in Redistricting: Unequal Protection in Politics and the Scholarship That Defends It, 14 J. L. & POL. 591 (1998) (exploring the paradoxes in the Court's redistricting cases);
127. See, among many others, Aleinikoff and Issacharoff, supra note 75 (discussing the impact of Shaw); Andrea Bierstein, Millennium Approaches: The Future of the Voting Rights Act after Shaw, De Grandy, and Holder, 46 HASTINGS L. J. 1457 (1995) (attempting to reconceptualize the Court's voting rights jurisprudence); Richard Briffault, Race and presentation after Miller v. Johnson, 1995 U. CHI. LEGAL FORUM 23 (considering the Supreme Court's approach to racial districting); Issacharoff and Goldstein, supra note 85; Pamela Karlan, Still Hazy after All These Years: Voting Rights in the Post-Shaw Era, 26 CUMB. L. REV. 287 (1996) (looking at the areas of doctrinal instability in gerrymandering cases); Pildes and Niemi, supra note 85 (evaluating the appearance of congressional districts after Shaw); Jamin B. Raskin, The Supreme Court's Racial Double Standard in Redistricting: Unequal Protection in Politics and the Scholarship That Defends It, 14 J. L. & POL. 591 (1998) (exploring the paradoxes in the Court's redistricting cases);
128. See, among many others, Aleinikoff and Issacharoff, supra note 75 (discussing the impact of Shaw); Andrea Bierstein, Millennium Approaches: The Future of the Voting Rights Act after Shaw, De Grandy, and Holder, 46 HASTINGS L. J. 1457 (1995) (attempting to reconceptualize the Court's voting rights jurisprudence); Richard Briffault, Race and presentation after Miller v. Johnson, 1995 U. CHI. LEGAL FORUM 23 (considering the Supreme Court's approach to racial districting); Issacharoff and Goldstein, supra note 85; Pamela Karlan, Still Hazy after All These Years: Voting Rights in the Post-Shaw Era, 26 CUMB. L. REV. 287 (1996) (looking at the areas of doctrinal instability in gerrymandering cases); Pildes and Niemi, supra note 85 (evaluating the appearance of congressional districts after Shaw); Jamin B. Raskin, The Supreme Court's Racial Double Standard in Redistricting: Unequal Protection in Politics and the Scholarship That Defends It, 14 J. L. & POL. 591 (1998) (exploring the paradoxes in the Court's redistricting cases);
129. Melissa L. Saunders, Equal Protection, Class Legislation, and Colorblindness, 96 MICH. L. REV. 245 (1997) (arguing that the Court's interpretation of the Equal Protection Clause as applied to racial gerrymandering cases does not comport with the original understanding of the Fourteenth Amendment).
130. James U. Blacksher, Dred Scott's Unwon Freedom: The Redistricting Cases as Badges of Slavery, 39 How. L.J. 633, 662 (1996) (quoting DON E. FEHRENBACHER, SLAVERY, LAW & POLITICS: THE DRED SCOTT CASE IN HISTORICAL PERSPECTIVE 38 (1981)).
131. James U. Blacksher, Dred Scott's Unwon Freedom: The Redistricting Cases as Badges of Slavery, 39 How. L.J. 633, 662 (1996) (quoting DON E. FEHRENBACHER, SLAVERY, LAW & POLITICS: THE DRED SCOTT CASE IN HISTORICAL PERSPECTIVE 38 (1981)).
132. Brian Barry has this to say concerning the argument about wasted votes and lack of representation: In recent years . . . supporters of systems of proportional representation in Britain have succeeded in scoring something of a propaganda victory by pressing the idea that the vote for a candidate who comes in third (or lower) in a plurality system is "wasted" and the people who vote for the candidate are "effectively disenfranchised." But then why stop there? The only way of making sense of this argument is by postulating that anyone who voted for a candidate other than the actual winner - even the runner-up - was "effectively disenfranchised"; and it was not long before some academics stumbled on this amazing theoretical breakthrough. I do not think that anyone of ordinary intelligence would be found saying of an election for, say, the post of president of a club: "I didn't vote for the winning candidate. In other words my vote didn't help elect anybody. And that means I was effectively disenfranchised." It is a little alarming that such palpably fallacious reasoning should have the power to impose on people when the context is a parliamentary election. Brian Barry, Is Democracy Special, in DEMOCRACT, POWER AND JUSTICE: ESSAYS IN POLITICAL THEORY 24, 26, 27 (1989) (citation omitted).
133. See infra Part IV.B.2.
134. See Cass R. Sunstein, Interest Groups in American Public Law, 38 STAN. L. REV. 29, 32-33 (1985) (describing the pluralist conception of politics); Mansbridge, supra note 39 (discussing the origins of self-interest based theories).
135. Aristotle, for example, conceived of society as containing distinct classes, and identified certain kinds of government as ones in which one part of society ruled in its own self-interest. ARISTOTLE, POLITICS bk. III, ch. vii. For example, Aristotle defined oligarchy as the rule of the noble or wealthy class in its own self-interest. Id. at bk. III, ch. viii.
136. See RALPH KETCHAM, PRESIDENTS ABOVE PARTY: THE FIRST AMERICAN PRESIDENCY, 1789-1829, at 22-28 (1984) (discussing the growth of the commercial ethic).
137. See generally ADAM SMITH, THE WEALTH OF NATIONS (Ernest Rhys ed., E.P. Dutton & Co. 1910) (1776).
138. JEREMY BENTHAM, A FRAGMENT ON GOVERNMENT AND AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION 3 (Basil Blackwell ed. 1948) (1776).
139. Id. at 126 ("The interest of the community then is, what? - the sum of the interests of the several members who compose it.").
140. Bentham makes this crystal clear in his withering attack on the corruption of public service in the Britain of his day. See JEREMY BENTHAM, PLAN OF PARLIAMENTARY REFORM 2-15 (London, T.J. Wooler 1818) [hereinafter BENTHAM, PLAN OF PARLIAMENTARY REFORM]. Other founders of utilitarianism took the same view. James Mill argued quite directly that government officials will use power to pursue their private self-interest unless restrained. JAMES MILL, AN ESSAY ON GOVERNMENT 50 (Currin V. Shields ed., Liberal Arts Press 1955) (1820). Though somewhat more moderate, John Stuart Mill made much the same point when he described the chief aim in the design of political systems as enabling each individual to "stand up for" his or her own interests, if not directly, then through chosen representatives beholden to their constituents. J.S. Mill, supra note 17, at 245.
141. Bentham makes this crystal clear in his withering attack on the corruption of public service in the Britain of his day. See JEREMY BENTHAM, PLAN OF PARLIAMENTARY REFORM 2-15 (London, T.J. Wooler 1818) [hereinafter BENTHAM, PLAN OF PARLIAMENTARY REFORM]. Other founders of utilitarianism took the same view. James Mill argued quite directly that government officials will use power to pursue their private self-interest unless restrained. JAMES MILL, AN ESSAY ON GOVERNMENT 50 (Currin V. Shields ed., Liberal Arts Press 1955) (1820). Though somewhat more moderate, John Stuart Mill made much the same point when he described the chief aim in the design of political systems as enabling each individual to "stand up for" his or her own interests, if not directly, then through chosen representatives beholden to their constituents. J.S. Mill, supra note 17, at 245.
142. PITKIN, supra note 33, at 119-21, 133-34.
143. See BENTHAM, PLAN OF PARLIAMENTARY REFORM, supra note 96, at 5-30 (discussing the control of self-interests and representation). See also JAMES MILL, supra note 96, at 69-70 (explaining that the less time one spends as a representative, the less he will pursue his self-interest);
144. ROSS HARRISON, BENTHAM 207-10 (1983);
145. Jeremy Waldron, Rights and Majorities: Rousseau Revisited, in NOMOS, supra note 39, 46-48 (discussing Bentham's theories) ;
146. PITKIN, supra note 33, at 200-02 (stating how to make legislators follow the community's interests). The first modern expression of this position is often said to be Schumpeter's statement of the theory of competition for political leadership.
147. See JOSEPH SCHUMPETER, CAPITALISM, SOCIALISM AND DEMOCRACY 269-83 (3d ed. 1950).
148. See generally ARTHUR F. BENTLEY, THE PROCESS OF GOVERNMENT (Peter H. Odegard ed., Belknap Press 1967) (1908); DAVID B. TRUMAN, THE GOVERNMENTAL PROCESS: POLITICAL INTERESTS AND PUBLIC OPINION (1951); ROBERT A. DAHL, A PREFACE TO DEMOCRATIC THEORY (Univ. of Chicago Press 1956) [hereinafter DAHL, A PREFACE TO DEMOCRATIC THEORY]; ROBERT A. DAHL, WHO GOVERNS?: DEMOCRACY AND POWER IN AN AMERICAN CITY (1961).
149. See generally ARTHUR F. BENTLEY, THE PROCESS OF GOVERNMENT (Peter H. Odegard ed., Belknap Press 1967) (1908); DAVID B. TRUMAN, THE GOVERNMENTAL PROCESS: POLITICAL INTERESTS AND PUBLIC OPINION (1951); ROBERT A. DAHL, A PREFACE TO DEMOCRATIC THEORY (Univ. of Chicago Press 1956) [hereinafter DAHL, A PREFACE TO DEMOCRATIC THEORY]; ROBERT A. DAHL, WHO GOVERNS?: DEMOCRACY AND POWER IN AN AMERICAN CITY (1961).
150. See generally ARTHUR F. BENTLEY, THE PROCESS OF GOVERNMENT (Peter H. Odegard ed., Belknap Press 1967) (1908); DAVID B. TRUMAN, THE GOVERNMENTAL PROCESS: POLITICAL INTERESTS AND PUBLIC OPINION (1951); ROBERT A. DAHL, A PREFACE TO DEMOCRATIC THEORY (Univ. of Chicago Press 1956) [hereinafter DAHL, A PREFACE TO DEMOCRATIC THEORY]; ROBERT A. DAHL, WHO GOVERNS?: DEMOCRACY AND POWER IN AN AMERICAN CITY (1961).
151. See generally ARTHUR F. BENTLEY, THE PROCESS OF GOVERNMENT (Peter H. Odegard ed., Belknap Press 1967) (1908); DAVID B. TRUMAN, THE GOVERNMENTAL PROCESS: POLITICAL INTERESTS AND PUBLIC OPINION (1951); ROBERT A. DAHL, A PREFACE TO DEMOCRATIC THEORY (Univ. of Chicago Press 1956) [hereinafter DAHL, A PREFACE TO DEMOCRATIC THEORY]; ROBERT A. DAHL, WHO GOVERNS?: DEMOCRACY AND POWER IN AN AMERICAN CITY (1961).
152. See generally James A. Gardner, Stop Me Before I Quantify Again: The Role of Political Science in the Study of Election Law, 32 LOY. L.A. L. REV. 1141 (1999); Mansbridge, supra note 39.
153. See generally James A. Gardner, Stop Me Before I Quantify Again: The Role of Political Science in the Study of Election Law, 32 LOY. L.A. L. REV. 1141 (1999); Mansbridge, supra note 39.
154. GUINIER, TYRANNY, supra note 1, at 94; see Gardner, supra note 100, at 92-117.
155. GUINIER, TYRANNY, supra note 1, at 94; see Gardner, supra note 100, at 92-117.
156. GUINIER, TYRANNY, supra note 1, at 94.
157. Id. at 104.
158. Pamela S. Karlan, The Rights to Vote: Some Pessimism About Formalism, 71 TEX. L. REV. 1705, 1740 (1993) [hereinafter Karlan, The Rights to Vote].
159. Richard H. Pildes, Principled Limitations on Racial and Partisan Redistricting, 106 YALE L.J. 2505, 2536 (1997). Critics of the VRA commonly contend that VRA supporters are committed to a form of racial interest representation. See Katharine Inglis Butler, Affirmative Racial Gerrymandering: Rhetoric and Reality, 26 CUMB. L. REV. 313, 317-18, 360 (1996); ABIGAIL M. THERNSTROM, WHOSE VOTES COUNT? (1987).
160. Richard H. Pildes, Principled Limitations on Racial and Partisan Redistricting, 106 YALE L.J. 2505, 2536 (1997). Critics of the VRA commonly contend that VRA supporters are committed to a form of racial interest representation. See Katharine Inglis Butler, Affirmative Racial Gerrymandering: Rhetoric and Reality, 26 CUMB. L. REV. 313, 317-18, 360 (1996); ABIGAIL M. THERNSTROM, WHOSE VOTES COUNT? (1987).
161. Richard H. Pildes, Principled Limitations on Racial and Partisan Redistricting, 106 YALE L.J. 2505, 2536 (1997). Critics of the VRA commonly contend that VRA supporters are committed to a form of racial interest representation. See Katharine Inglis Butler, Affirmative Racial Gerrymandering: Rhetoric and Reality, 26 CUMB. L. REV. 313, 317-18, 360 (1996); ABIGAIL M. THERNSTROM, WHOSE VOTES COUNT? (1987).
162. GUINIER, TYRANNY, supra note 1, at 135.
163. Id. at 95.
164. Id. at 102.
165. Karlan, Undoing, supra note 2, at 14.
166. As Bentham put it: "In order that the universal interest may be advanced, all particular interests must be comprehended and advanced . . . ." BENTHAM, PLAN OF PARLIAMENTARY REFORM, supra note 96, at 24. Moreover, the effective aggregation of these interests requires that each individual have a "share, of a certain degree of magnitude, in the choice of a person to form one in the body of the representatives of the people," and that this share be equal. Id. at 25. Bentham concluded from these premises that universal suffrage was necessary for accurate maximization of social utility. See id. at 24-25. J.S. Mill later argued that these conditions require PR as well. Mill, supra note 17, at 303-07.
167. GUINIER, TYRANNY, supra note 1, at 125, 134. See also Mill, supra note 17, at 303-07.
168. GUINIER, TYRANNY, supra note 1, at 125, 134. See also Mill, supra note 17, at 303-07.
169. GUINIER, TYRANNY, supra note 1, at 105; Mill, supra note 17, at 302-03.
170. GUINIER, TYRANNY, supra note 1, at 105; Mill, supra note 17, at 302-03.
171. Aleinikoff & Issacharoff, supra note 75, at 601.
172. This conception of representation has been aptly referred to as the "transmission belt" theory. NANCY L. SCHWARTZ, THE BLUE GUITAR: POLITICAL REPRESENTATION AND COMMUNITY 25 (1988). According to Schwartz, in the Benthamite "delegate" version of the transmission belt theory, the representative is delegated by others to act according to their wishes, yet in a way "that also accords with the good of the whole state." Id. at 28.
173. See supra note 99 (citing sources discussing pluralist political theory).
174. De Grazia goes so far as to call PR an outgrowth of the old system of "estates," in which certain classes of society are understood to have fixed interests, and in which representatives from each estate are selected to press the interests of the estate in the legislative assembly. See ALFRED DE GRAZIA, PUBLIC AND REPUBLIC 195, 205 (1951). On PR's assumption of the loyalty of representatives, see also MANIN, supra note 62, at 211.
175. De Grazia goes so far as to call PR an outgrowth of the old system of "estates," in which certain classes of society are understood to have fixed interests, and in which representatives from each estate are selected to press the interests of the estate in the legislative assembly. See ALFRED DE GRAZIA, PUBLIC AND REPUBLIC 195, 205 (1951). On PR's assumption of the loyalty of representatives, see also MANIN, supra note 62, at 211.
176. This assumption is almost certainly somewhat oversimplified. An enure body of political science literature, originating with ANTHONY DOWNS, AN ECONOMIC THEORY OF DEMOCRACY (1957), argues that candidates tend not to rely solely on appeals to a district majority because that is not the most reliable way to assure their election. Instead, candidates improve their chances by adopting positions that appeal to a broader spectrum of the electorate. Contemporary versions of the Downsian analysis use a spatial metaphor to array voters along an ideological spectrum. These theories then postulate that each voter votes for the candidate whose positions fall on this spectrum closest to the voter's personal views. It follows that candidates will attract the most support if they adopt the policy preferences of the "median voter" in their district. A candidate who attempted to appeal solely to a district majority would adopt the policy preferences of the median voter of the majority, rather than the median voter of the entire electorate. See Elizabeth R. Gerber & Rebecca B. Morton, Primary Election Systems and Representation, 14 J.L. ECON. & ORG. 304, 321-22 (1998) (describing an analogous dynamic in party primary elections, where candidates try to position themselves to appeal to the median preferences of members of their party). However, these positions may
177. This assumption is almost certainly somewhat oversimplified. An enure body of political science literature, originating with ANTHONY DOWNS, AN ECONOMIC THEORY OF DEMOCRACY (1957), argues that candidates tend not to rely solely on appeals to a district majority because that is not the most reliable way to assure their election. Instead, candidates improve their chances by adopting positions that appeal to a broader spectrum of the electorate. Contemporary versions of the Downsian analysis use a spatial metaphor to array voters along an ideological spectrum. These theories then postulate that each voter votes for the candidate whose positions fall on this spectrum closest to the voter's personal views. It follows that candidates will attract the most support if they adopt the policy preferences of the "median voter" in their district. A candidate who attempted to appeal solely to a district majority would adopt the policy preferences of the median voter of the majority, rather than the median voter of the entire electorate. See Elizabeth R. Gerber & Rebecca B. Morton, Primary Election Systems and Representation, 14 J.L. ECON. & ORG. 304, 321-22 (1998) (describing an analogous dynamic in party primary elections, where candidates try to position themselves to appeal to the median preferences of members of their party). However, these positions may differ, meaning that the attempt to appeal exclusively to the majority would cause the candidate to take a position that would lose support among voters outside the majority. To increase their chances of election, candidates thus usually attempt to appeal to voters beyond their core base of supporters. Since successful candidates usually take these broader positions, as representatives they probably press in the legislature some positions that are in the interests of many of their constituents who voted for other, losing candidates. For an examination of some of the most recent disputes in Downsian voting analysis, see generally Anders Westholm, Distance Versus Direction: The Illusory Defeat of the Proximity Theory of Electoral Choice, 91 AM. POL. Sei. RKV. 865 (1997).
