Felix Frankfurter’s Revenge: An Accidental Democracy Built by Judges


The first decade of the twenty-first century opened and closed with two bitterly contested Supreme Court decisions impacting American democracy. In Bush v. Gore, five members of the Court prevented Florida from completing are count of the deciding votes in the 2000 presidential election.’ In Citizens United v. FEC, a five-vote majority overturned two recent precedents and a century of practice in ruling that for-profit business corporations enjoy a First Amendment right to spend unlimited sums on the eve of an election to influence its outcome.

Many have noted the artificially rigid nature of the electoral equality analysis in the per curiam opinion in Bush v. Gore, and the majority’s departure from federalism principles in depriving Florida’s courts of the power to make the final decision about whether to continue the recount. Citizens United is also vulnerable to doctrinal critique. Justice Anthony Kennedy’s majority opinion never persuasively confronts the threshold question of whether for-profit business corporations are comparable to flesh-and-blood individuals for the purposes of First Amendment analysis. A century ago, in Hale v. Henkel, the Court faced a similar issue, ruling that corporations (and other collective entities)are not protected by the right to remain silent enjoyed by flesh and blood individuals. In his dissent in Braswell v. United States, Justice Kennedy expressed full agreement with denying Fifth Amendment self-incrimination protection to large, multi-shareholder corporations, stating:

Our long course of decisions concerning artificial entities and the FifthAmendment served us well. It illuminated two of the critical foundations for the constitutional guarantee against self-incrimination: first, that it is an explicit right of a natural person, protecting the realm of human thought and expression; second, that it is confined to governmental compulsion.

In Citizens United, however, Justice Kennedy treats for-profit business corporations as fully-protected First Amendment speakers without fully explaining why the right to electoral speech is not also “an explicit right of a natural person, protecting the realm of human thought and expression.” Justice Kennedy rests his radically differing treatment of corporations under the First and Fifth Amendments on an intuition about the differing third-party effects of corporate speech and corporate silence. He appears to believe that refusing to permit a corporation to exercise a Fifth Amendment right to remain silent has no effect on third-parties, but that unlimited corporate electioneering on the eve of an election necessarily benefits hearers/voters. For Justice Kennedy, the corporation’s First Amendment right to speak is wholly derivative of the voters’ need to know. Justice Kennedy never explains, however, why it is so clear that the prospect of massive infusion of one-sided corporate campaign speech on the eve of an election necessarily benefits the voting public. As the dissenters argued, it is equally plausible to fear that an uncontrolled exercise of disproportionate electoral power by an artificial entity with huge economic advantages will drown out opponents, manipulate voters, and destabilize the democratic process. Given the existence of such a fundamental (and empirically non-resolvable) disagreement over whether unlimited corporate electioneering on the eve of an election benefits voters or burdens democracy, I believe that the Citizens United majority should have left the issue to the voters themselves who, for more than one hundred years, have sought to limit corporate electoral influence by enacting bans on corporate electioneering at the national, state, and local levels.

While it is tempting to continue to pound on the two cases doctrinal shortcomings (I’ll do more pounding on Citizens United, infra), doctrinal criticism, while important, almost never demonstrates definitively that a hard democracy case was wrongly decided. In both Bush v. Gore and Citizens United, for example, constitutional doctrine can plausibly be interpreted to support the majority opinion. In Bush v. Gore, seven Justices, including Justices David Souter and Stephen Breyer, were persuaded that unconstitutionally unequal criteria were being applied in different Florida counties to measure the validity of contested presidential ballots. Justices Souter and Breyer disagreed only with the five-Justice majority’s decision to prevent Florida from seeking to continue the recount after correcting the equality violations. Even the five-Justice decision to end the Florida recount, while deeply problematic as a matter of federalism, was based on a fear that unless the Court acted immediately, expiration of the congressional safe-harbor period designed to insulate state presidential electoral results from congressional challenge might result in disenfranchising the entire state, or worse. While I believe that Florida should have had the final say on whether to take such a risk, and that the Court’s refusal to trust Congress to act responsibly in dealing with a contested electoral college issue bordered on contempt for the democratic process, I concede that treating the issue as one for Supreme Court resolution was defensible in the special context of a presidential election with immense national and international repercussions.” Similarly, in Citizens United, First Amendment stalwarts like Floyd Abrams and the American Civil Liberties Union have applauded Justice Kennedy’s opinion as a great victory for free speech. Thus, while I believe that both cases got the law wrong, I cannot deny that reasonable people might differ as a matter of pure doctrine.

