Suchergebnisse

As we gather at this Symposium to probe the definition of democracy in the coming century, it seems fitting to note that we are continuing a very old political conversation rather than initiating a new one. The meaning of democracy has long been contested. One of the most vexing aspects of the debate has always centered on whether and how to limit the majority's prerogative to act in ways that disadvantage minorities. Viewed from a different angle, the question is how to configure the relationship between majority preferences and equality norms. It is the basic dilemma of democratic equality: What kind and measure of equality does democracy require? Formal political equality alone? Social, economic, or cultural equality as an aspect of political equality? On what basis? Although a topic of lively debate among political theorists, these questions by no means constitute a purely academic exercise. Constitutional law regularly enters this debate as courts confront laws that reflect, create, or entrench social inequality, by which I mean group-based social subordination, stigmatization, or disadvantage. When courts decide whether majoritarian laws of this kind violate constitutional equality norms, judges necessarily-if only tacitly-join the enterprise of negotiating the relationship between democracy and social equality. Cases involving a range of constitutional provisions might be understood to pit democracy and social equality against one another, though none quite as conspicuously as equal protection cases. At least since the appearance of the famous footnote four in United States v. Carolene Products Co., the intersection of democracy and social equality has been a controversial one in constitutional law, and its contours remain unsettled. Footnote four's vision of democratic equality has gone largely unrealized. And, apart from scattered assertions by various justices simply pronouncing democracy to be inconsistent with discrimination without explaining why, the Supreme Court has never elaborated a clear ...