178. This assumption is almost certainly somewhat oversimplified. An enure body of political science literature, originating with ANTHONY DOWNS, AN ECONOMIC THEORY OF DEMOCRACY (1957), argues that candidates tend not to rely solely on appeals to a district majority because that is not the most reliable way to assure their election. Instead, candidates improve their chances by adopting positions that appeal to a broader spectrum of the electorate. Contemporary versions of the Downsian analysis use a spatial metaphor to array voters along an ideological spectrum. These theories then postulate that each voter votes for the candidate whose positions fall on this spectrum closest to the voter's personal views. It follows that candidates will attract the most support if they adopt the policy preferences of the "median voter" in their district. A candidate who attempted to appeal solely to a district majority would adopt the policy preferences of the median voter of the majority, rather than the median voter of the entire electorate. See Elizabeth R. Gerber & Rebecca B. Morton, Primary Election Systems and Representation, 14 J.L. ECON. & ORG. 304, 321-22 (1998) (describing an analogous dynamic in party primary elections, where candidates try to position themselves to appeal to the median preferences of members of their party). However, these positions may differ, meaning that the attempt to appeal exclusively to the majority would cause the candidate to take a position that would lose support among voters outside the majority. To increase their chances of election, candidates thus usually attempt to appeal to voters beyond their core base of supporters. Since successful candidates usually take these broader positions, as representatives they probably press in the legislature some positions that are in the interests of many of their constituents who voted for other, losing candidates. For an examination of some of the most recent disputes in Downsian voting analysis, see generally Anders Westholm, Distance Versus Direction: The Illusory Defeat of the Proximity Theory of Electoral Choice, 91 AM. POL. Sei. RKV. 865 (1997).
179. MANIN, supra note 62, at 212.
180. As Richard Katz observes, strict proportionality is necessary only to what he calls "legislative democracy," RICHARD S. KATZ, DEMOCRACY AND ELECTIONS 128 (1997) [hereinafter KATZ, DEMOCRACY AND ELECTIONS], which he defines as a system for handling multiple alternatives through logrolling and trade offs, and which thus requires a multiparty system and proportionality so that groups can benefit fairly. Id. at 42-44.
181. Issacharoff, Polarized Voting, supra note 6, at 1890.
182. See supra note 17 (discussing the origins of PR in Great Britain and the United States).
183. See Quentin L. Quade, PR and Democratic Statecraft, 2 J. DEMOCRACT, Summer 1991, at 36-37; RICHARD S. KATZ, A THEORY OF PARTIES AND ELECTORAL SYSTEMS 24 (1980) [hereinafter KATZ, THEORY OF PARTIES].
184. See Quentin L. Quade, PR and Democratic Statecraft, 2 J. DEMOCRACT, Summer 1991, at 36-37; RICHARD S. KATZ, A THEORY OF PARTIES AND ELECTORAL SYSTEMS 24 (1980) [hereinafter KATZ, THEORY OF PARTIES].
185. See Guy Lardeyret, The Problem with PR, 2 J. DEMOCRACY, Summer 1991, at 30 (stating that PR gives preference to minorities). Amy disputes this. AMY, supra note 9, ch. 8.
186. See Guy Lardeyret, The Problem with PR, 2 J. DEMOCRACY, Summer 1991, at 30 (stating that PR gives preference to minorities). Amy disputes this. AMY, supra note 9, ch. 8.
187. KATZ, THEORY OF PARTIES, supra note 122, at 121.
188. See Maurice Duverger, Which Is the Best Electoral System?, in CHOOSING AN ELECTORAL SYSTEM, supra note 40, at 31, 32; see also PETER HAIN, PROPORTIONAL MISREPRESENTATION: THE CASE AGAINST PR IN BRITAIN 30-32, 45-46 (1986) (discussing, as an example, post-election coalition formation in the former West Germany, and summarizing the main points against PR).
189. See Maurice Duverger, Which Is the Best Electoral System?, in CHOOSING AN ELECTORAL SYSTEM, supra note 40, at 31, 32; see also PETER HAIN, PROPORTIONAL MISREPRESENTATION: THE CASE AGAINST PR IN BRITAIN 30-32, 45-46 (1986) (discussing, as an example, post-election coalition formation in the former West Germany, and summarizing the main points against PR).
190. See Lijphart & Grofman, Choosing an Electoral System, supra note 40, at 3, 5; Quade, supra note 122, at 39; see also SCHUMPETER, supra note 98, at 272-273; ELAINE SPITZ, MAJORITY RULE 26, 40 (1984).
191. See Lijphart & Grofman, Choosing an Electoral System, supra note 40, at 3, 5; Quade, supra note 122, at 39; see also SCHUMPETER, supra note 98, at 272-273; ELAINE SPITZ, MAJORITY RULE 26, 40 (1984).
192. See Lijphart & Grofman, Choosing an Electoral System, supra note 40, at 3, 5; Quade, supra note 122, at 39; see also SCHUMPETER, supra note 98, at 272-273; ELAINE SPITZ, MAJORITY RULE 26, 40 (1984).
193. See Lijphart & Grofman, Choosing an Electoral System, supra note 40, at 3, 5; Quade, supra note 122, at 39; see also SCHUMPETER, supra note 98, at 272-273; ELAINE SPITZ, MAJORITY RULE 26, 40 (1984).
194. GIOVANNI SARTORI, COMPARATIVE CONSTITUTIONAL ENGINEERING: AN INQUIRY INTO STRUCTURES, INCENTIVES AND OUTCOMES 5 (1994).
195. See also JENKINS COMMISSION REPORT, supra note 17, at 5; REPORT OF THE ROYAL COMMISSION, supra note 51, at 6.
196. PR supporters respond that majoritarian governments may also have to compromise. See AMY, supra note 9, ch. 8. Another, related argument made in defense of winner-take-all electoral systems is that they provide stability. According to what has come to be known as "Duverger's Law," winner-take-all electoral systems tend to produce two-party systems, whereas PR tends to produce multi-partyism. See generally MAURICE DUVERGER, POLITICAL PARTIES: THEIR ORGANIZATION AND ACTIVITY IN THE MODERN STATE (1954) (outlining electoral law and party methodology); William H. Riker, Duverger's Law Revisited, in ELECTORAL LAWS AND THEIR POLITICAL CONSEQUENCES, supra note 19 (discussing the ambiguity in Duverger's claim). Keeping the number of parties down to two makes it easier to produce stable one-party government. Lijphart & Grofman, Choosing an Electoral System, supra note 40, at 5; see also KATZ, THEORY OF PARTIES, supra note 122.
197. PR supporters respond that majoritarian governments may also have to compromise. See AMY, supra note 9, ch. 8. Another, related argument made in defense of winner-take-all electoral systems is that they provide stability. According to what has come to be known as "Duverger's Law," winner-take-all electoral systems tend to produce two-party systems, whereas PR tends to produce multi-partyism. See generally MAURICE DUVERGER, POLITICAL PARTIES: THEIR ORGANIZATION AND ACTIVITY IN THE MODERN STATE (1954) (outlining electoral law and party methodology); William H. Riker, Duverger's Law Revisited, in ELECTORAL LAWS AND THEIR POLITICAL CONSEQUENCES, supra note 19 (discussing the ambiguity in Duverger's claim). Keeping the number of parties down to two makes it easier to produce stable one-party government. Lijphart & Grofman, Choosing an Electoral System, supra note 40, at 5; see also KATZ, THEORY OF PARTIES, supra note 122.
198. PR supporters respond that majoritarian governments may also have to compromise. See AMY, supra note 9, ch. 8. Another, related argument made in defense of winner-take-all electoral systems is that they provide stability. According to what has come to be known as "Duverger's Law," winner-take-all electoral systems tend to produce two-party systems, whereas PR tends to produce multi-partyism. See generally MAURICE DUVERGER, POLITICAL PARTIES: THEIR ORGANIZATION AND ACTIVITY IN THE MODERN STATE (1954) (outlining electoral law and party methodology); William H. Riker, Duverger's Law Revisited, in ELECTORAL LAWS AND THEIR POLITICAL CONSEQUENCES, supra note 19 (discussing the ambiguity in Duverger's claim). Keeping the number of parties down to two makes it easier to produce stable one-party government. Lijphart & Grofman, Choosing an Electoral System, supra note 40, at 5; see also KATZ, THEORY OF PARTIES, supra note 122.
199. PR supporters respond that majoritarian governments may also have to compromise. See AMY, supra note 9, ch. 8. Another, related argument made in defense of winner-take-all electoral systems is that they provide stability. According to what has come to be known as "Duverger's Law," winner-take-all electoral systems tend to produce two-party systems, whereas PR tends to produce multi-partyism. See generally MAURICE DUVERGER, POLITICAL PARTIES: THEIR ORGANIZATION AND ACTIVITY IN THE MODERN STATE (1954) (outlining electoral law and party methodology); William H. Riker, Duverger's Law Revisited, in ELECTORAL LAWS AND THEIR POLITICAL CONSEQUENCES, supra note 19 (discussing the ambiguity in Duverger's claim). Keeping the number of parties down to two makes it easier to produce stable one-party government. Lijphart & Grofman, Choosing an Electoral System, supra note 40, at 5; see also KATZ, THEORY OF PARTIES, supra note 122.
200. Lijphart & Grofman, Choosing an Electoral System, supra note 40, at 6.
201. See HAIN, supra note 125, at 2; Lardeyret, supra note 123, at 31; AUSTIN RANNEY, THE DOCTRINE OF RESPONSIBLE PARTY GOVERNMENT: ITS ORIGINS AND PRESENT STATE (1962); Michael Pinto-Duschinsky, Send the Rascals Packing: Defects of Proportional Representation and the Virtues of the Westminster Model, 25 TIMES LITERARY SUPPLEMENT 10, 10-11 (Sept. 25, 1998).
202. See HAIN, supra note 125, at 2; Lardeyret, supra note 123, at 31; AUSTIN RANNEY, THE DOCTRINE OF RESPONSIBLE PARTY GOVERNMENT: ITS ORIGINS AND PRESENT STATE (1962); Michael Pinto-Duschinsky, Send the Rascals Packing: Defects of Proportional Representation and the Virtues of the Westminster Model, 25 TIMES LITERARY SUPPLEMENT 10, 10-11 (Sept. 25, 1998).
203. See HAIN, supra note 125, at 2; Lardeyret, supra note 123, at 31; AUSTIN RANNEY, THE DOCTRINE OF RESPONSIBLE PARTY GOVERNMENT: ITS ORIGINS AND PRESENT STATE (1962); Michael Pinto-Duschinsky, Send the Rascals Packing: Defects of Proportional Representation and the Virtues of the Westminster Model, 25 TIMES LITERARY SUPPLEMENT 10, 10-11 (Sept. 25, 1998).
204. See HAIN, supra note 125, at 2; Lardeyret, supra note 123, at 31; AUSTIN RANNEY, THE DOCTRINE OF RESPONSIBLE PARTY GOVERNMENT: ITS ORIGINS AND PRESENT STATE (1962); Michael Pinto-Duschinsky, Send the Rascals Packing: Defects of Proportional Representation and the Virtues of the Westminster Model, 25 TIMES LITERARY SUPPLEMENT 10, 10-11 (Sept. 25, 1998).
205. J.A. Chandler, The Plurality Vote: A Reappraisal, 30 POL. STUD. 87, 92 (1982).
206. Pinto-Duschinsky, supra note 130, at 10.
207. KATZ, THEORY OF PARTIES, supra note 122, at 122; Lardeyret, supra note 123, at 33; Quade, supra note 122, at 41; JENKINS COMMISSION REPORT, supra note 17, at 5.
208. KATZ, THEORY OF PARTIES, supra note 122, at 122; Lardeyret, supra note 123, at 33; Quade, supra note 122, at 41; JENKINS COMMISSION REPORT, supra note 17, at 5.
209. KATZ, THEORY OF PARTIES, supra note 122, at 122; Lardeyret, supra note 123, at 33; Quade, supra note 122, at 41; JENKINS COMMISSION REPORT, supra note 17, at 5.
210. KATZ, THEORY OF PARTIES, supra note 122, at 122; Lardeyret, supra note 123, at 33; Quade, supra note 122, at 41; JENKINS COMMISSION REPORT, supra note 17, at 5.
211. Quade, supra note 122, at 41.
212. Lardeyret, supra note 123, at 33. See also KATZ, THEORY OF PARTIES, supra note 122, at 27.
213. Lardeyret, supra note 123, at 33. See also KATZ, THEORY OF PARTIES, supra note 122, at 27.
214. Peter J. Taylor, The Case for Proportional Tenure: A Defense of the British Electoral System, in CHOOSING AN ELECTORAL SYSTEM, supra note 40, at 53. But see CHARLES R. BEITZ, POLITICAL EQUALITY: AN ESSAY IN DEMOCRATIC THEORY ch. 6 (1989).
215. Peter J. Taylor, The Case for Proportional Tenure: A Defense of the British Electoral System, in CHOOSING AN ELECTORAL SYSTEM, supra note 40, at 53. But see CHARLES R. BEITZ, POLITICAL EQUALITY: AN ESSAY IN DEMOCRATIC THEORY ch. 6 (1989).
216. See SARTORI, DEMOCRATIC THEORY, supra note 61, at 107 ("[I]t is symptomatic that the very critics of proportional representation at a certain point accept the ground of discussion selected by their adversaries . . . .").
217. See CHRISTOPHER J. BERRY, THE IDEA OF A DEMOCRATIC COMMUNITY 8-9 (1989).
218. VIRGINIA HELD, THE PUBLIC INTEREST AND INDIVIDUAL INTERESTS, at viii, ch. 5 (1970).
219. KATZ., DEMOCRACY AND ELECTIONS, supra note 119, at 30.
220. RICHARD E. FLATHMAN, THE PUBLIC INTEREST: AN ESSAY CONCERNING THE NORMATIVE DISCOURSE OF POLITICS 53-60 (1966).
221. HELD, supra note 139, at 135.
222. Id. at 136-40. This idea persisted well into the Enlightenment. See DON HERZOG, HAPPY SLAVES: A CRITIQUE OF CONSENT THEORY ch. 2 (1989).
223. See GEORGE C. CHRISTIE, JURISPRUDENCE chs. 1-2 (1973); LLOYD L. WEINREB, NATURAL LAW AND JUSTICE chs. 1-3 (1987); seer generally NATURAL LAW THEORY: CONTEMPORARY ESSAYS (Robert P. George ed., 1992).
224. See GEORGE C. CHRISTIE, JURISPRUDENCE chs. 1-2 (1973); LLOYD L. WEINREB, NATURAL LAW AND JUSTICE chs. 1-3 (1987); seer generally NATURAL LAW THEORY: CONTEMPORARY ESSAYS (Robert P. George ed., 1992).
225. See GEORGE C. CHRISTIE, JURISPRUDENCE chs. 1-2 (1973); LLOYD L. WEINREB, NATURAL LAW AND JUSTICE chs. 1-3 (1987); seer generally NATURAL LAW THEORY: CONTEMPORARY ESSAYS (Robert P. George ed., 1992).
226. HELD, supra note 139, at 141.
227. JEAN-JACQUES ROUSSEAU, THE SOCIAL CONTRACT 72 (Maurice Cranston trans., 1968) (1762).
228. See DE GRAZIA, supra note 116, at 38, 41.
229. I WILLIAM BLACKSTONE, COMMENTARIES *42.
230. GERALD J. POSTEMA, BENTHAM AND THE COMMON LAW TRADITION 64 (1986).
231. THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).
232. MORTON WHITE, THE PHILOSOPHY OF THE AMERICAN REVOLUTION 77 (1978).
233. Id. at 61.
234. Id. at 94, 95.
235. JOSEPH M. BESSETTE, THE MILD VOICE OF REASON 28 (1994); see also JAMES A. MORONE, THE DEMOCRATIC WISH: POPULAR PARTICIPATION AND THE LIMITS OF AMERICAN GOVERNMENT 41 (rev. ed. 1998) (asserting that the republicanism of the founding period involved "the subordination of individual interests to the common good," which contemplated "a distinct public interest with an objective existence of its own").
236. JOSEPH M. BESSETTE, THE MILD VOICE OF REASON 28 (1994); see also JAMES A. MORONE, THE DEMOCRATIC WISH: POPULAR PARTICIPATION AND THE LIMITS OF AMERICAN GOVERNMENT 41 (rev. ed. 1998) (asserting that the republicanism of the founding period involved "the subordination of individual interests to the common good," which contemplated "a distinct public interest with an objective existence of its own").
237. Wilson Carey McWilliams, The Anti-Federalists, Representation, and Party, 84 Nw. U. L. REV. 12, 14 (1989).
238. GORDON S. WOOD, THE RADICALISM OF THE AMERICAN REVOLUTION 362 (1992) [hereinafter WOOD, RADICALISM]. Wood, however, maintains that the Federalist certainty in universal truths was by the 1810s quickly and dramatically replaced by a more open-ended notion of truth as diverse and considerably more democratic, an episode that Wood calls "an epistemological crisis as severe as any in [American] history."
