2. Substantive issues notwithstanding, lockup/entrenchment theory requires judges
to balance of rights claims.
Accordingly, seeking to develop a theory of a free
political marketplace that does not incorporate the balancing of rights claims is
fruitless.
3. The comparison of the economic and political marketplace is at best incomplete
and at worst, simply inapt. As Hasen notes, we lack a “proper yardstick for
measuring success (or efficiency) in a political market.”
clear notion of how “competitive is competitive enough.”
4. Even if we could get around the problem of defining efficiency in terms of what
Hasen refers to as an appropriate level of political competition,
of democracy emphasize values that simply are not compatible or easily balanced.
As Lowenstein points out, a judge’s preference for individual rights, party-
government or progressive visions of democracy will inevitably lead him or her to
a particular resolution of a dispute that will differ with that chosen by a judge who
prefers another aspect of democratic theory.
5. Concerns with diminished political competition are misguided because they tend
to be focused too narrowly. Thus, Nate Persily argues that a great body of
political science research indicates that political competition is as robust as ever,
despite claims that incumbents seek to insulate themselves from it.
notes that while incumbents may seek to insulate themselves from partisan
competition by drawing safe districts, they are, nonetheless, still subject to
challenge in primaries. As a result, he argues, incumbents remain absolutely
attentive to their constituents’ wishes.
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Convention