There is, however, a second level of critique potentially applicable, not only to the majority opinions in Bush v. Gore and Citizens United, but to the full range of judicial decisions that have shaped the contours of American democracy for the past half-century: I call it the critique of democracy, a critique that asks whether a given judicial decision supports or undermines the ability of “We thePeople” to govern ourselves pursuant to a robust and egalitarian democracy.Under existing constitutional ground rules, American judges, confronted by a hard constitutional case with implications for democracy, are not required-indeed, they may not even be permitted-to ask whether the outcome is good orbad for democracy. Rather, at least since the foundational case of Baker v.Carr,” they are expected to resolve the case by shoehorning it into one or another of a series of doctrinal categories like equal protection, freedom of association, or free speech, without ever asking what kind of democracy they are building. The result has been the emergence of an accidental constitutional law of democracy built by judges operating with doctrinal tunnel vision. It is, I believe, long past time to bring concern over the quality of American democracy back into the judicial equation.

The 1787 Constitution rests on three ideas implicit in the constitutional structure: separation of powers, federalism and democracy. Madison’s original version of the Bill of Rights presented to the House of Representatives on June 8, 1789 contained an explicit clause protecting the separation of powers. Two months later, the House rejected it. Despite the rejection of Madison’s explicit textual authorization, however, the Supreme Court has succeeded in forging a rich constitutional doctrine defining and protecting the separation of powers.

Similarly, in the absence of clear textual guidance, the Court has forged a complex judge-made constitutional law of federalism. Federalism ground rules, to put it mildly, do not jump out of the constitution’s text. For example, theFounders differed over whether the Necessary and Proper Clause vests the national government with implied power, to say nothing of the continuing disputes over the meaning of the term “commerce” in the Commerce Clause. And, while the Founders saw the Tenth Amendment as a protection of federalism, they differed over whether the word “expressly” should be placed into the text to negate the possibility of implied federal power. Thus, whatever one can say about the Court’s complex federalism jurisprudence, it is not compelled by a clear textual command.

Given the equivalent (at least) importance of democracy to the constitutional structure, there is no reason why a body of substantive constitutional doctrine could not be forged as well that defines and protects the robust, egalitarian self-government at the structural heart of the Constitution. I recognize, of course, that “democracy,” like “Our Federalism,” or “separation of powers,” or even “the freedom of speech,” is not a self-defining idea. Like most of the luminous but abstract ideas in the Constitution, however, the concept of American democracy has an understandable core-a commitment to robust self-government by citizens exercising equal political power-that can guide judges in deciding hard constitutional cases with implications for the working of the democratic process.At a minimum, when constitutional doctrine is narrowly balanced and one outcome clearly enhances the exercise of robust egalitarian self-government, and the other clearly impedes it, preserving robust democracy should be an important tie-breaking factor in judicial decision-making.

When Bush v. Gore and Citizens United are viewed through a democracy-sensitive lens, they emerge as judicially-imposed democratic disasters. Cutting off the Florida recount prevented the democratic resolution of a presidential election and resulted in a judicially-imposed President. From a democracy standpoint, it doesn’t get any worse. Similarly, unleashing unlimited partisan spending by enormously wealthy for-profit corporations on the eve of an election may be good for corporations, but it threatens to increase exponentially the already excessive role played by wealth disparity in our political process. I do not believe for a minute that a rational Founder would have knowingly designed a democracy where judges pick the President, and the very rich, especially for-profit corporations, dominate electoral discourse.

I hope to explain how we got to a place where American judges routinely ignore the quality of the democracy they are building, and to demonstrate that judges, operating solely at the level of legal doctrine, have accidentally developed an often profoundly dysfunctional constitutional law of democracy. I will argue that it is not too late to undo the damage. We can and should recognize that a judicially-enunciated constitutional law of democracy is more than the interplay of unrelated formal constitutional doctrines, however correct the doctrinal analyses may be on their own terms. Rather, deciding a hard democracy case(where reasonable people disagree over doctrine) should be viewed as a free-standing process designed to advance, enhance, and protect the ability of “We the People” to govern ourselves as equal and effective participants in the democratic process.

Suggested Reading

Citizens United is simply the culmination of the Court's narrow view of campaign finance, elevating individual speech rights and extending them to corporation sand unions at the expense of the broad, egalitarian conception of the American republic.