239. Id.;
240. see also Gordon S. Wood, The Democratization of Mind in the American Revolution, in THE MORAL FOUNDATIONS OF THE AMERICAN REPUBLIC 109 (Robert H. Horwitz ed., University Press of Virginia, 3d ed. 1986) (making a similar argument). If Wood's point is that competing views of truth began to emerge as genuine competitors, then he is surely correct. However, if he means to say that the Federalist conception of truth as objective and unitary was completely replaced, he has grossly overstated his case, as the ensuing discussion in text of the Progressives makes clear.
241. McWilliams, supra note 155, at 21.
242. THE FEDERALIST No. 10 (James Madison).
243. Id. at 60-61 (Jacob E. Cooke ed., 1961).
244. Id. at 57.
245. Interestingly, one of the most important contemporary pluralist critiques of Madison implicitly acknowledges this point. In his Preface, Robert Dahl criticizes Madison's definition of majority faction on the ground that we can never know what would amount to such a faction because Madison never specifies the rights and interests of the citizenry in opposition to which such a faction would be aligned. Moreover, Dahl argues, the majority itself is by definition excluded from defining what constitutes a faction, because on Madison's assumptions of self-interested behavior, it would never so define itself. Similarly, a minority cannot do so since it would by hypothesis use that power tyrannically. DAHL, A PREFACE TO DEMOCRATIC THEORY, supra note 99, at 25-27. This argument is greatly overstated, but it nevertheless exemplifies vividly that Madison must have envisioned not only an objective common good, but one that was accessible only to some kind of elite that has both the knowledge and wisdom to discern it and the virtue to pursue it. See THE FEDERALIST No. 57, at 384 (James Madison) (Jacob E. Cooke ed., 1961) ("The aim of every political constitution is or ought to be first to obtain for rulers men, who possess most wisdom to discern, and most virtue to pursue the common good of the society . . . .").
246. Interestingly, one of the most important contemporary pluralist critiques of Madison implicitly acknowledges this point. In his Preface, Robert Dahl criticizes Madison's definition of majority faction on the ground that we can never know what would amount to such a faction because Madison never specifies the rights and interests of the citizenry in opposition to which such a faction would be aligned. Moreover, Dahl argues, the majority itself is by definition excluded from defining what constitutes a faction, because on Madison's assumptions of self- interested behavior, it would never so define itself. Similarly, a minority cannot do so since it would by hypothesis use that power tyrannically. DAHL, A PREFACE TO DEMOCRATIC THEORY, supra note 99, at 25-27. This argument is greatly overstated, but it nevertheless exemplifies vividly that Madison must have envisioned not only an objective common good, but one that was accessible only to some kind of elite that has both the knowledge and wisdom to discern it and the virtue to pursue it. See THE FEDERALIST No. 57, at 384 (James Madison) (Jacob E. Cooke ed., 1961) ("The aim of every political constitution is or ought to be first to obtain for rulers men, who possess most wisdom to discern, and most virtue to pursue the common good of the society . . . .").
247. RICHARD HOFSTADTER, THE AGE OF REFORM 5 (1955) [hereinafter HOFSTADTER, AGE OF REFORM].
248. See generally HOFSTADTER, AGE OF REFORM, supra note 162; RICHARD S. CHILDS, CIVIC VICTORIES: THE STORY OF AN UNFINISHED REVOLUTION (1952); BENJAMIN PARKE DE WITT, THE PROGRESSIVE MOVEMENT (1915).
249. See generally HOFSTADTER, AGE OF REFORM, supra note 162; RICHARD S. CHILDS, CIVIC VICTORIES: THE STORY OF AN UNFINISHED REVOLUTION (1952); BENJAMIN PARKE DE WITT, THE PROGRESSIVE MOVEMENT (1915).
250. See generally HOFSTADTER, AGE OF REFORM, supra note 162; RICHARD S. CHILDS, CIVIC VICTORIES: THE STORY OF AN UNFINISHED REVOLUTION (1952); BENJAMIN PARKE DE WITT, THE PROGRESSIVE MOVEMENT (1915).
251. DENNIS R. JUDD, THE POLITICS OF AMERICAN CITIES: PRIVATE POWER AND PUBLIC POLICY 101 (1979).
252. ROBERT H. WIEBE, THE SEARCH FOR ORDER 1877-1920, at 162 (1967) [hereinafter WIEBE, ORDER]; see MORONE, supra note 154, at 98, 113.
253. ROBERT H. WIEBE, THE SEARCH FOR ORDER 1877-1920, at 162 (1967) [hereinafter WIEBE, ORDER]; see MORONE, supra note 154, at 98, 113.
254. See EUGENE C. LEE, THE POLITICS OF NONPARTISANSHIP: A STUDY OF CALIFORNIA CITY ELECTIONS 34 (1960).
255. LEON WEAVER, NONPARTISAN ELECTIONS IN LOCAL GOVERNMENT: SOME KEY ISSUES AND SUGGESTED GUIDE LINES FOR DECISION-MAKING 20 (1971).
256. See id.; Charles R. Adrian, Some General Characteristics of Nonpartisan Elections, 46 AM. POL. SCI. REV. 766 (1952); see also LEE, supra note 166, at 34-35 (discussing the role of nonpartisan politics in California).
257. See id.; Charles R. Adrian, Some General Characteristics of Nonpartisan Elections, 46 AM. POL. SCI. REV. 766 (1952); see also LEE, supra note 166, at 34-35 (discussing the role of nonpartisan politics in California).
258. THERESA MAN LING LEE, POLITICS AND TRUTH: POLITICAL THEORY AND THE POSTMODERNIST CHALLENGE 15 (1997).
259. Frank I. Michelman, Must Constitutional Democracy Be "Responsive"'?, 107 ETHICS 706, 709 (1997).
260. EDMUND S. MORGAN, INVENTING THE PEOPLE: THE RISE OF POPULAR SOVEREIGNTY IN ENGLAND AND AMERICA 39-42 (1989).
261. Id. at 44.
262. Id. at 47.
263. BERNARD BAILYN, THE ORIGINS OF AMERICAN POLITICS 36 (1970).
264. Richard R. Beeman, Deference, Republicanism, and the Emergence of Popular Politics in Eighteenth-Century America, 49 WM. & MARY Q. 401, 401 (1992).
265. BAILYN, supra note 174, at 36-37. See also RICHARD HOFSTADTER, THE IDEA OF A PARTY SYSTEM: THE RISE OF LEGITIMATE OPPOSITION IN THE UNITED STATES, 1780-1840, at 9 (1969) [hereinafter HOFSTADTER, PARTY SYSTEM] (finding that the "root idea" of Anglo-American political thought about parties was that "parties are evil").
266. BAILYN, supra note 174, at 36-37. See also RICHARD HOFSTADTER, THE IDEA OF A PARTY SYSTEM: THE RISE OF LEGITIMATE OPPOSITION IN THE UNITED STATES, 1780-1840, at 9 (1969) [hereinafter HOFSTADTER, PARTY SYSTEM] (finding that the "root idea" of Anglo-American political thought about parties was that "parties are evil").
267. See generally DAHL, A PREFACE TO DEMOCRATIC THEORY, supra note 99; C.B. MACPHERSON, THE POLITICAL THEORY OF POSSESSIVE INDIVIDUALISM: HOBBES TO LOCKE (1962); MICHAEL J. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE (1982).
268. See generally DAHL, A PREFACE TO DEMOCRATIC THEORY, supra note 99; C.B. MACPHERSON, THE POLITICAL THEORY OF POSSESSIVE INDIVIDUALISM: HOBBES TO LOCKE (1962); MICHAEL J. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE (1982).
269. See generally DAHL, A PREFACE TO DEMOCRATIC THEORY, supra note 99; C.B. MACPHERSON, THE POLITICAL THEORY OF POSSESSIVE INDIVIDUALISM: HOBBES TO LOCKE (1962); MICHAEL J. SANDEL, LIBERALISM AND THE LIMITS OF JUSTICE (1982).
270. Leading positivists include Austin, Hart, and Raz. See generally JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINKD (1832); H.L.A. HART, THE CONCEPT OF LAW (1961); JOSEPH RAZ, THE AUTHORITY OF LAW: ESSAY SON LAW AND MORALITY (1979).
271. Leading positivists include Austin, Hart, and Raz. See generally JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINKD (1832); H.L.A. HART, THE CONCEPT OF LAW (1961); JOSEPH RAZ, THE AUTHORITY OF LAW: ESSAY SON LAW AND MORALITY (1979).
272. Leading positivists include Austin, Hart, and Raz. See generally JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINKD (1832); H.L.A. HART, THE CONCEPT OF LAW (1961); JOSEPH RAZ, THE AUTHORITY OF LAW: ESSAY SON LAW AND MORALITY (1979).
273. WILLMOORE KENDALL, JOHN LOCKE AND THE DOCTRINE OF MAJORITY-RULE 134 (1965) [hereinafter KENDALL., LOCKE].
274. Id. Nancy Schwartz agrees with this account. See SCHWARTZ, supra note 114, at 15-16.
275. JOHN DUNN, INTERPRETING POLITICAL RESPONSIBILITY: ESSAYS 1981-1989, at 35 (1990).
276. PHILIP PETTIT, Republican Theory and Political Trust, in TRUST AND GOVERNANCE 295, 302 (Valerie Braithwaite & Margaret Levi eds., 1998).
277. See HERBERT J. STORING, 1 THE COMPLETE ANTI-FEDERALIST 20-21 (1981); see also Cass R. Sunstein, Interest Groups in American Public Law, 38 STAN. L. REV. 29, 31 (1985) (stating that the principle of early republican government was civic virtue); Jennifer Nedelsky, Confining Democratic Politics: Antifederalists, Federalists and the Constitution, 96 HARV. L. REV. 340, 342-43 (1982) (finding that the debate between Federalists and Anti-federalists suggests that the Constitution relied "on private interest rather than public virtue"); Frank I. Michelman, Foreword: Traces of Self-Government, 100 HARV. L. REV. 4 (1986) (stating that "[republicanism forms a highly participatory form of politics . . . for the sake of nourishing civic virtue").
278. See HERBERT J. STORING, 1 THE COMPLETE ANTI-FEDERALIST 20-21 (1981); see also Cass R. Sunstein, Interest Groups in American Public Law, 38 STAN. L. REV. 29, 31 (1985) (stating that the principle of early republican government was civic virtue); Jennifer Nedelsky, Confining Democratic Politics: Antifederalists, Federalists and the Constitution, 96 HARV. L. REV. 340, 342-43 (1982) (finding that the debate between Federalists and Anti-federalists suggests that the Constitution relied "on private interest rather than public virtue"); Frank I. Michelman, Foreword: Traces of Self-Government, 100 HARV. L. REV. 4 (1986) (stating that "[republicanism forms a highly participatory form of politics . . . for the sake of nourishing civic virtue").
279. See HERBERT J. STORING, 1 THE COMPLETE ANTI-FEDERALIST 20-21 (1981); see also Cass R. Sunstein, Interest Groups in American Public Law, 38 STAN. L. REV. 29, 31 (1985) (stating that the principle of early republican government was civic virtue); Jennifer Nedelsky, Confining Democratic Politics: Antifederalists, Federalists and the Constitution, 96 HARV. L. REV. 340, 342-43 (1982) (finding that the debate between Federalists and Anti-federalists suggests that the Constitution relied "on private interest rather than public virtue"); Frank I. Michelman, Foreword: Traces of Self-Government, 100 HARV. L. REV. 4 (1986) (stating that "[republicanism forms a highly participatory form of politics . . . for the sake of nourishing civic virtue").
280. See HERBERT J. STORING, 1 THE COMPLETE ANTI-FEDERALIST 20-21 (1981); see also Cass R. Sunstein, Interest Groups in American Public Law, 38 STAN. L. REV. 29, 31 (1985) (stating that the principle of early republican government was civic virtue); Jennifer Nedelsky, Confining Democratic Politics: Antifederalists, Federalists and the Constitution, 96 HARV. L. REV. 340, 342-43 (1982) (finding that the debate between Federalists and Anti-federalists suggests that the Constitution relied "on private interest rather than public virtue"); Frank I. Michelman, Foreword: Traces of Self-Government, 100 HARV. L. REV. 4 (1986) (stating that "[republicanism forms a highly participatory form of politics . . . for the sake of nourishing civic virtue").
281. RICHARD C. SINOPOLI, THE FOUNDATIONS OF AMERICAN CITIZENSHIP: LIBERALISM, THE CONSTITUTION, AND Civic VIRTUE 7 (1992).
282. WOOD, RADICALISM, supra note 156, at 229.
283. BESSETTE, supra note 154, at 1.
284. See id. at 46, 48.
285. Letter from Thomas Jefferson to Thomas Law (June 13, 1814), in THE LIFE AND SELECTED WRITINGS OF THOMAS JEFFERSON 636, 638 (Adrienne Koch & William Peden eds., 1972) [hereinafter LIFE AND WRITINGS]. For more on this aspect of Jefferson's thought, see DAVID N. MAYER, THE CONSTITUTIONAL THOUGHT OF THOMAS JEFFERSON 73 (1994); ADRIENNE KOCH, THE PHILOSOPHY OF THOMAS JEFFERSON 40-43 (1943). Later in his life, Jefferson apparently moderated his view on this subject, coming to believe that self-love might nevertheless lead people to virtuous positions, and that such positions were none the worse for having been arrived at by this route. See JEAN M. YARBROUGH, AMERICAN VIRTUES: THOMAS JEFFERSON ON THE CHARACTER OF A FREE PEOPLE 104-05 (1998); WOOD, RADICALISM, supra note 156, at 220.
286. Letter from Thomas Jefferson to Thomas Law (June 13, 1814), in THE LIFE AND SELECTED WRITINGS OF THOMAS JEFFERSON 636, 638 (Adrienne Koch & William Peden eds., 1972) [hereinafter LIFE AND WRITINGS]. For more on this aspect of Jefferson's thought, see DAVID N. MAYER, THE CONSTITUTIONAL THOUGHT OF THOMAS JEFFERSON 73 (1994); ADRIENNE KOCH, THE PHILOSOPHY OF THOMAS JEFFERSON 40-43 (1943). Later in his life, Jefferson apparently moderated his view on this subject, coming to believe that self-love might nevertheless lead people to virtuous positions, and that such positions were none the worse for having been arrived at by this route. See JEAN M. YARBROUGH, AMERICAN VIRTUES: THOMAS JEFFERSON ON THE CHARACTER OF A FREE PEOPLE 104-05 (1998); WOOD, RADICALISM, supra note 156, at 220.
287. Letter from Thomas Jefferson to Thomas Law (June 13, 1814), in THE LIFE AND SELECTED WRITINGS OF THOMAS JEFFERSON 636, 638 (Adrienne Koch & William Peden eds., 1972) [hereinafter LIFE AND WRITINGS]. For more on this aspect of Jefferson's thought, see DAVID N. MAYER, THE CONSTITUTIONAL THOUGHT OF THOMAS JEFFERSON 73 (1994); ADRIENNE KOCH, THE PHILOSOPHY OF THOMAS JEFFERSON 40-43 (1943). Later in his life, Jefferson apparently moderated his view on this subject, coming to believe that self-love might nevertheless lead people to virtuous positions, and that such positions were none the worse for having been arrived at by this route. See JEAN M. YARBROUGH, AMERICAN VIRTUES: THOMAS JEFFERSON ON THE CHARACTER OF A FREE PEOPLE 104-05 (1998); WOOD, RADICALISM, supra note 156, at 220.
288. Letter from Thomas Jefferson to Thomas Law (June 13, 1814), in THE LIFE AND SELECTED WRITINGS OF THOMAS JEFFERSON 636, 638 (Adrienne Koch & William Peden eds., 1972) [hereinafter LIFE AND WRITINGS]. For more on this aspect of Jefferson's thought, see DAVID N. MAYER, THE CONSTITUTIONAL THOUGHT OF THOMAS JEFFERSON 73 (1994); ADRIENNE KOCH, THE PHILOSOPHY OF THOMAS JEFFERSON 40-43 (1943). Later in his life, Jefferson apparently moderated his view on this subject, coming to believe that self-love might nevertheless lead people to virtuous positions, and that such positions were none the worse for having been arrived at by this route. See JEAN M. YARBROUGH, AMERICAN VIRTUES: THOMAS JEFFERSON ON THE CHARACTER OF A FREE PEOPLE 104-05 (1998); WOOD, RADICALISM, supra note 156, at 220.
289. Letter from Thomas Jefferson to Thomas Law (June 13, 1814), in THE LIFE AND SELECTED WRITINGS OF THOMAS JEFFERSON 636, 638 (Adrienne Koch & William Peden eds., 1972) [hereinafter LIFE AND WRITINGS]. For more on this aspect of Jefferson's thought, see DAVID N. MAYER, THE CONSTITUTIONAL THOUGHT OF THOMAS JEFFERSON 73 (1994); ADRIENNE KOCH, THE PHILOSOPHY OF THOMAS JEFFERSON 40-43 (1943). Later in his life, Jefferson apparently moderated his view on this subject, coming to believe that self-love might nevertheless lead people to virtuous positions, and that such positions were none the worse for having been arrived at by this route. See JEAN M. YARBROUGH, AMERICAN VIRTUES: THOMAS JEFFERSON ON THE CHARACTER OF A FREE PEOPLE 104-05 (1998); WOOD, RADICALISM, supra note 156, at 220.
