Kadish Center for Morality, Law and Public Affairs

In the last generation, the American Supreme Court has constitutionalized an increasing number of issues concerning the structure of elections and the design of democratic governance institutions. Similar developments are emerging in the courts of other countries. This Foreword critiques the current premises and methodology that underlie this emerging new domain of constitutional law. The Foreword offers an alternative, functional foundation for judicial review of democratic politics in which the central task should be ensuring that political processes are appropriately competitive and in which conventional understandings of individual rights, associational rights, and political equality should play a diminished role. The Foreword then applies these ideas to several central, recent constitutional issues concerning the structure of democracy: the design of election districts, the issue of groups and political representation, the legal regulation of political parties, and the financing of elections.