Preliminary Thoughts on Participation and Citizen Equality

In 1964, as it entered the modern era of judicial review of the political process, the U.S. Supreme Court proclaimed that its constitutional objective was to provide each citizen a fair and equal opportunity for political participation. As framed by the Court, “representative government is in essence self-government through the medium of elected representatives of the people, and each and every citizen has an inalienable right to full and effective participation in the political processes of his State's legislative bodies.” This proclamation, coming in Reynolds v. Sims, accompanied the Court’s embrace of the equipopulation rule of apportionment as demanding one-person, one-vote. Equality was the touchstone of the Court’s early foray into politics. Baker v. Carr, the case which opened the modern era, rejected rooting its constitutional principles in seemingly more structural provisions of the Constitution, such as the republican guarantee clause or the privileges and immunities of citizenship. Instead, Baker rooted the new constitutional concern for the functioning of democracy in the equal protection clause. Baker even proclaimed the commands of equal protection in this domain to be well established and familiar, though in truth they were neither.

Much of the struggling law of democracy around the world reproduces this theme. After World War II, individual legal claims enshrined as human rights found ready entry into the national and supranational court structures. In some cases, as with the German Constitutional Court, the individual rights decree is the formal source of court jurisdiction. But for all courts confronted with claims of dysfunction in the democratic process, issues of discrimination or other lack of individual equality remain the entry path of least resistance. While equality is a fundamental value in democratic societies, it does little on its own to define what the Supreme Court identified as a right of full and effective participation.

The claim of equality is insufficient to guarantee effective participation in democratic politics. While equality of participation is one fundamental value in defining democracy, it is not alone. Most of the law of democracy, both in the U.S. and abroad, demands an equal measure of guaranteed liberty from state interference in the terms and conditions of effective political participation. The commands of liberty and equality are not coterminous, as reflected in the persistent conflict in the field of campaign finance.

Beyond the confines of legal doctrine on permissible regulation of contributions and expenditures in political campaigns lies a deeper conflict between liberty and equality. The founding conception of American democracy envisioned a state checked by separation of powers along federal/state and institutional divisions and a citizenry periodically consulted through representatives in office. The Constitution announced no vision of democratic politics and the writings of the founding generation spoke only of republicanism as a process of governance by representatives, a buffer against the momentary passions of the masses. Missing in the American constitution, something that reflects its age and sets it apart from more modern constitutions, is a commitment to intermediary organizations—most notably, political parties.

Much of the liberty strain of constitutional law dealing with democratic governance has addressed this original gap in the American conception of self-governance. The formal commitments to equality, expressed either by the early expansion of the franchise beyond the English inheritance or later in the one-person, one-vote command, do not address how the citizens will realize any form of political participation. Much as the American constitution was famously a constitution against faction, reality proved otherwise. The resulting law on liberty of association and organizational participation in politics provides a necessary corrective that has allowed for meaningful political engagement through associations ranging from the major political parties to the NAACP to more marginal third parties.

Concerns about inequality in citizen participation in democracy abound. Turnout remains stuck in the 60 percent range for the most high-profile elections: campaign finance gravitates to a small donor class; institutions, like the winner-take-all feature of the Electoral College, center elections around a handful of states with predictable sectional issues; the list goes on. Just as central, however, is the failure of intermediary political institutions. America has long been a nation of joiners, noted across the generations from Tocqueville and Putnam. But the institutions of engagement are failing. Political parties have been hollowed out and now exist mostly as fundraising operations centered around a few candidates. Trade unions, civic associations and other civil society institutions that transmitted member preferences into the organizational life of politics have likewise atrophied.

Inequality may result, but it is not the inequality of one individual versus another. In the absence of intermediary institutions, politics becomes increasingly a series of demands by individuals or trade interests with narrow, usually monetary, demands on the political class. The perceived inequality is not so much the immediate reflection of the stratification of society, but the loss of responsible political institutions that provide the intermediation between masses of individuals and government.

The messiness of democratic politics exists in a world somewhere between pluralism and public choice. Interest groups compete for state attention and the benefits of connections to the political elite. But the hollowing out of political institutions leaves less politics and more connections, and a world which increasingly resembles the public choice vision of concentrated interests having sway. The question of inequality is always present, but is exacerbated by the failure of institutions offering means of engagement.

About the Author
Samuel Issacharoff is the Bonnie and Richard Reiss Professor of Constitutional Law at New York University.