290. THE FEDERALIST No. 57, at 384 (James Madison).
291. Mark A. Graber, Conflicting Representations: Lani Guinier and James Madison on Electoral Systems, 13 CONST. COMMENT. 291, 292 (1996). See also William D. Richardson & Lloyd G. Nigro, Constitutional Correctives for Democratic, Vices, in ETHICS AND CHARACTER; THE PURSUIT OF DEMOCRATIC VIRTUES 69 (William D. Richardson et al. eds., 1998); Sanford Levinson, Gerrymandering and the Brooding Omnipresence of Proportional Representation: Why Won't It Go Away?, 33 UCLA L. REV. 257, 274 (1985) ("The framers considered politics, at best, a process not of bargaining but of creating a collective order with a shared social vision and sense of public interest.").
292. Mark A. Graber, Conflicting Representations: Lani Guinier and James Madison on Electoral Systems, 13 CONST. COMMENT. 291, 292 (1996). See also William D. Richardson & Lloyd G. Nigro, Constitutional Correctives for Democratic, Vices, in ETHICS AND CHARACTER; THE PURSUIT OF DEMOCRATIC VIRTUES 69 (William D. Richardson et al. eds., 1998); Sanford Levinson, Gerrymandering and the Brooding Omnipresence of Proportional Representation: Why Won't It Go Away?, 33 UCLA L. REV. 257, 274 (1985) ("The framers considered politics, at best, a process not of bargaining but of creating a collective order with a shared social vision and sense of public interest.").
293. Mark A. Graber, Conflicting Representations: Lani Guinier and James Madison on Electoral Systems, 13 CONST. COMMENT. 291, 292 (1996). See also William D. Richardson & Lloyd G. Nigro, Constitutional Correctives for Democratic, Vices, in ETHICS AND CHARACTER; THE PURSUIT OF DEMOCRATIC VIRTUES 69 (William D. Richardson et al. eds., 1998); Sanford Levinson, Gerrymandering and the Brooding Omnipresence of Proportional Representation: Why Won't It Go Away?, 33 UCLA L. REV. 257, 274 (1985) ("The framers considered politics, at best, a process not of bargaining but of creating a collective order with a shared social vision and sense of public interest.").
294. Mark A. Graber, Conflicting Representations: Lani Guinier and James Madison on Electoral Systems, 13 CONST. COMMENT. 291, 292 (1996). See also William D. Richardson & Lloyd G. Nigro, Constitutional Correctives for Democratic, Vices, in ETHICS AND CHARACTER; THE PURSUIT OF DEMOCRATIC VIRTUES 69 (William D. Richardson et al. eds., 1998); Sanford Levinson, Gerrymandering and the Brooding Omnipresence of Proportional Representation: Why Won't It Go Away?, 33 UCLA L. REV. 257, 274 (1985) ("The framers considered politics, at best, a process not of bargaining but of creating a collective order with a shared social vision and sense of public interest.").
295. WOOD, RADICALISM, supra note 156, at 253.
296. DE GRAZIA, supra note 116, at 114.
297. ROBERT H. WIEBE, SELF-RULE OF AMERICAN DEMOCRACT 83 (1995) [hereinafter WIEBE, SELF-RULE].
298. Id.
299. MARVIN MEYERS, THE JACKSONIAN PERSUASION: POLITICS AND BELIEF 19 (1960).
300. HARRY L. WATSON, LIBERTY AND POWER: THE POLITICS OF JACKSONIAN AMERICA 47-48 (1990). See also HOFSTADTER, PARTY SYSTEM, supra note 176, at 8 (finding that the early Federalists and Republicans did not see themselves as "alternating parties in a two-party system"; when Republicans prevailed and Federalists withered away, this was seen as "evidence of the correctness of their views").
301. HARRY L. WATSON, LIBERTY AND POWER: THE POLITICS OF JACKSONIAN AMERICA 47-48 (1990). See also HOFSTADTER, PARTY SYSTEM, supra note 176, at 8 (finding that the early Federalists and Republicans did not see themselves as "alternating parties in a two-party system"; when Republicans prevailed and Federalists withered away, this was seen as "evidence of the correctness of their views").
302. HOFSTADTER, AGE OF REFORM, supra note 162, at 5.
303. Id. at 7-11.
304. Richard L. Engstrom & Michael D. McDonald, The Effect of At-Large Versus District Elections on Racial Representation in U.S. Municipalities, in ELECTORAL LAWS AND THEIR POLITICAL CONSEQUENCES, supra note 19, at 203.
305. SCHWARTZ, supra note 114, at 124.
306. JUDD, supra note 164, at 94. See also HOFSTADTER, AGE OF REFORM, supra note 162, at 259; WIEBE, SELF-RULE, supra note 193, at 163-64.
307. JUDD, supra note 164, at 94. See also HOFSTADTER, AGE OF REFORM, supra note 162, at 259; WIEBE, SELF-RULE, supra note 193, at 163-64.
308. JUDD, supra note 164, at 94. See also HOFSTADTER, AGE OF REFORM, supra note 162, at 259; WIEBE, SELF-RULE, supra note 193, at 163-64.
309. ROBERT C. WOOD, SUBURBIA: ITS PEOPLE AND THEIR POLITICS 158 (1958).
310. SAMUEL HABER, EFFICIENCY AND UPLIFT: SCIENTIFIC MANAGEMENT IN THE PROGRESSIVE ERA, 1890-1920, at 102 (1964).
311. HOFSTADTER, AGE OF REFORM, supra note 162, at 260.
312. See ROBERT M. GRUNDEN, MINISTERS OF REFORM: THE PROGRESSIVES' ACHIEVEMENT IN AMERICAN CIVILIZATION, 1889-1920, at 15 (1982). As Jefferson put it, "If we think [the people] not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion." Letter from Thomas Jefferson to William Charles Jarvis (Sept. 28, 1820), in 10 THE WRITINGS OF THOMAS JEFFERSON 161 (Paul Leicester Ford ed., 1899).
313. See ROBERT M. GRUNDEN, MINISTERS OF REFORM: THE PROGRESSIVES' ACHIEVEMENT IN AMERICAN CIVILIZATION, 1889-1920, at 15 (1982). As Jefferson put it, "If we think [the people] not enlightened enough to exercise their control with a wholesome discretion, the remedy is not to take it from them, but to inform their discretion." Letter from Thomas Jefferson to William Charles Jarvis (Sept. 28, 1820), in 10 THE WRITINGS OF THOMAS JEFFERSON 161 (Paul Leicester Ford ed., 1899).
314. WILLIAM ALLEN WHITE, THE OLD ORDER CHANGETH: A VIEW OF AMERICAN DEMOCRACY 64 (1910).
315. See WIEBE, SELF-RULE, supra note 193, at 71-73, 82-83.
316. See PITKIN, supra note 33, at 128; SCHWARTZ, supra note 114, at 32-35. Katz calls this "Tory" popular sovereignty. KATZ, DEMOCRACT AND ELECTIONS, supra note 119, at 30-32.
317. See PITKIN, supra note 33, at 128; SCHWARTZ, supra note 114, at 32-35. Katz calls this "Tory" popular sovereignty. KATZ, DEMOCRACT AND ELECTIONS, supra note 119, at 30-32.
318. See PITKIN, supra note 33, at 128; SCHWARTZ, supra note 114, at 32-35. Katz calls this "Tory" popular sovereignty. KATZ, DEMOCRACT AND ELECTIONS, supra note 119, at 30-32.
319. See MANIN, supra note 62, at 2.
320. SARTORI, DEMOCRATIC THEORY, supra note 61, at 108.
321. MANIN, supra note 62, at 203-05; HOFSTADTER, PARTY SYSTEM, supra note 176, at 47-48.
322. MANIN, supra note 62, at 203-05; HOFSTADTER, PARTY SYSTEM, supra note 176, at 47-48.
323. MANIN, supra note 62, at 205-06.
324. Id. at 205-06.
325. KETCHAM, supra note 92, at 78.
326. In his discussion of which kinds of constitutions are best suited to various political communities, Aristotle advances a kind of geometric formula that identifies the portions of the community that predominate in "quantity" and the portions that predominate in "quality," and weighs them against one another to decide where power should lie. In applying this formula to various examples, he proceeds immediately to the difficult cases: the ones in which "quality may belong to one of the parts which compose a state, and quantity to another." ARISTOTLE, supra note 91, bk. IV, ch. xii, at 1296b17. His first example is the realistic one in which the low-born exceed the high-born in quantity, but not in quality. Nevertheless, it is clear from his formula that nothing requires quantity to be weighed against quality, and where the two coincide in a single class that class, whatever it may be, should rule. Id. He also specifically recognizes a type of constitution, "polity," in which "the masses govern the state with a view to the common interest." Id. at bk. III, ch. vii, 1279a32.
327. KATZ, DEMOCRACY AND ELECTIONS, supra note 119, at 18-21, 29-30.
328. Letter from Thomas Jefferson to John Adams (Oct. 28, 1813), in CORRESPONDENCE OF JOHN ADAMS AND THOMAS JEFFERSON, 1812-1828, at 92 (Paul Wilstach ed., 1925).
329. HARRY L. WATSON, LIBERTY AND POWER: THE POLITICS OF JACKSONIAN AMERICA 5-6 (1990). On republican assumptions, however, the possibility of finding members of the natural aristocracy in the lower social orders was mostly theoretical because the kind of virtue that concerned republicanism tended to require a kind of leisure and economic independence that could be found mostly among the relatively well off. WOOD, RADICALISM, supra note 156, at 106- 08.
330. HARRY L. WATSON, LIBERTY AND POWER: THE POLITICS OF JACKSONIAN AMERICA 5-6 (1990). On republican assumptions, however, the possibility of finding members of the natural aristocracy in the lower social orders was mostly theoretical because the kind of virtue that concerned republicanism tended to require a kind of leisure and economic independence that could be found mostly among the relatively well off. WOOD, RADICALISM, supra note 156, at 106-08.
331. WOOD, RADICALISM, supra note 156, chs. 1-5.
332. WALTER BAGEHOT, THE ENGLISH CONSTITUTION AND OTHER POLITICAL ESSAYS 271 (Fountain Press 1993) (1915).
333. Id. at 7; see also Beeman, supra note 175, at 401 (finding that deference in eighteenth-century America was given to "property, education, lineage").
334. BARON DE MONTESQUIEU, THE SPIRIT OF THE LAWS bk. II, ch. 2, at 9-10 (1748) (Franz Neumann ed., Thomas Nugent trans., Hafner Books 1949). See also ADRIENNE KOCH, THE PHILOSOPHY OF THOMAS JEFFERSON 153 (1943) (discussing a letter from Thomas Jefferson to Dupont de Nemours dated Apr. 24, 1816, in which Jefferson claims that the people are competent as judges of fact and choose representatives based on their knowledge of human character).
335. BARON DE MONTESQUIEU, THE SPIRIT OF THE LAWS bk. II, ch. 2, at 9-10 (1748) (Franz Neumann ed., Thomas Nugent trans., Hafner Books 1949). See also ADRIENNE KOCH, THE PHILOSOPHY OF THOMAS JEFFERSON 153 (1943) (discussing a letter from Thomas Jefferson to Dupont de Nemours dated Apr. 24, 1816, in which Jefferson claims that the people are competent as judges of fact and choose representatives based on their knowledge of human character).
336. Beeman, supra note 175, at 407.
337. See MANIN, supra note 62, at 94.
338. On the division of political labor see ERNEST BARKER, REFLECTIONS ON GOVERNMENT 38-47 (1942); JOHN DUNN, INTERPRETING POLITICAL RESPONSIBILITY: ESSAYS 1981-1989, at 24, 40-41 (1990). The republican division of labor, to succeed, must be based on considerable mutual trust among society's members. See generally TRUST AND GOVERNANCE (Valerie Braithwaite & Margaret Levi eds., 1998); KENDALL, LOCKE, supra note 179; Willmoore Kendall, The Two Majorities, 4 MIDWEST J. POL. SCI. 317 (1960).
339. On the division of political labor see ERNEST BARKER, REFLECTIONS ON GOVERNMENT 38-47 (1942); JOHN DUNN, INTERPRETING POLITICAL RESPONSIBILITY: ESSAYS 1981-1989, at 24, 40-41 (1990). The republican division of labor, to succeed, must be based on considerable mutual trust among society's members. See generally TRUST AND GOVERNANCE (Valerie Braithwaite & Margaret Levi eds., 1998); KENDALL, LOCKE, supra note 179; Willmoore Kendall, The Two Majorities, 4 MIDWEST J. POL. SCI. 317 (1960).
340. On the division of political labor see ERNEST BARKER, REFLECTIONS ON GOVERNMENT 38-47 (1942); JOHN DUNN, INTERPRETING POLITICAL RESPONSIBILITY: ESSAYS 1981-1989, at 24, 40-41 (1990). The republican division of labor, to succeed, must be based on considerable mutual trust among society's members. See generally TRUST AND GOVERNANCE (Valerie Braithwaite & Margaret Levi eds., 1998); KENDALL, LOCKE, supra note 179; Willmoore Kendall, The Two Majorities, 4 MIDWEST J. POL. SCI. 317 (1960).
341. On the division of political labor see ERNEST BARKER, REFLECTIONS ON GOVERNMENT 38-47 (1942); JOHN DUNN, INTERPRETING POLITICAL RESPONSIBILITY: ESSAYS 1981-1989, at 24, 40-41 (1990). The republican division of labor, to succeed, must be based on considerable mutual trust among society's members. See generally TRUST AND GOVERNANCE (Valerie Braithwaite & Margaret Levi eds., 1998); KENDALL, LOCKE, supra note 179; Willmoore Kendall, The Two Majorities, 4 MIDWEST J. POL. SCI. 317 (1960).
342. On the division of political labor see ERNEST BARKER, REFLECTIONS ON GOVERNMENT 38-47 (1942); JOHN DUNN, INTERPRETING POLITICAL RESPONSIBILITY: ESSAYS 1981-1989, at 24, 40-41 (1990). The republican division of labor, to succeed, must be based on considerable mutual trust among society's members. See generally TRUST AND GOVERNANCE (Valerie Braithwaite & Margaret Levi eds., 1998); KENDALL, LOCKE, supra note 179; Willmoore Kendall, The Two Majorities, 4 MIDWEST J. POL. SCI. 317 (1960).
343. Samuel H. Beer, New Structures of Democracy in Britain and America, in DEMOCRACY IN THE MID-TWENTIETH CENTURY: PROBLEMS AND PROSPECTS 32 (William N. Chambers & Robert H. Salisbury eds., 1960).
344. THE FEDERALIST No. 57 (James Madison); see also BESSETTE, supra note 154, at 19.
345. THE FEDERALIST No. 57 (James Madison); see also BESSETTE, supra note 154, at 19.
346. THE FEDERALIST No. 68 (Alexander Hamilton).
347. THE FEDERALIST No. 10, at 63 (James Madison).
348. Id. See also Mark A. Graber, Conflicting Representations: Lani Guinier and James Madison on Electoral Systems, 13 CONST. COMMENT. 291, 300-01 (1996).
349. Robert W. Bennett, Democracy as Meaningful Conversation, 14 CONST. COMMENT. 481, 498 (1997).
350. See THOMAS E. CRONIN, DIRECT DEMOCRACY THE POLITICS OF INITIATIVE, REFERENDUM, AND RECALL 7-8 (1989).
351. WATSON, supra note 196, at 6.
352. WOOD, RADICALISM, supra note 156, at 234-35.
353. MORONE, supra note 154, at 5 (defining "the populist ideal" as the notion that "[t]he people are wiser than their governors").
354. ELAINE SPITZ, MAJORITY RULE 3 (1984).
355. ARISTOTLE, supra note 91, bk. III, ch. XI, at 1281a-b.
356. NICCOLO MACHIAVELLI, THE DISCOURSES 1:58, at 255 (Bernard Crick ed., Leslie J. Walker trans., Penguin 1970). Machiavelli refers here to the ancient aphorism "vox populi, vox Dei," the voice of the people is the voice of God. This saying is extremely difficult to track down. The earliest known direct attribution appears to be its use by Alcuin, an eighth century English monk and adviser to Charlemagne. Yet Alcuin wrote to dispute the validity of the maxim, apparently then well-known, in the course of arguing that "only those who enjoyed special grace were allowed to voice the Vox Dei, namely, prelates, kings or pseudoprophets on whom God Himself had conferred such a right." SOPHIA MENACHE, THE VOX DEI: COMMUNICATION IN THE MIDDLE AGES 3 (1990). The Latin may suggest a Roman origin, though the phrase does not appear to be from Cicero, who speaks of the good of the people as the highest good, NEAL WOOD, CICERO'S SOCIAL AND POLITICAL THOUGHT 128-40 (1988), but draws no specific link between the people's wishes and God's. Perhaps the expression owes more to the Christian notion of the sensus fidelium, the idea that "[t]he body of the faithful as a whole, anointed as they are by the Holy One [see 1 John 2:20, 27] cannot err in matters of belief. Thanks to a supernatural sense of the faith which characterizes the People as a whole, it manifests this unerring quality when . . . it shows universal agreement in matters of faith and morals." RICHARD P. MCBRIEN, CATHOLICISM 24 (1994) (quoting Dogmatic Constitution on the Church, ¶ 12). The Dogmatic Constitution on the Church can be found at 1 VATICAN COUNCIL II 363 (rev. ed. 1988). The references to John are: "But you have been anointed by the Holy One, and all of you have knowledge," and "the anointing that you received from him abides in you, and so you do not need anyone to teach you." 1 John 2:20, 27 (New Oxford Annotated).
