Vol. 13 No. 8 (August 2003)
OVERRULING DEMOCRACY: THE SUPREME COURT VS. THE AMERICAN
PEOPLE by Jamin B. Raskin. New
York: Routledge, 2003. 290pp. Cloth $27.50. ISBN: 0-415-93439-7.
Reviewed by Mark C. Miller, Associate Professor and Chair,
Department of Government, Clark University.
This interesting, highly readable if somewhat disjointed,
and provocative book attacks conservative judicial activism from a left-wing,
populist point of view. It attempts
to provide an overarching roadmap for how the Supreme Court should take steps
to promote democratic and participatory principles as the author defines them.
The unifying theme of the book is that conservative judicial activism
is in reality hostility to popular democracy.
Although the justices have never articulated a clear theory of democracy
in the author’s opinion, he nevertheless sees conservative judicial
activism as revealing the justices’ fear of popular democracy and of
the constituents of the Democratic Party. The author thus labels conservative
judicial activism as elitist and anti-democratic.
The author is currently a law professor at American University,
and he has served as an assistant attorney general in Massachusetts and as
a lawyer for the Rainbow Coalition. Some of his other legal clients have included the Service Employees
International Union, Greenpeace, Ross Perot, Ralph Nader, Students United
Against Sweatshops, and various high school students bringing civil liberties
cases.
The author is clearly angry about the Court’s opinion
in the BUSH v. GORE case, but the book goes well beyond a mere critique of
that particular decision. The
author is quite distressed about the Court’s statement in that case
that voters have no federal constitutional right to vote, but he also attacks
the Court’s previous decisions on racial gerrymandering, campaign finance
reform, corporate power, the so-called new federalism, and a variety of other
issues. As the author states
(p.9), “What infuses the Court’s response to problems with legislative
redistricting, ballot access, discrimination against new parties, debate exclusion,
corporate money and power in elections, and educational inequality is never
a belief in strong and universal participatory democracy but a stubborn and
elitist resistance to it.”
The book compares the current period of new federalism cases with the LOCHNER period and the DRED SCOTT period. The author then calls for the selection of progressive justices for the Supreme Court and organized political fights against conservative nominees. Somewhat surprisingly, the author also calls for the adoption of a wide variety of constitutional amendments in order to promote progressive participatory democracy. As the author states (p.10), “The urgent project of our time is to free popular democratic politics from the stranglehold of the Court. This means overcoming liberal fears about constitutional change and promoting progressive constitutional amendments to establish the citizen’s right to vote, majority rule in presidential elections, the equal rights of all political parties, and the young person’s right to an equal education for democratic citizenship.”
The book goes on to cover a broad range of constitutional
law issues and cases from a large number of eras. In addition to the introductory chapter which articulates the
general themes of the book, there is a full chapter attacking the Court’s
decision in BUSH v. GORE. There
is another chapter attacking various Supreme Court decisions dealing with
redistricting and voting rights issues. Another chapter pays particular attention to voting rights
for the residents of the District of Columbia and the territories and for
former felons. The chapter also
calls for the abolition of the Electoral College, in part because the Electoral
College dilutes the votes of non-whites.
Other chapters in the book discuss ways that the Supreme
Court should protect the interests of third political parties, saying that
the two-party system is extra-constitutional at best. At the end of the book, the author calls for major structural
changes in U.S. elections which would allow for proportional representation.
Another chapter attacks the legality of presidential debates that exclude
third party candidates.
Other chapters take on a variety of themes and issues. One chapter calls for a federal right
to an equal education and free speech rights in schools, accomplished through
constitutional amendments if necessary.
Education is important to a progressive sense of democracy because,
the author argues, “It is a mistake to think of democracy only as a
set of voting institutions. Democracy
is a larger principle by which we strive to link the people with the power
to govern society. It is the
real-life activity of the people actually taking and using power in everyday
life” (p.143). Another
chapter calls for greater government regulation of corporations in order to
preserve progressive democratic principles. The author is especially critical of judicial decisions giving
corporations legal rights such as the right to contribute money to political
campaigns. Although the author
spends a chapter attacking proposed constitutional amendments that would outlaw
flag burning, ironically the final chapter of the book explains in great detail
why progressive constitutional amendments should be adopted.
This book is very interesting and thought provoking. It certainly provides an intricate and
complex discussion of the author’s concept of a progressive populist
democracy and of the role of the Supreme Court in that vision. The book is quite provocative, if somewhat
disjointed at times. It covers
a wide range of constitutional issues from a variety of eras. I do not think all progressives would
agree with all the recommendations offered by the author, and at times it
is a little difficult to see how all the detailed recommendations fit into
the larger theme of the book. Thus,
the book is an important contribution to the literature, even if the whole
is somewhat less than the sum of its parts.
CASE REFERENCES:
BUSH v. GORE, 531 U. S. 98 (2000).
LOCHNER v. NEW YORK, 198 U.S. 45 (1905).
DRED SCOTT v. SANDFORD, 60 U.S. 393 (1856).
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Copyright 2003 by the author, Mark C. Miller.