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Association: Name: American Political Science Association URL: http://www.apsanet.org
Citation: URL: http://www.allacademic.com/meta/p152256_index.html Direct Link: HTML Code:

Rush, Mark. and Manfredi, Christopher. "Damned if you...Active Liberty and the Supreme Court's Vision of Democracy" Paper presented at the annual meeting of the American Political Science Association, Marriott, Loews Philadelphia, and the Pennsylvania Convention Center, Philadelphia, PA, Aug 31, 2006 <Not Available>. 2011-03-13 <http://www.allacademic.com/meta/p152256_index.html>

Rush, M. E. and Manfredi, C. , 2006-08-31 "Damned if you...Active Liberty and the Supreme Court's Vision of Democracy" Paper presented at the annual meeting of the American Political Science Association, Marriott, Loews Philadelphia, and the Pennsylvania Convention Center, Philadelphia, PA Online <PDF>. 2011-03-13 from http://www.allacademic.com/meta/p152256_index.html

Publication Type: Proceeding Abstract: In Active Liberty, Justice Stephen Breyer urges the Supreme Court to take an active role in fostering an ancient vision of liberty to complement the modern more negative vision of liberty that has dominated the court’s reasoning for most of its history. Breyer’s vision is based on his belief that the Constitution embodies a commitment to promoting the people’s liberty to engage in an “active and constant participation in collective power” (4). As a result, part of his analysis in Active Liberty entails the application of his vision to the management of political competition. Specifically, he supports restrictions on campaign spending and explains that such restrictions on the political speech of individuals are actually justifiable insofar as they promote a better quality of collective speech and a correspondingly more robust democracy. Justice Breyer’s vision is internally contradictory. On the one hand, his advocacy of judicial modesty and his deference to the legislature’s expertise seems to be a call for judicial restraint. On the other, his advocacy of a particular vision of democracy, predicated on the need to promote active liberty, ensures judicial meddling in decisions concerning the political process. Breyer’s theory echoes the writing of John Hart Ely and Samuel Issacharoff and Rick Pildes, all of whom have voiced concerns about the importance of process theory and the need to police the structure of the political process and competition. Breyer’s concerns with the integrity of the democratic process have subtle, but well-established roots in the Supreme Court’s jurisprudence. The fairness of the political process and the impact of structural flaws on the meaning of the franchise were addressed early on by the Court in decisions from the 1960’s and 1970’s concerning ballot access rights of minor parties and independent candidates and the need for the state to play a custodial role in policing the political process. Most recently, his vision is clearly stated in the Court’s decisions in Shrink Missouri and FEC v. McConnell. The legal and political science academy are split concerning the wisdom of a view such as Breyer’s. Critics such as Issacharoff and Pildes argue that deference to the legislature’s custodial role is potentially devastating if it causes the court to turn a blind eye to the self-serving interests of legislators who can erect barriers to political competition while cloaking their efforts in the mantel of the public interest. Others, however, claim that judicial deference to the political branches is better than the alternative: management of political competiton by judicial novices (see, e.g., Lowenstein, Persily) Breyer’s theory compares in many ways to John Hart Ely’s vision set forth in Democracy and Distrust. Breyer does, of course, expand and apply his vision to more areas of policy making than Ely. Still, at least with regard to overseeing the political process, Justice Breyer does more to elucidate the tensions of democratic theory than he does to manage them. In the end, Breyer’s theory fails because it is unable to reconcile the democratic tension at the heart of judicial review and fails to set forth a coherent definition of the democratic vision in the Constitution that he seeks to promote.

State Regulations of Judicial Campaigns: The Constitutionality of Limiting Political Activities & Speech of State Trial Court Candidates

State Regulation of Judicial Campaigns: The Constitutionality of Limits on Political Activities and Speech of State Trial Court Candidates