357. NICCOLO MACHIAVELLI, THE DISCOURSES 1:58, at 255 (Bernard Crick ed., Leslie J. Walker trans., Penguin 1970). Machiavelli refers here to the ancient aphorism "vox populi, vox Dei," the voice of the people is the voice of God. This saying is extremely difficult to track down. The earliest known direct attribution appears to be its use by Alcuin, an eighth century English monk and adviser to Charlemagne. Yet Alcuin wrote to dispute the validity of the maxim, apparently then well-known, in the course of arguing that "only those who enjoyed special grace were allowed to voice the Vox Dei, namely, prelates, kings or pseudoprophets on whom God Himself had conferred such a right." SOPHIA MENACHE, THE VOX DEI: COMMUNICATION IN THE MIDDLE AGES 3 (1990). The Latin may suggest a Roman origin, though the phrase does not appear to be from Cicero, who speaks of the good of the people as the highest good, NEAL WOOD, CICERO'S SOCIAL AND POLITICAL THOUGHT 128-40 (1988), but draws no specific link between the people's wishes and God's. Perhaps the expression owes more to the Christian notion of the sensus fidelium, the idea that "[t]he body of the faithful as a whole, anointed as they are by the Holy One [see 1 John 2:20, 27] cannot err in matters of belief. Thanks to a supernatural sense of the faith which characterizes the People as a whole, it manifests this unerring quality when . . . it shows universal agreement in matters of faith and morals." RICHARD P. MCBRIEN, CATHOLICISM 24 (1994) (quoting Dogmatic Constitution on the Church, ¶ 12). The Dogmatic Constitution on the Church can be found at 1 VATICAN COUNCIL II 363 (rev. ed. 1988). The references to John are: "But you have been anointed by the Holy One, and all of you have knowledge," and "the anointing that you received from him abides in you, and so you do not need anyone to teach you." 1 John 2:20, 27 (New Oxford Annotated).
358. NICCOLO MACHIAVELLI, THE DISCOURSES 1:58, at 255 (Bernard Crick ed., Leslie J. Walker trans., Penguin 1970). Machiavelli refers here to the ancient aphorism "vox populi, vox Dei," the voice of the people is the voice of God. This saying is extremely difficult to track down. The earliest known direct attribution appears to be its use by Alcuin, an eighth century English monk and adviser to Charlemagne. Yet Alcuin wrote to dispute the validity of the maxim, apparently then well-known, in the course of arguing that "only those who enjoyed special grace were allowed to voice the Vox Dei, namely, prelates, kings or pseudoprophets on whom God Himself had conferred such a right." SOPHIA MENACHE, THE VOX DEI: COMMUNICATION IN THE MIDDLE AGES 3 (1990). The Latin may suggest a Roman origin, though the phrase does not appear
359. NICCOLO MACHIAVELLI, THE DISCOURSES 1:58, at 255 (Bernard Crick ed., Leslie J. Walker trans., Penguin 1970). Machiavelli refers here to the ancient aphorism "vox populi, vox Dei," the voice of the people is the voice of God. This saying is extremely difficult to track down. The earliest known direct attribution appears to be its use by Alcuin, an eighth century English monk and adviser to Charlemagne. Yet Alcuin wrote to dispute the validity of the maxim, apparently then well-known, in the course of arguing that "only those who enjoyed special grace were allowed to voice the Vox Dei, namely, prelates, kings or pseudoprophets on whom God Himself had conferred such a right." SOPHIA MENACHE, THE VOX DEI: COMMUNICATION IN THE MIDDLE AGES 3 (1990). The Latin may suggest a Roman origin, though the phrase does not appear to be from Cicero, who speaks of the good of the people as the highest good, NEAL WOOD, CICERO'S SOCIAL AND POLITICAL THOUGHT 128-40 (1988), but draws no specific link between the people's wishes and God's. Perhaps the expression owes more to the Christian notion of the sensus fidelium, the idea that "[t]he body of the faithful as a whole, anointed as they are by the Holy One [see 1 John 2:20, 27] cannot err in matters of belief. Thanks to a supernatural sense of the faith which characterizes the People as a whole, it manifests this unerring quality when . . . it shows universal agreement in matters of faith and morals." RICHARD P. MCBRIEN, CATHOLICISM 24 (1994) (quoting Dogmatic Constitution on the Church, ¶ 12). The Dogmatic Constitution on the Church can be found at 1 VATICAN COUNCIL II 363 (rev. ed. 1988). The references to John are: "But you have been anointed by the Holy One, and all of you have knowledge," and "the anointing that you received from him abides in you, and so you do not need anyone to teach you." 1 John 2:20, 27 (New Oxford Annotated).
360. NICCOLO MACHIAVELLI, THE DISCOURSES 1:58, at 255 (Bernard Crick ed., Leslie J. Walker trans., Penguin 1970). Machiavelli refers here to the ancient aphorism "vox populi, vox Dei," the voice of the people is the voice of God. This saying is extremely difficult to track down. The earliest known direct attribution appears to be its use by Alcuin, an eighth century English monk and adviser to Charlemagne. Yet Alcuin wrote to dispute the validity of the maxim, apparently then well-known, in the course of arguing that "only those who enjoyed special grace were allowed to voice the Vox Dei, namely, prelates, kings or pseudoprophets on whom God Himself had conferred such a right." SOPHIA MENACHE, THE VOX DEI: COMMUNICATION IN THE MIDDLE AGES 3 (1990). The Latin may suggest a Roman origin, though the phrase does not appear to be from Cicero, who speaks of the good of the people as the highest good, NEAL WOOD, CICERO'S SOCIAL AND POLITICAL THOUGHT 128-40 (1988), but draws no specific link between the people's wishes and God's. Perhaps the expression owes more to the Christian notion of the sensus fidelium, the idea that "[t]he body of the faithful as a whole, anointed as they are by the Holy One [see 1 John 2:20, 27] cannot err in matters of belief. Thanks to a supernatural sense of the faith which characterizes the People as a whole, it manifests this unerring quality when . . . it shows universal agreement in matters of faith and morals." RICHARD P. MCBRIEN, CATHOLICISM 24 (1994) (quoting Dogmatic Constitution on the Church, ¶ 12). The Dogmatic Constitution on the Church can be found at 1 VATICAN COUNCIL II 363 (rev. ed. 1988). The references to John are: "But you have been anointed by the Holy One, and all of you have knowledge," and "the anointing that you received from him abides in you, and so you do not need anyone to teach you." 1 John 2:20, 27 (New Oxford Annotated).
361. See KNUD HAAKONSSEN, NATURAL LAW AND MORAL PHILOSOPHY: FROM GROTIUS TO THE SCOTTISH ENLIGHTENMENT 66 (1996).
362. See generally MORTON WHITE, supra note 151; GARRY WILLS, INVENTING AMERICA: JEFFERSON'S DECLARATION OF INDEPENDENCE (1978).
363. See generally MORTON WHITE, supra note 151; GARRY WILLS, INVENTING AMERICA: JEFFERSON'S DECLARATION OF INDEPENDENCE (1978).
364. Letter from Thomas Jefferson to Peter Carr (Aug. 10, 1787), in 12 THE PAPERS OF THOMAS JEFFERSON 14 (Julian P. Boyd ed., 1955). On Jefferson's debt to moral sense philosophy, see KOCH, supra, note 188, ch. 3; YARBROUGH, supra note 188, ch. 2; MORTON WHITE, supra note 151, chs. 2-3.
365. Letter from Thomas Jefferson to Peter Carr (Aug. 10, 1787), in 12 THE PAPERS OF THOMAS JEFFERSON 14 (Julian P. Boyd ed., 1955). On Jefferson's debt to moral sense philosophy, see KOCH, supra, note 188, ch. 3; YARBROUGH, supra note 188, ch. 2; MORTON WHITE, supra note 151, chs. 2-3.
366. Letter from Thomas Jefferson to Peter Carr (Aug. 10, 1787), in 12 THE PAPERS OF THOMAS JEFFERSON 14 (Julian P. Boyd ed., 1955). On Jefferson's debt to moral sense philosophy, see KOCH, supra, note 188, ch. 3; YARBROUGH, supra note 188, ch. 2; MORTON WHITE, supra note 151, chs. 2-3.
367. Letter from Thomas Jefferson to Peter Carr (Aug. 10, 1787), in 12 THE PAPERS OF THOMAS JEFFERSON 14 (Julian P. Boyd ed., 1955). On Jefferson's debt to moral sense philosophy, see KOCH, supra, note 188, ch. 3; YARBROUGH, supra note 188, ch. 2; MORTON WHITE, supra note 151, chs. 2-3.
368. KOCH, supra note 188, at 116-18; WHITE, supra note 151, at 137.
369. See YARBROUGH, supra note 188, at 103.
370. See CRONIN, supra note 232, at 40.
371. See generally WOOD, RADICALISM, supra note 156, chs. 13-19; WIEBE, SELF-RULE, supra note 193, ch. 1.
372. See generally WOOD, RADICALISM, supra note 156, chs. 13-19; WIEBE, SELF-RULE, supra note 193, ch. 1.
373. WOOD, RADICALISM, supra note 156, at 361-62.
374. Id. at 362.
375. Id. at 363. Cf. WALTER LIPPMANN, PUBLIC OPINION (1922) (noting the subjective nature of public opinion). Wood goes on to argue, somewhat extravagantly, that early nineteenth-century Americans developed a self-conscious theory of truth analogous to the utilitarian theory of morals in which truth is merely the aggregation of individual views. See Gordon S. Wood, The Demoralization of Mind in the American Revolution, in THE MORAL FOUNDATIONS OF THE AMERICAN REPUBLIC 102, 126 (Robert H. Horwitz ed., 1977). Aside from the historicist implausibility of the possibility that utilitarian ideas could have been extended to truth before they were articulated and applied to utility, Wood's position seems directly contradicted by the much more orthodox views of the Jacksonians and Progressives set out in the ensuing paragraphs of the text.
376. Id. at 363. Cf. WALTER LIPPMANN, PUBLIC OPINION (1922) (noting the subjective nature of public opinion). Wood goes on to argue, somewhat extravagantly, that early nineteenth- century Americans developed a self-conscious theory of truth analogous to the utilitarian theory of morals in which truth is merely the aggregation of individual views. See Gordon S. Wood, The Demoralization of Mind in the American Revolution, in THE MORAL FOUNDATIONS OF THE AMERICAN REPUBLIC 102, 126 (Robert H. Horwitz ed., 1977). Aside from the historicist implausibility of the possibility that utilitarian ideas could have been extended to truth before they were articulated and applied to utility, Wood's position seems directly contradicted by the much more orthodox views of the Jacksonians and Progressives set out in the ensuing paragraphs of the text.
377. WATSON, supra note 196, at 5.
378. GLYNDON G. VAN DEUSEN, THE JACKSONIAN ERA, 1828-1848, at xi (1959).
379. See MEYERS, supra note 195, at 19-21 (describing Jackson's belief of the political superiority of the common man as compared to the aristocracy).
380. ROBERT V. REMINI, THE JACKSONIAN ERA 26 (1989).
381. EDWARD PESSEN, JACKSONIAN AMERICA: SOCIETY, PERSONALITY, AND POLITICS 166 (1969).
382. See ARTHUR M. SCHLESINGER, JR., THE AGE OF JACKSON 401-02 (1945).
383. See id. at 402-04 (discussing John C. Calhoun's thoughts on powerful economic interests and the government).
384. Bryan claimed that: the people were competent "to sit in judgment on every question which has arisen or which will arise, no matter how long our government will endure," and . . . that the great political questions were in the final analysis moral questions concerning which the intuitions of the people were as good as almost any degree of experience. HOFSTADTER, AGE OF REFORM, supra note 162, at 260.
385. DE WITT, supra note 163, at 143. In his own, somewhat quirky account of progressivism, William Allen White attributed increases in popular leisure time and education to technological innovations - specifically, "steam." WHITE, supra note 206, at 4-5.
386. THE FEDERALIST No. 63, at 428 (James Madison) (emphasis deleted). The Progressives were openly critical of the Framers on this point, often describing them and the Constitution in ways that could not be more different from the kind of pious reverence characteristic of today's originalist discourse. See WHITE, supra note 206, at 3, 34, 38.
387. HOFSTADTER, AGE OF REFORM, supra note 162, at 257.
388. See DE WITT, supra note 163, at 190 ("The theory of democracy upon which the entire progressive movement is based is that every normal citizen who is mentally and morally fit not only has the right, but is also under a duty to participate in the solution of political problems."). Cf. WIEBE, ORDER, supra note 165, at 160-61: Above [government officials] stood the public man, a unique and indispensable leader. Although learned enough to comprehend the details of a modern, specialized government, he was much more than an expert among experts. His vision encompassed the entire nation, his impartiality freed him from all prejudices, and his detached wisdom enabled him to devise an equitable and progressive policy for the whole society . . . . As the nation's leader, the public man would be an educator-extraordinary. He bore the greatest responsibility for raising mass intelligence to the level of true public opinion . . . . [After a period of civic training,] the electorate would come to participate directly in certain aspects of government through the initiative, referendum, and recall. The proper use of such mechanisms, however, depended upon the prior existence of that rational public.
389. See DE WITT, supra note 163, chs. 10-11.
390. See id.
391. WIEBE, ORDER, supra note 165, at 162. See also DE GRAZIA, supra note 116, at 185 (linking a belief in direct democracy with support for PR, and linking both with a delegate conception of representation).
392. WIEBE, ORDER, supra note 165, at 162. See also DE GRAZIA, supra note 116, at 185 (linking a belief in direct democracy with support for PR, and linking both with a delegate conception of representation).
393. Thomas Jefferson, First Inaugural Address (Mar. 4, 1801) [hereinafter Jefferson, First Inaugural], in LIFE AND WRITINGS, supra note 188, at 321, 324.
394. Letter from Thomas Jefferson to Baron F. H. Alexander (June 13, 1817), in 10 THE WRITINGS OF THOMAS JEFFERSON, supra note 205, at 89.
395. This is a position rarely staked out today. But see WILLIAM N. NELSON, ON JUSTIFYING DEMOCRACY (1980) (arguing that democracy, as a representative form of government, is preferable to other forms of government because it produces morally justifiable expressions). See also GIOVANNI SARTORI, THE THEORY OF DEMOCRACT REVISITED 137-41 (1987) (noting that the strength of democracy is rooted in making effective societal decisions).
396. This is a position rarely staked out today. But see WILLIAM N. NELSON, ON JUSTIFYING DEMOCRACY (1980) (arguing that democracy, as a representative form of government, is preferable to other forms of government because it produces morally justifiable expressions). See also GIOVANNI SARTORI, THE THEORY OF DEMOCRACT REVISITED 137-41 (1987) (noting that the strength of democracy is rooted in making effective societal decisions).
397. KENDALL, LOCKE, supra note 179, at 12-13.
398. KATZ, DEMOCRACY AND ELECTIONS, supra note 119, at 29-30; see also John Gilbert Heinberg, Theories of Majority Rule, 26 AM. PoL. SCI. REV. 452, 456 (1932) (concluding that, over time, a preponderance of numbers came to be regarded as morally correct).
399. KATZ, DEMOCRACY AND ELECTIONS, supra note 119, at 29-30; see also John Gilbert Heinberg, Theories of Majority Rule, 26 AM. PoL. SCI. REV. 452, 456 (1932) (concluding that, over time, a preponderance of numbers came to be regarded as morally correct).
400. See SPITZ, supra note 126, at 198.
401. HUGO GROTIUS, DE JURE BELLI AC PACKS LIBRI TRES, bk. II, ch. V, sec. XVII, at 249 (F. Kelsey trans., 1925) (1646).
402. JOHN LOCKE, THE SECOND TREATISE OF GOVERNMENT 96, at 55 (C.B. Macpherson ed., 1980) (1690).
403. Perhaps the modern equivalent of this approach is Kenneth May's well-known demonstration that only majority rule can simultaneously satisfy four seemingly reasonable conditions: uniqueness, anonymity, neutrality, and monotonicity. See Kenneth O. May, A Set of Independent Necessary and Sufficient Conditions for Simple Majority Decision, 20 ECONOMETRICA 680 (1952). Downs similarly claimed that majority rule was a consequence of a preference for equality over other values. Anthony Downs, In Defense of Majority Voting, 69 J. POL. ECON. 192 (1961).
404. Perhaps the modern equivalent of this approach is Kenneth May's well-known demonstration that only majority rule can simultaneously satisfy four seemingly reasonable conditions: uniqueness, anonymity, neutrality, and monotonicity. See Kenneth O. May, A Set of Independent Necessary and Sufficient Conditions for Simple Majority Decision, 20 ECONOMETRICA 680 (1952). Downs similarly claimed that majority rule was a consequence of a preference for equality over other values. Anthony Downs, In Defense of Majority Voting, 69 J. POL. ECON. 192 (1961).
405. See supra notes 179-82 and accompanying text.
406. Jefferson, First Inaugural, supra note 264, at 322. Set aLso Letter from Thomas Jefferson to Thomas Seymour (Feb. 7, 1807), in 5 THE WRITINGS OF THOMAS JEFFERSON 43 (H. Washington ed., 1869) (discussing majority's "rightfulwill") .
