3 - Traversing the Dilemma

Summary

The tension between democratic autonomy and judicial authority over democratic process cannot be wholly resolved. The best way to balance this dilemma incorporates an unsettling reality about the freedom that vindicates democratic self-rule: the values and realization of freedom are necessarily the subjects of ongoing intractable struggle over its moral meaning. This perpetual contestability also offers the possibility of reimagining judicial review. This chapter exploits the election law doctrine’s fiercely unsettled case law to suggest that continual judicial debate about the appropriate terms of democratic freedom is the best way to reconcile judicial review with constituent self-determination. Conceiving of judicial review of election law as a dispute over self-rule answers the challenge at three levels: it (1) explains how nonaccountable courts can play a legitimate institutional role in democratic self-determination; (2) allows courts to opine on self-rule without overdetermining the meaning of freedom, and thus undermining its moral value; and (3) offers the best account of the doctrine as a battle over the meaning of liberalism.