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.
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).
Copyright 2003 by the author, Mark C. Miller.
Back To LPBR Home