407. Jefferson, First Inaugural, supra note 264, at 322. Set aLso Letter from Thomas Jefferson to Thomas Seymour (Feb. 7, 1807), in 5 THE WRITINGS OF THOMAS JEFFERSON 43 (H. Washington ed., 1869) (discussing majority's "rightfulwill") .
408. PETER LASLETT, INTRODUCTION TO JOHN LOCKE, TWO TREATISES OF GOVERNMENT 122-23 (Peter Laslett ed., Mentor 1960).
409. Id. at 123.
410. KENDALL, LOCKE, supra note 179, at 133; see also Willmore Kendall, Prolegoment to Any Future, Work on Majority Rule, 12 J. POL. 694, 699 (1950) (arguing that the majority principle, properly understood, does not legitimate majority will without restriction, but rather that "the will of the majority shall be accepted as the closest possible approximation to the will of the community within limits set by certain other rules whose violation would prevent that free arriving at majorities which is taken for granted by the majority principle itself").
411. KENDALL, LOCKE, supra note 179, at 133; see also Willmore Kendall, Prolegoment to Any Future, Work on Majority Rule, 12 J. POL. 694, 699 (1950) (arguing that the majority principle, properly understood, does not legitimate majority will without restriction, but rather that "the will of the majority shall be accepted as the closest possible approximation to the will of the community within limits set by certain other rules whose violation would prevent that free arriving at majorities which is taken for granted by the majority principle itself").
412. Georg Simmel, THE SOCIOLOGY OF GEORG SIMMEI. 239 (Kurt H. Wolff ed., trans., 1950).
413. Id. at 241.
414. Id. at 242.
415. Id.
416. Id. at 242-43. Simmel goes on to identify with stunning precision the feeling that members of a democratic minority may experience upon defeat under a regime of majority rule. The minority, he writes, must subordinate itself. . . . And it must subordinate itself, not only in the simple sense in which ordinarily convictions and efforts are negated and made ineffectual by opposing forces, but in the more subtle and crafty sense that the loser, because he is part of the group, must positively participate in the action which was decided against his will and conviction. What is more, the uniform character of the eventual decision which contains no trace of his dissent, makes him, too, responsible for it. In this way, outvoting . . . becomes the most poignant expression of the dualism between the autonomous life of the individual and the life of society, a dualism which is often harmonized in experience, but which, in principle, is irreconcilable. Id. at 249. There is a striking similarity between Simmel's account and accounts by some VRA activists of the feelings of black Americans who conceive of themselves as permanent political losers. See GUINIER, TYRANNY, supra note 1, at 76-7; QUIET REVOLUTION, supra note 25, at 16; see also CLIFFORD GEERTZ, THE INTERPRETATION OF CULTURES 317 (1973): For a state to do more than administer privilege and defend itself against its own population, its acts must seem continuous with the selves of those whose state it pretends it is, its citizens - to be, in some stepped-up, amplified sense, their acts. This is not a mere question of consensus. A man does not have to agree with his government's acts to see himself as embodied in them any more than he has to approve of his own acts to acknowledge that he has, alas, himself performed them. It is a question of immediacy, of experiencing what the state "does" as proceeding naturally from a familiar and intelligible "we."
417. Id. at 242-43. Simmel goes on to identify with stunning precision the feeling that members of a democratic minority may experience upon defeat under a regime of majority rule. The minority, he writes, must subordinate itself. . . . And it must subordinate itself, not only in the simple sense in which ordinarily convictions and efforts are negated and made ineffectual by opposing forces, but in the more subtle and crafty sense that the loser, because he is part of the group, must positively participate in the action which was decided against his will and conviction. What is more, the uniform character of the eventual decision which contains no trace of his dissent, makes him, too, responsible for it. In this way, outvoting . . . becomes the most poignant expression of the dualism between the autonomous life of the individual and the life of society, a dualism which is often harmonized in experience, but which, in principle, is irreconcilable. Id. at 249. There is a striking similarity between Simmel's account and accounts by some VRA activists of the feelings of black Americans who conceive of themselves as permanent political losers. See GUINIER, TYRANNY, supra note 1, at 76-7; QUIET REVOLUTION, supra note 25, at 16; see also CLIFFORD GEERTZ, THE INTERPRETATION OF CULTURES 317 (1973): For a state to do more than administer privilege and defend itself against its own population, its acts must seem continuous with the selves of those whose state it pretends it is, its citizens - to be, in some stepped-up, amplified sense, their acts. This is not a mere question of consensus. A man does not have to agree with his government's acts to see himself as embodied in them any more than he has to approve of his own acts to acknowledge that he has, alas, himself performed them. It is a question of immediacy, of experiencing what the state "does" as proceeding naturally from a familiar and intelligible "we."
418. Id. at 242-43. Simmel goes on to identify with stunning precision the feeling that members of a democratic minority may experience upon defeat under a regime of majority rule. The minority, he writes, must subordinate itself. . . . And it must subordinate itself, not only in the simple sense in which ordinarily convictions and efforts are negated and made ineffectual by opposing forces, but in the more subtle and crafty sense that the loser, because he is part of the group, must positively participate in the action which was decided against his will and conviction. What is more, the uniform character of the eventual decision which contains no trace of his dissent, makes him, too, responsible for it. In this way, outvoting . . . becomes the most poignant expression of the dualism between the autonomous life of the individual and the life of society, a dualism which is often harmonized in experience, but which, in principle, is irreconcilable. Id. at 249. There is a striking similarity between Simmel's account and accounts by some VRA activists of the feelings of black Americans who conceive of themselves as permanent political losers. See GUINIER, TYRANNY, supra note 1, at 76-7; QUIET REVOLUTION, supra note 25, at 16; see also CLIFFORD GEERTZ, THE INTERPRETATION OF CULTURES 317 (1973): For a state to do more than administer privilege and defend itself against its own population, its acts must seem continuous with the selves of those whose state it pretends it is, its citizens - to be, in some stepped-up, amplified sense, their acts. This is not a mere question of consensus. A man does not have to agree with his government's acts to see himself as embodied in them any more than he has to approve of his own acts to acknowledge that he has, alas, himself performed them. It is a question of immediacy, of experiencing what the state "does" as proceeding naturally from a familiar and intelligible "we."
419. ROUSSEAU, supra note 146, at 83, 153.
420. See BEITZ, supra note 136, at 67 (describing the differences between the ability of the majority and minority to ascertain the general will).
421. Id. at 153.
422. It is possible, of course, to take this position too far, even on its own terms. For example, the Stalinist theorist Andrei Vyshisky used this reasoning to justify the complete suppression of dissent. See ELIAS BERG, DEMOCRACY AND THE MAJORITY PRINCIPLE: A STUDY IN TWELVE CONTEMPORARY POLITICAL THEORIES 5-10 (1965). Nothing in Rousseau's reasoning, however, suggests that a minority can justifiably be silenced. Rousseau was concerned merely with the minority's compliance, not its existence.
423. "Populistic democracy's bets . . . are on the notion that a political system can be adjudged good or bad according as authoritative decisions within it emanate from a certain 'source'. . . - from, concretely, the majority of a voting population made up of political equals, and not some minority . . . ." Willmoore Kendall & George W. Carey, The "Intensity"Problem and Democratic Theory, 62 AM. POL. SCI. REV. 5, 10 (1968).
424. See 3 ROBERT V. REMINI, ANDREW JACKSON AND THE COURSE OF AMERICAN DEMOCRACY, 1833-1845, at xiv (1984); DIXON, supra note 13, at 42-44.
425. See 3 ROBERT V. REMINI, ANDREW JACKSON AND THE COURSE OF AMERICAN DEMOCRACY, 1833-1845, at xiv (1984); DIXON, supra note 13, at 42-44.
426. WILLIAM H. RIKER, LIBERALISM AGAINST POPULISM: A CONFRONTATION BETWEEN THE THEORY OF DEMOCRACY AND THE THEORY OF SOCIAL CHOICE 11 (1982).
427. DE WITT, supra note 163, at 196.
428. JOHN J. DINAN, KEEPING THE PEOPLE'S LIBERTIES: LEGISLATORS, CITIZENS, AND JUDGES AS GUARDIANS OF RIGHTS 72 (1998) (quoting Proceedings and Debates of the Constitutional Convention of the State of Michigan, 1907-1908, at 566 (Lansing: Wynkoop, Hallenbek, Crawford Co. 1908)).
429. JOHN J. DINAN, KEEPING THE PEOPLE'S LIBERTIES: LEGISLATORS, CITIZENS, AND JUDGES AS GUARDIANS OF RIGHTS 72 (1998) (quoting Proceedings and Debates of the Constitutional Convention of the State of Michigan, 1907-1908, at 566 (Lansing: Wynkoop, Hallenbek, Crawford Co. 1908)).
430. Id. (quoting Jonathan Bourne, Jr., Initiative, Referendum, and Recall, ATLANTIC MONTHLY 109, 122, 123 (Jan. 1912)).
431. See LIJPHART, DEMOCRACIES, supra note 43, at 207 (arguing that it is possible "to derive all of the characteristics of the majoritarian model logically from the principle of concentrating as much political power as possible in the hands of the majority"). Cf. QUADE, supra note 122, at 37 (arguing that the purpose of "democratic statecraft" is "to synthesize society's parts, unify and defend its people, [and] identify and pursue the common good," and that the real test of democratic politics is "the test of excellence in state action").
432. See Voting Rights Act § 2, 42 U.S.C. § 1973b (1994) ("A violation of subsection (a) . . . is established if . . . it is shown that the political processes leading to nomination or election . . . are not equally open to participation by members of a class of citizens protected by subsection (a) . . . in that its members have less opportunity than other members . . . to elect representatives of their choice . . . ."); LAKEMAN, supra note 9, at 165 (stressing the importance of proportional representation regardless of any disadvantages of the multimember constituencies).
433. See Richard L. Engstrom & Michael D. McDonald, The Effect of At-Large Versus District Elections on Racial Representation in U.S. Municipalities, in ELECTORAL LAWS AND THEIR POLITICAL CONSEQUENCES, supra note 19, at 203; Joseph F. Zimmerman, Alternative Local Electoral Systems, 79 NAT'L CIVIC REV. 23, 26 (1990); JUDD, supra note 164, at 95-97.
434. See Richard L. Engstrom & Michael D. McDonald, The Effect of At-Large Versus District Elections on Racial Representation in U.S. Municipalities, in ELECTORAL LAWS AND THEIR POLITICAL CONSEQUENCES, supra note 19, at 203; Joseph F. Zimmerman, Alternative Local Electoral Systems, 79 NAT'L CIVIC REV. 23, 26 (1990); JUDD, supra note 164, at 95-97.
435. See Richard L. Engstrom & Michael D. McDonald, The Effect of At-Large Versus District Elections on Racial Representation in U.S. Municipalities, in ELECTORAL LAWS AND THEIR POLITICAL CONSEQUENCES, supra note 19, at 203; Joseph F. Zimmerman, Alternative Local Electoral Systems, 79 NAT'L CIVIC REV. 23, 26 (1990); JUDD, supra note 164, at 95-97.
436. See ROBERT M. CRUNDEN, MINISTERS OF REFORM: THE PROGRESSIVES' ACHIEVEMENT IN AMERICAN CIVILIZATION, 1889-1920, at x, 15 (1982); DE WITT, supra note 163, at 4, 23, 113;
437. HOFSTADTER, AGE OF REFORM, supra note 162, at 5-6, 257;
438. Progressive Party Platform of 1912, in THE PROGRESSIVE MOVEMENT 1900-1915, at 128 (Richard Hofstadter ed., 1963).
439. JUDD, supra note 164, at 95-96.
440. Id. at 95.
441. Id. In addition, Cain argues in his book, The Reapportionment Puzzle, that the Progressives in essence anticipated what today would be called the "median preference theory of representation": they believed that if districts are large and heterogeneous, representatives will have to respond to the median position of all voters, which will prevent them from becoming too parochial in outlook. BRUCE CAIN, THE REAPPORTIONMENT PUZZLE 65 (1984). See supra note 117 (citing writers who discuss the extent of influence of voters who do not directly support the candidate elected by the majority).
442. Id. In addition, Cain argues in his book, The Reapportionment Puzzle, that the Progressives in essence anticipated what today would be called the "median preference theory of representation": they believed that if districts are large and heterogeneous, representatives will have to respond to the median position of all voters, which will prevent them from becoming too parochial in outlook. BRUCE CAIN, THE REAPPORTIONMENT PUZZLE 65 (1984). See supra note 117 (citing writers who discuss the extent of influence of voters who do not directly support the candidate elected by the majority).
443. Carol A. Cassel, The Nonpartisan Ballot in the United States, in ELECTORAL LAWS AND THEIR POLITICAL CONSEQUENCES, supra note 19, at 226-27; WEAVER, supra note 167, at 1.
444. Cassel, supra note 300, at 226.
445. SAMUEL HABER, EFFICIENCY AND UPLIFT: SCIENTIFIC MANAGEMENT IN THE PROGRESSIVE ERA, 1890-1920, at 102-03 (1964); HOFSTADTER, AGE OF REFORM, supra note 162, at 101, 116; WEAVER, supra note 167, at 20.
446. SAMUEL HABER, EFFICIENCY AND UPLIFT: SCIENTIFIC MANAGEMENT IN THE PROGRESSIVE ERA, 1890-1920, at 102-03 (1964); HOFSTADTER, AGE OF REFORM, supra note 162, at 101, 116; WEAVER, supra note 167, at 20.
447. SAMUEL HABER, EFFICIENCY AND UPLIFT: SCIENTIFIC MANAGEMENT IN THE PROGRESSIVE ERA, 1890-1920, at 102-03 (1964); HOFSTADTER, AGE OF REFORM, supra note 162, at 101, 116; WEAVER, supra note 167, at 20.
448. There are numerous indirect ways to blunt the force of this criticism. It is often argued, for example, that voting is far from the only way, and perhaps not even the most effective way, to influence government behavior. See generally Kathryn Abrams, "Raising Politics Up": Minority Political Participation and Section 2 of the. Voting Rights Act, 63 N.Y.U. L. REV. 449 (1988); CAROL M. SWAIN, BLACK FACES, BLACK INTERESTS: THE REPRESENTATION OF AFRICAN AMERICANS IN CONGRESS (1993). Another argument is that racial minorities exercise influence more effectively by influencing representatives as minorities in numerous districts than by directly electing favored representatives as majorities in a small number of majority-minority districts. See generally DAVID LUBLIN, THE PARADOX OF REPRESENTATION: RACIAL GERRYMANDERING AND MINORITY INTERESTS IN CONGRESS (1997). I put these arguments to one side here in order to confront the basic claim.
449. There are numerous indirect ways to blunt the force of this criticism. It is often argued, for example, that voting is far from the only way, and perhaps not even the most effective way, to influence government behavior. See generally Kathryn Abrams, "Raising Politics Up": Minority Political Participation and Section 2 of the. Voting Rights Act, 63 N.Y.U. L. REV. 449 (1988); CAROL M. SWAIN, BLACK FACES, BLACK INTERESTS: THE REPRESENTATION OF AFRICAN AMERICANS IN CONGRESS (1993). Another argument is that racial minorities exercise influence more effectively by influencing representatives as minorities in numerous districts than by directly electing favored representatives as majorities in a small number of majority-minority districts. See generally DAVID LUBLIN, THE PARADOX OF REPRESENTATION: RACIAL GERRYMANDERING AND MINORITY INTERESTS IN CONGRESS (1997). I put these arguments to one side here in order to confront the basic claim.
450. There are numerous indirect ways to blunt the force of this criticism. It is often argued, for example, that voting is far from the only way, and perhaps not even the most effective way, to influence government behavior. See generally Kathryn Abrams, "Raising Politics Up": Minority Political Participation and Section 2 of the. Voting Rights Act, 63 N.Y.U. L. REV. 449 (1988); CAROL M. SWAIN, BLACK FACES, BLACK INTERESTS: THE REPRESENTATION OF AFRICAN AMERICANS IN CONGRESS (1993). Another argument is that racial minorities exercise influence more effectively by influencing representatives as minorities in numerous districts than by directly electing favored representatives as majorities in a small number of majority-minority districts. See generally DAVID LUBLIN, THE PARADOX OF REPRESENTATION: RACIAL GERRYMANDERING AND MINORITY INTERESTS IN CONGRESS (1997). I put these arguments to one side here in order to confront the basic claim.
451. This kind of reasoning has recently begun to show up in cases alleging minority vote dilution under the Voting Rights Act. For example, in Uno v. City of Holyoke, 72 F.3d 973 (1st Cir. 1995), the court departed from the thrust of most prior rulings by holding that a showing of bloc voting by a white majority, under the third prong of Thornburg v. Gingles, 478 U.S. 30 (1986), was insufficient by itself to support a claim of minority vote dilution. Instead, minority plaintiffs would have to show that "other factors, apart from racial bias" did not cause the majority bloc voting. Uno, 72 F.3d at 980. Thus, a Voting Rights Act claim could be defeated if the defendants introduced, and the plaintiffs failed successfully to rebut, evidence "that whites voted as a bloc for reasons wholly unrelated to racial animus." Defeat, the court said, "does not prove a lack of electoral opportunity but a lack of whatever else it takes to be successful in politics (say, failure to support popular programmatic initiatives, or failure to reflect the majority's ideological viewpoints)."
452. See supra note 86 (citing sources that discuss the Shaw line of cases).
453. In this regard, Samuel Issacharoff reads Justice O'Connor's swing opinions in the Shaw cases as evincing a fear that minority groups' "claims of historical injustice [will serve] as a screen for interest group demands of the present." Samuel Issacharoff, The Constitutional Contours of Race and Politics, 1995 SUP. CT. REV. 45, 47. See also id. at 53 (arguing that the "overriding theme" of the 1995 Term, in which Miller was decided, was that "the federal government is as capable of succumbing to racial interest group politics as any other organ of government").
454. Richard Thompson Ford, Geography and Sovereignty: Jurisdictional Formation and Racial Segregation, 49 STAN. L. REV. 1365, 1426 (1997).
455. Id. at 1436. See also ANNE PHILLIPS, THE POLITICS OF PRESENCE 124 (1995) (urging that the politics of presence "always invokes some notion of proportionality between constituent groups," meaning "it already presumes a heterogeneous society - and this presumption can be precisely what some people will want to contest").
456. Emily Calhoun, Shaw v. Reno: On the Borderline, 65 U. COLO. L. REV. 137, 141 (1993).
457. Guinier and Karlan have taken this position particularly strongly. See GUINIER, TYRANNY, supra note 1, at 3, 9, 34, 37, 60, 70, 103; Karlan, Undoing, supra note 2, at 41; Karlan, The Rights to Vote, supra note 104, at 1740. This is in some ways a strange position for Guinier to take, since she also conceives the VRA as a vehicle by which blacks are to achieve the "transformative social agenda" of the original civil rights movement. GUINIER, TYRANNY, supra note 1, at 44-48, 69. The latter idea, of course, opens Guinier's analysis of American racial politics to the possibility that some or even most white voters reject black candidates not because of their race but because of their substantive positions.
458. Guinier and Karlan have taken this position particularly strongly. See GUINIER, TYRANNY, supra note 1, at 3, 9, 34, 37, 60, 70, 103; Karlan, Undoing, supra note 2, at 41; Karlan, The Rights to Vote, supra note 104, at 1740. This is in some ways a strange position for Guinier to take, since she also conceives the VRA as a vehicle by which blacks are to achieve the "transformative social agenda" of the original civil rights movement. GUINIER, TYRANNY, supra note 1, at 44-48, 69. The latter idea, of course, opens Guinier's analysis of American racial politics to the possibility that some or even most white voters reject black candidates not because of their race but because of their substantive positions.
459. Guinier and Karlan have taken this position particularly strongly. See GUINIER, TYRANNY, supra note 1, at 3, 9, 34, 37, 60, 70, 103; Karlan, Undoing, supra note 2, at 41; Karlan, The Rights to Vote, supra note 104, at 1740. This is in some ways a strange position for Guinier to take, since she also conceives the VRA as a vehicle by which blacks are to achieve the "transformative social agenda" of the original civil rights movement. GUINIER, TYRANNY, supra note 1, at 44-48, 69. The latter idea, of course, opens Guinier's analysis of American racial politics to the possibility that some or even most white voters reject black candidates not because of their race but because of their substantive positions.
460. Guinier and Karlan have taken this position particularly strongly. See GUINIER, TYRANNY, supra note 1, at 3, 9, 34, 37, 60, 70, 103; Karlan, Undoing, supra note 2, at 41; Karlan, The Rights to Vote, supra note 104, at 1740. This is in some ways a strange position for Guinier to take, since she also conceives the VRA as a vehicle by which blacks are to achieve the "transformative social agenda" of the original civil rights movement. GUINIER, TYRANNY, supra note 1, at 44-48, 69. The latter idea, of course, opens Guinier's analysis of American racial politics to the possibility that some or even most white voters reject black candidates not because of their race but because of their substantive positions.
461. MELISSA S. WILLIAMS, VOICE, TRUST AND MEMORY: MARGINALIZED GROUPS AND THE FAILINGS OF LIBERAL REPRESENTATION 99, 102 (1998); Pamela S. Karlan & Daryl J. Levinson, Why Voting is Different, 84 CAL. L. REV. 1201, 1212 (1996).
462. MELISSA S. WILLIAMS, VOICE, TRUST AND MEMORY: MARGINALIZED GROUPS AND THE FAILINGS OF LIBERAL REPRESENTATION 99, 102 (1998); Pamela S. Karlan & Daryl J. Levinson, Why Voting is Different, 84 CAL. L. REV. 1201, 1212 (1996).
463. Karlan & Levinson, supra note 311, at 1211-12.
464. One important exception to this trend is the move toward a multiculturalism-driven notion of ideological differentiation, which I call "view pluralism," and its close cousin deliberative democracy. See PHILLIPS, supra note 308, at 145 (1995), stating: [T]he politics of presence [always refers to] a notion that different groups have different kinds of interests, and that, failing more equitable distribution of political office between different groups, there is little basis for believing that public policy will be equitable between all . . . . The project of equal or proportionate presence moves in close but uneasy association with the project of deliberative democracy . . . [in that both address] who is present in political debate.
465. GUINIER, TYRANNY, supra note 1, at 44-48, 69. See also PHILLIPS, supra note 308, at 100 ("[T]hose pursuing the goal of minority political presence have always perceived it in relation to the policy changes that will follow from this.").
466. GUINIER, TYRANNY, supra note 1, at 44-48, 69. See also PHILLIPS, supra note 308, at 100 ("[T]hose pursuing the goal of minority political presence have always perceived it in relation to the policy changes that will follow from this.").
467. HAIN, supra note 125, ch. 5; see WEAVER, supra note 167, at 143. For a recent example of a study that adopts this point of view, see Carles Boix, Selling the Rules of the Game: The Choice of Electoral Systems in Advanced Democracies, 93 AM. POL. SCI. REV. 609 (1999).
468. HAIN, supra note 125, ch. 5; see WEAVER, supra note 167, at 143. For a recent example of a study that adopts this point of view, see Carles Boix, Selling the Rules of the Game: The Choice of Electoral Systems in Advanced Democracies, 93 AM. POL. SCI. REV. 609 (1999).
469. HAIN, supra note 125, ch. 5; see WEAVER, supra note 167, at 143. For a recent example of a study that adopts this point of view, see Carles Boix, Selling the Rules of the Game: The Choice of Electoral Systems in Advanced Democracies, 93 AM. POL. SCI. REV. 609 (1999).
470. The evident lack of political virtue in post-revolutionary America and the disillusionment it caused revolutionary leaders probably had a significant influence on the Framers' decision to construct a new constitution that did not depend heavily on a virtuous public. MICHAEL, SANDEL, DEMOCRACY'S DISCONTENT 127-29 (1996).
471. See THE FEDERALIST No. 10, at 57 (James Madison) ("By a faction I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.")
472. The most notable proponent of this misreading is surely Dahl, who makes this mistake in the very first "hypothesis" he attributes to Madison: "If unrestrained by external checks, any given individual or group of individuals will tyrannize over others." DAHL, A PREFACE TO DEMOCRATIC THEORY, supra note 99, at 6. It is true, of course, that Madison held that the accumulation of all powers in the same hands is the equivalent of tyranny, THE FEDERALIST No. 47, at 324 (James Madison), a proposition that relies on an implicit assumption of human venality. It does not follow, however, that Madison believed that all political actors will behave self-interestedly all the time. His statement implies only that those with absolute power will yield to the temptations of self-interest on enough occasions to characterize their rule as tyrannical.
473. The most notable proponent of this misreading is surely Dahl, who makes this mistake in the very first "hypothesis" he attributes to Madison: "If unrestrained by external checks, any given individual or group of individuals will tyrannize over others." DAHL, A PREFACE TO DEMOCRATIC THEORY, supra note 99, at 6. It is true, of course, that Madison held that the accumulation of all powers in the same hands is the equivalent of tyranny, THE FEDERALIST No. 47, at 324 (James Madison), a proposition that relies on an implicit assumption of human venality. It does not follow, however, that Madison believed that all political actors will behave self-interestedly all the time. His statement implies only that those with absolute power will yield to the temptations of self-interest on enough occasions to characterize their rule as tyrannical.
474. THE FEDERALIST No. 10, at 60 (James Madison).
475. Among the devices the Framers intended to reduce the potency of majority factions are federalism, separation of powers, and judicial review.
476. THE FEDERALIST No. 10, at 77-79 (James Madison).
477. Kendall argues that the Framers were strongly committed to popular control over government: they were concerned about majority factions, but not majority rule itself. This caused them to distinguish between "a popular majority as such and a popular majority determined to commit an injustice." Willmoore Kendall, The Two Majorities, 4 MIDWEST J. OF POL. SCI. 317, 334 (Nov. 1960). See also supra Part III.B.1.b.
478. THE FEDERALIST No. 10, at 78 (James Madison).
479. THE FEDERALIST No. 57, at 350 (James Madison) ("The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust.")
480. THE FEDERALIST No. 10, at 82 (James Madison).
481. Id.
482. Id.
483. Id. at 63.
484. Id.
485. THE FEDERALIST No. 10, at 63 (James Madison).
486. Id at 64.
487. MELISSA S. WILLIAMS, VOICE, TRUST AND MEMORY: MARGINALIZED GROUPS AND THE FAILINGS OF LIBERAL REPRESENTATION 51 (1998).
488. This paragraph is condensed from the fuller discussion set out in supra Part III.B.
489. Cf. Lucas v. Forty-Fourth Gen. Assembly, 377 U.S. 713, 750 (1964) (Stewart, J., dissenting): The very fact of geographic districting, the constitutional validity of which the Court does not question, carries with it an acceptance of the idea of legislative representation of regional needs and interests. Yet if geographical residence is irrelevant, as the Court suggests . . . I do not understand why the Court's constitutional rule does not require the abolition of districts and the holding of all elections at large. Obviously, as a polity we have decided, at both the constitutional and legislative levels, to deviate from the use of maximally large election districts. For example, the Constitution provides that Senators and Representatives are elected statewide rather than nationwide, and various federal laws, beginning with the Apportionment Act of 1842, ch. 14, 5 Stat. 491 (1842), have further required that elections for Representatives be held from election districts rather than at-large within each state. See LAURENCE F. SCHMECKEBEIER, CONGRESSIONAL APPORTIONMENT 132-35 (1941). It does not necessarily follow, however, that these decisions reflect a retreat from the assumptions of republicanism. They may reflect only a judgment that countervailing considerations of significant weight require some compromise, perhaps only a small one, regarding the ability of the electoral system to install the absolutely best candidates. Clearly, the independent values of federalism and state sovereignty, to say nothing of political realities, played a critical role in the Framers' decision to have representatives elected state by state. Issacharoff and Pildes argue that the adoption of the Apportionment Act in 1842 reflects a national commitment to enhanced proportionality of representation. See Samuel Issacharoff & Richard H. Pildes, Politics as Markets: Partisan Lockups of the Democratic Process, 50 STAN. L. REV. 643, 677 (1998) (claiming that the "principal aim" of the Apportionment Act was "to increase political competition and encourage more diverse representation"). In my view, greater emphasis ought to be placed on the complexities of the sectional politics of slavery that consumed Congress during that period. To be sure, many members of Congress were sincerely interested in the operation of republican government and the political relationship between majorities and minorities. Compare, for example, the remarks of Representative Halsted, chair of the House committee that introduced the legislation,
490. Cf. Lucas v. Forty-Fourth Gen. Assembly, 377 U.S. 713, 750 (1964) (Stewart, J., dissenting): The very fact of geographic districting, the constitutional validity of which the Court does not question, carries with it an acceptance of the idea of legislative representation of regional needs and interests. Yet if geographical residence is irrelevant, as the Court suggests . . . I do not understand why the Court's constitutional rule does not require the abolition of districts and the holding of all elections at large. Obviously, as a polity we have decided, at both the constitutional and legislative levels, to deviate from the use of maximally large election districts. For example, the Constitution provides that Senators and Representatives are elected statewide rather than nationwide, and various federal laws, beginning with the Apportionment Act of 1842, ch. 14, 5 Stat. 491 (1842), have further required that elections for Representatives be held from election districts rather than at-large within each state. See LAURENCE F. SCHMECKEBEIER, CONGRESSIONAL APPORTIONMENT 132-35 (1941). It does not necessarily follow, however, that these decisions reflect a retreat from the assumptions of republicanism. They may reflect only a judgment that countervailing considerations of significant weight require some compromise, perhaps only a small one, regarding the ability of the electoral system to install the absolutely best candidates. Clearly, the independent values of federalism and state sovereignty, to say nothing of political realities, played a critical role in the Framers' decision to have representatives elected state by state. Issacharoff and Pildes argue that the adoption of the Apportionment Act in 1842 reflects a national commitment to enhanced proportionality of representation. See Samuel Issacharoff & Richard H. Pildes, Politics as Markets: Partisan Lockups of the Democratic Process, 50 STAN. L. REV. 643, 677 (1998) (claiming that the "principal aim" of the Apportionment Act was "to increase political competition and encourage more diverse representation"). In my view, greater emphasis ought to be placed on the complexities of the sectional politics of slavery that consumed Congress during that period. To be sure, many members of Congress were sincerely interested in the operation of republican government and the political relationship between majorities and minorities. Compare, for example, the remarks of Representative Halsted, chair of the House committee that introduced the legislation,
491. Cf. Lucas v. Forty-Fourth Gen. Assembly, 377 U.S. 713, 750 (1964) (Stewart, J., dissenting): The very fact of geographic districting, the constitutional validity of which the Court does not question, carries with it an acceptance of the idea of legislative representation of regional needs and interests. Yet if geographical residence is irrelevant, as the Court suggests . . . I do not understand why the Court's constitutional rule does not require the abolition of districts and the holding of all elections at large. Obviously, as a polity we have decided, at both the constitutional and legislative levels, to deviate from the use of maximally large election districts. For example, the Constitution provides that Senators and Representatives are elected statewide rather than nationwide, and various federal laws, beginning with the Apportionment Act of 1842, ch. 14, 5 Stat. 491 (1842), have further required that elections for Representatives be held from election districts rather than at-large within each state. See LAURENCE F. SCHMECKEBEIER, CONGRESSIONAL APPORTIONMENT 132-35 (1941). It does not necessarily follow, however, that these decisions reflect a retreat from the assumptions of republicanism. They may reflect only a judgment that countervailing considerations of significant weight require some compromise, perhaps only a small one, regarding the ability of the electoral system to install the absolutely best candidates. Clearly, the independent values of federalism and state sovereignty, to say nothing of political realities, played a critical role in the Framers' decision to have representatives elected state by state. Issacharoff and Pildes argue that the adoption of the Apportionment Act in 1842 reflects a national commitment to enhanced proportionality of representation. See Samuel Issacharoff & Richard H. Pildes, Politics as Markets: Partisan Lockups of the Democratic Process, 50 STAN. L. REV. 643, 677 (1998) (claiming that the "principal aim" of the Apportionment Act was "to increase political competition and encourage more diverse representation"). In my view, greater emphasis ought to be placed on the complexities of the sectional politics of slavery that consumed Congress during that period. To be sure, many members of Congress were sincerely interested in the operation of republican government and the political relationship between majorities and minorities. Compare, for example, the remarks of Representative Halsted, chair of the House committee that introduced the legislation,
492. 11 CONG. GLOBE 465 (May 10, 1842) (arguing that districting was needed "to secure equality in political rights" and "a full expression of popular opinion"),
493. and Senator Miller, id. at 568 (June 2, 1842) (decrying "the monopoly of representation in a State" and claiming that the districted system "was the only possible way of feeling the pulse of popular will"), with those of Senator Bagby (arguing in favor of at-large congressional elections on the ground that "the people of each State are, collectively, interested in the relation which that State bears to the General Government; and it was only by the general-ticket system they could obtain their proper representation"). Id. at 571 (June 3, 1842). Yet the debates also reveal, never very far from the surface, a concern for the politics of slavery. In brief, Southern states wanted apportionment to preserve their legislative power in Congress. In the South, political opinion was united in favor of slavery, and pro-slavery forces could count on the support of every member of each state's congressional delegation. In the North, in contrast, political opinion on slavery was divided. If congressional elections in northern states were held at-large, there was a chance that anti-slavery forces could gain a voting majority, enabling them to elect state delegations that were solidly anti-slavery. Southern politicians believed that if northern elections were, on the contrary, held by district, it was likely that a good number of northern legislators would not support measures to end slavery. Thus, apportionment would preserve a pro-slavery majority in Congress. Occasionally, such sentiments were expressed quite directly, as by Representative William Cost Johnson: He was very free to confess that, representing as he did a peculiar institution of the country, he should prefer to see the single district system. He believed that the southern interests would be better advanced by that system, because, on all questions touching it, the Representatives of the South would, as a matter of course, stand together in protection of their own rights guarantied them by the Constitution, and there would always be differences of opinion in the North and West, and those to unite with the South in the vindication of its rights. Id. at 463 (May 2, 1842). Similarly, Rep. Garrett Davis argued that "the peculiar principles of the South, and every interest it cherished, were to be protected by the district system." Id. at 448 (Apr. 27, 1842). Others alluded to "sectional interests," see id. at 469-70 (May 3, 1842) (remarks of Rep. Ferris), or disparaged the legislation as "a movement of . . . one section against another." Id. at 568 (June 2, 1842) (remarks of Sen. Woodbury).
494. See Berg's account of the Stalinist theorist Andrei Y. Vyshinsky in BERG, supra note 286, ch. 1.
495. Issacharoff & Pildes, supra note 334.
496. This paragraph is condensed from the fuller discussion set out in Part III.B.2.b supra.
497. This paragraph is condensed from the fuller discussion set out in supra Part II.A.
498. It is possible to conceive of a different kind of pluralism - call it raw pluralism -consisting of a pure power struggle with no utilitarian payoff, a true Hobbesian system in which all war against all. Because such a system depends entirely on strength and domination, and thus holds no ethical interest, I shall not pursue it here.
499. PITKIN, supra note 33, at 200-05.
500. This was certainly Mill's view. See Mill, supra note 17, at 244-45, 303-07; see also Gardner, supra note 84, at 948-51. Mill's position, however, rests on some assumptions that may be questionable. Id. at 951-56.
501. See supra note 110 (discussing Bentham's views on interest pluralism).
502. Or at least this is so according to some of the major philosophical models of political fairness. See CHARLES R. BEITZ, POLITICAL EQUALITY: AN ESSAY IN DEMOCRATIC: THEORY (1989).
503. If the number of legislators is to be less than the number of voters, obviously not every interest group will be able to muster the votes to elect a candidate. Thus, every PR system contemplates some threshold vote total necessary to elect a candidate. The exclusion of small -read "fringe" or "extremist" - groups inevitably introduces some degree of error into the process by which politics maximizes social utility. However, this error can be adequately justified on utilitarian premises because the exclusion of smaller groups reduces transaction costs by allowing society to keep its
504. See DUMMETT, supra note 41, at 127-35.
505. Jeremy Waldron, Rights and Majorities: Rousseau Revisited, in NOMOS, supra note 39, at 44, 49. Arrow makes much the same point in KENNETH J. ARROW, SOCIAL CHOICE AND INDIVIDUAL VALUES 85-86 (2d ed. 1963).
506. Jeremy Waldron, Rights and Majorities: Rousseau Revisited, in NOMOS, supra note 39, at 44, 49. Arrow makes much the same point in KENNETH J. ARROW, SOCIAL CHOICE AND INDIVIDUAL VALUES 85-86 (2d ed. 1963).
507. Some political scientists who study electoral systems have acknowledged a similar point. No electoral system is impartial, they argue, in the sense that it is merely a system that takes and mechanically aggregates the electorate's preferences. What constitutes a "preference" that ought to be aggregated, for example, is highly contestable and any choice in this respect is typically referable to some underlying conception of what democratic politics ought to be about. See WILLIAM H. RIKER, LIBERALISM AGAINST POPULISM: A CONFRONTATION BETWEEN THE THEORY OF DEMOCRACY AND THE THEORY OF SOCIAL CHOICE 235 (1982) (observing that there are many ways to amalgamate preferences; that they do not produce the same outcomes on the same set of preferences; and that there is no one clearly superior method; each makes a claim to superiority based on different features of fairness or efficiency and embodies "different ethical principles"; as a result, "there is no fundamental reason of prudence or morality for preferring the amalgamation produced by one method to the amalgamation produced by another"); KATZ, DEMOCRACY AND ELECTIONS, supra note 119, at 279 (rejecting the possibility of deciding which electoral system is most democratic and arguing instead that there is no single answer because it depends on the "values to be encouraged" and "the political and social environment in which one is working"). As Riker later observed in another context, "[m]uch of the motivation for the invention of new electoral systems is a belief that a new method of counting will resolve the inherent contradictions in opinions and values in society." William H. Riker, Electoral Systems and Constitutional Restraints, in CHOOSING AN ELECTORAL SYSTEM, supra note 40, at 107.
508. Some political scientists who study electoral systems have acknowledged a similar point. No electoral system is impartial, they argue, in the sense that it is merely a system that takes and mechanically aggregates the electorate's preferences. What constitutes a "preference" that ought to be aggregated, for example, is highly contestable and any choice in this respect is typically referable to some underlying conception of what democratic politics ought to be about. See WILLIAM H. RIKER, LIBERALISM AGAINST POPULISM: A CONFRONTATION BETWEEN THE THEORY OF DEMOCRACY AND THE THEORY OF SOCIAL CHOICE 235 (1982) (observing that there are many ways to amalgamate preferences; that they do not produce the same outcomes on the same set of preferences; and that there is no one clearly superior method; each makes a claim to superiority based on different features of fairness or efficiency and embodies "different ethical principles"; as a result, "there is no fundamental reason of prudence or morality for preferring the amalgamation produced by one method to the amalgamation produced by another"); KATZ, DEMOCRACY AND ELECTIONS, supra note 119, at 279 (rejecting the possibility of deciding which electoral system is most democratic and arguing instead that there is no single answer because it depends on the "values to be encouraged" and "the political and social environment in which one is working"). As Riker later observed in another context, "[m]uch of the motivation for the invention of new electoral systems is a belief that a new method of counting will resolve the inherent contradictions in opinions and values in society." William H. Riker, Electoral Systems and Constitutional Restraints, in CHOOSING AN ELECTORAL SYSTEM, supra note 40, at 107.
509. Some political scientists who study electoral systems have acknowledged a similar point. No electoral system is impartial, they argue, in the sense that it is merely a system that takes and mechanically aggregates the electorate's preferences. What constitutes a "preference" that ought to be aggregated, for example, is highly contestable and any choice in this respect is typically referable to some underlying conception of what democratic politics ought to be about. See WILLIAM H. RIKER, LIBERALISM AGAINST POPULISM: A CONFRONTATION BETWEEN THE THEORY OF DEMOCRACY AND THE THEORY OF SOCIAL CHOICE 235 (1982) (observing that there are many ways to amalgamate preferences; that they do not produce the same outcomes on the same set of preferences; and that there is no one clearly superior method; each makes a claim to superiority based on different features of fairness or efficiency and embodies "different ethical principles"; as a result, "there is no fundamental reason of prudence or morality for preferring the amalgamation produced by one method to the amalgamation produced by another"); KATZ, DEMOCRACY AND ELECTIONS, supra note 119, at 279 (rejecting the possibility of deciding which electoral system is most democratic and arguing instead that there is no single answer because it depends on the "values to be encouraged" and "the political and social environment in which one is working"). As Riker later observed in another context, "[m]uch of the motivation for the invention of new electoral systems is a belief that a new method of counting will resolve the inherent contradictions in opinions and values in society." William H. Riker, Electoral Systems and Constitutional Restraints, in CHOOSING AN ELECTORAL SYSTEM, supra note 40, at 107.
510. Perhaps the party system might be capable of doing so, at least if it behaved consistent with the traditional responsible-party model of American political science. See RANNEY, supra note 130; American Political Science Association, Toward a More Responsible Two-party System, 44 AM. POL SCI. REV. SUPP. (Sept. 1950). But there are good reasons to doubt whether political parties are capable of behaving in the way the responsible party model presupposes. A substantial body of public choice literature claims that parties, like other political actors, behave self-interestedly. See supra note 117 (noting the political science literature that discusses public choice). It has been suggested that party behavior is best described by other models such as the "catch-all" or "cartel" models in which parties, far from responding to and implementing popular wishes, aim primarily only to survive and will do whatever is necessary to assure their own survival. See PETER MAIR, PARTY SYSTEM CHANGE: APPROACHES AND INTERPRETATIONS ch. 5 (1997). Recent developments in systems theory suggest a basis for understanding political parties as "autopoietic" (self-sustaining) institutions. Some of these developments are described in JURGEN HABERMAS, BETWEEN FACTS AND NORMS 46-49 (1996). See also James A. Gardner, Can Party Politics Be Virtuous?, 100 COLUM. L. REV. 667 (2000) (arguing on structural grounds that a virtuous party politics is possible, but unlikely).
511. Perhaps the party system might be capable of doing so, at least if it behaved consistent with the traditional responsible-party model of American political science. See RANNEY, supra note 130; American Political Science Association, Toward a More Responsible Two-party System, 44 AM. POL SCI. REV. SUPP. (Sept. 1950). But there are good reasons to doubt whether political parties are capable of behaving in the way the responsible party model presupposes. A substantial body of public choice literature claims that parties, like other political actors, behave self-interestedly. See supra note 117 (noting the political science literature that discusses public choice). It has been suggested that party behavior is best described by other models such as the "catch-all" or "cartel" models in which parties, far from responding to and implementing popular wishes, aim primarily only to survive and will do whatever is necessary to assure their own survival. See PETER MAIR, PARTY SYSTEM CHANGE: APPROACHES AND INTERPRETATIONS ch. 5 (1997). Recent developments in systems theory suggest a basis for understanding political parties as "autopoietic" (self-sustaining) institutions. Some of these developments are described in JURGEN HABERMAS, BETWEEN FACTS AND NORMS 46-49 (1996). See also James A. Gardner, Can Party Politics Be Virtuous?, 100 COLUM. L. REV. 667 (2000) (arguing on structural grounds that a virtuous party politics is possible, but unlikely).
512. Perhaps the party system might be capable of doing so, at least if it behaved consistent with the traditional responsible-party model of American political science. See RANNEY, supra note 130; American Political Science Association, Toward a More Responsible Two-party System, 44 AM. POL SCI. REV. SUPP. (Sept. 1950). But there are good reasons to doubt whether political parties are capable of behaving in the way the responsible party model presupposes. A substantial body of public choice literature claims that parties, like other political actors, behave self-interestedly. See supra note 117 (noting the political science literature that discusses public choice). It has been suggested that party behavior is best described by other models such as the "catch-all" or "cartel" models in which parties, far from responding to and implementing popular wishes, aim primarily only to survive and will do whatever is necessary to assure their own survival. See PETER MAIR, PARTY SYSTEM CHANGE: APPROACHES AND INTERPRETATIONS ch. 5 (1997). Recent developments in systems theory suggest a basis for understanding political parties as "autopoietic" (self-sustaining) institutions. Some of these developments are described in JURGEN HABERMAS, BETWEEN FACTS AND NORMS 46-49 (1996). See also James A. Gardner, Can Party Politics Be Virtuous?, 100 COLUM. L. REV. 667 (2000) (arguing on structural grounds that a virtuous party politics is possible, but unlikely).
513. Perhaps the party system might be capable of doing so, at least if it behaved consistent with the traditional responsible-party model of American political science. See RANNEY, supra note 130; American Political Science Association, Toward a More Responsible Two-party System, 44 AM. POL SCI. REV. SUPP. (Sept. 1950). But there are good reasons to doubt whether political parties are capable of behaving in the way the responsible party model presupposes. A substantial body of public choice literature claims that parties, like other political actors, behave self-interestedly. See supra note 117 (noting the political science literature that discusses public choice). It has been suggested that party behavior is best described by other models such as the "catch-all" or "cartel" models in which parties, far from responding to and implementing popular wishes, aim primarily only to survive and will do whatever is necessary to assure their own survival. See PETER MAIR, PARTY SYSTEM CHANGE: APPROACHES AND INTERPRETATIONS ch. 5 (1997). Recent developments in systems theory suggest a basis for understanding political parties as "autopoietic" (self-sustaining) institutions. Some of these developments are described in JURGEN HABERMAS, BETWEEN FACTS AND NORMS 46-49 (1996). See also James A. Gardner, Can Party Politics Be Virtuous?, 100 COLUM. L. REV. 667 (2000) (arguing on structural grounds that a virtuous party politics is possible, but unlikely).
514. Perhaps the party system might be capable of doing so, at least if it behaved consistent with the traditional responsible-party model of American political science. See RANNEY, supra note 130; American Political Science Association, Toward a More Responsible Two-party System, 44 AM. POL SCI. REV. SUPP. (Sept. 1950). But there are good reasons to doubt whether political parties are capable of behaving in the way the responsible party model presupposes. A substantial body of public choice literature claims that parties, like other political actors, behave self-interestedly. See supra note 117 (noting the political science literature that discusses public choice). It has been suggested that party behavior is best described by other models such as the "catch-all" or "cartel" models in which parties, far from responding to and implementing popular wishes, aim primarily only to survive and will do whatever is necessary to assure their own survival. See PETER MAIR, PARTY SYSTEM CHANGE: APPROACHES AND INTERPRETATIONS ch. 5 (1997). Recent developments in systems theory suggest a basis for understanding political parties as "autopoietic" (self-sustaining) institutions. Some of these developments are described in JURGEN HABERMAS, BETWEEN FACTS AND NORMS 46-49 (1996). See also James A. Gardner, Can Party Politics Be Virtuous?, 100 COLUM. L. REV. 667 (2000) (arguing on structural grounds that a virtuous party politics is possible, but unlikely).
515. Learned Hand, The Contribution of an Independent Judiciary to Civilization (1942), in THE SPIRIT OF LIBERTY 155, 164 (3d ed., 1960). Justice Jackson similarly observed that the formal separation of constitutional powers cannot "keep power in the hands of Congress if it is not wise and timely in meeting its problems[;] . . . only Congress itself can prevent power from slipping through its fingers." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 654 (1952) (Jackson, J., concurring). An even more extreme position was taken by the political scientist E.E. Schattschneider, who argued that political parties can and do routinely subvert even the best-considered legal norms. E.E. SCHATTSCHNEIDER, PARTY GOVERNMENT 12 (1942).
516. Learned Hand, The Contribution of an Independent Judiciary to Civilization (1942), in THE SPIRIT OF LIBERTY 155, 164 (3d ed., 1960). Justice Jackson similarly observed that the formal separation of constitutional powers cannot "keep power in the hands of Congress if it is not wise and timely in meeting its problems[;] . . . only Congress itself can prevent power from slipping through its fingers." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 654 (1952) (Jackson, J., concurring). An even more extreme position was taken by the political scientist E.E. Schattschneider, who argued that political parties can and do routinely subvert even the best-considered legal norms. E.E. SCHATTSCHNEIDER, PARTY GOVERNMENT 12 (1942).
517. Aristotle argued, for example, that one of the most important jobs of the legislator is "to ensure that his citizens become good men. He must therefore know what institutions will produce this result." ARISTOTLE, supra note 91, bk. VII, ch. xiv, at 1333b32.
518. JOHN DEWEY, DEMOCRACY AND EDUCATION 26 (1916).
519. Nancy Schwartz makes the complementary argument that winner-take-all, single-member district systems "best promote [] citizenship." SCHWARTZ, supra note 114, at 125. Schwartz argues that political representation "is a process in which a people makes a choice about how it will be recognized politically, and hence becomes self-conscious about who they are collectively." To be constitutive, she argues, representation "must be rooted in local constituencies" of place rather than interest. Single-member districts utilizing winner-take-all elections, Schwartz maintains, "best encourage the development of political individuality, the civic status of being a citizen who retains his or her own particular loyalties yet acknowledges membership in the whole. By having set boundaries to a district one defines a relevant constituency not just by one aspect of its life at a moment in time but rather by the totality of its political life over the years." Id. at 129.
520. See WOOD, RADICALISM, supra note 156, at 255-67 (discussing the erosion of disinterested political participation).
521. See WIEBE, SELF-RULE, supra note 193, at 79. Harry Watson places this transition somewhat later in the nineteenth century. WATSON, supra note 196, at 48.
522. When British authorities invoked virtual representation to justify the disenfranchisement of the American colonists, it "met at once with flat and universal rejection, ultimately with derision." BAILYN, supra note 174, at 167. See id. at 167-68, 173-74; see also JOHN PHILLIP REID, THE CONCEPT OF REPRESENTATION IN THE AGE OF THE AMERICAN REVOLUTION 59- 60 (1989) (explaining American Whig arguments against virtual representation); PITKIN, supra note 33, at 173-75 (supporting a distinction between the interests of the aristocracy and the people).
523. When British authorities invoked virtual representation to justify the disenfranchisement of the American colonists, it "met at once with flat and universal rejection, ultimately with derision." BAILYN, supra note 174, at 167. See id. at 167-68, 173-74; see also JOHN PHILLIP REID, THE CONCEPT OF REPRESENTATION IN THE AGE OF THE AMERICAN REVOLUTION 59-60 (1989) (explaining American Whig arguments against virtual representation); PITKIN, supra note 33, at 173-75 (supporting a distinction between the interests of the aristocracy and the people).
524. When British authorities invoked virtual representation to justify the disenfranchisement of the American colonists, it "met at once with flat and universal rejection, ultimately with derision." BAILYN, supra note 174, at 167. See id. at 167-68, 173-74; see also JOHN PHILLIP REID, THE CONCEPT OF REPRESENTATION IN THE AGE OF THE AMERICAN REVOLUTION 59- 60 (1989) (explaining American Whig arguments against virtual representation); PITKIN, supra note 33, at 173-75 (supporting a distinction between the interests of the aristocracy and the people).
525. WOOD, RADICALISM, supra note 156, at 258-59.
526. For example, most states eliminated property requirements for voting, requirements originally justified by the belief that members of the economically dependent classes lacked the independence and will to participate properly in political affairs. See Robert J. Steinfeld, Property and Suffrage in the Early American Republic, 41 STAN. L. REV. 335 (1989).
527. See PETER BACHRACH, THE THEORY OF DEMOCRATIC ELITISM: A CRITIQUE 26-35 (1967); WIEBE, SELF-RULE, supra note 193, at chs. 7-9.
528. See PETER BACHRACH, THE THEORY OF DEMOCRATIC ELITISM: A CRITIQUE 26-35 (1967); WIEBE, SELF-RULE, supra note 193, at chs. 7-9.
529. See PITKIN, supra note 33, at 198.
530. JEREMY BENTHAM, ANARCHICAL FALLACIES 489, 501 (1824).
531. See, for example, among many possible works, FRIEDRICH NIETZSCHE, THE GENEALOGY OF MORALS (1887).
532. See MAN LING LEE, supra note 169, at 5 (giving an overview of postmodern thought regarding truth).
533. 1 KARL R. POPPER, THE OPEN SOCIETY AND ITS ENEMIES 59 (5th ed. 1966).
534. Id. at 125.
535. Id. at 157.