The Right to Participate

The following essay is excerpted and adapted from The Law of Democracy: Legal Structure of the Political Process, © The Foundation Press, Inc., Westbury, NY (1998). Publication is by permission. Constitutions are often viewed today as constraints on majoritarian power in the service of minority interests. But constitutional ground rules also create the possibility of ongoing democratic self-government; constitutions establish relatively stable and non-negotiable precommitments that enable generally accepted structures of political competition to emerge and endure.

Despite the centrality of this role for the American Constitution , however, there is paradoxically little that the text or its history offers in the way of directly relevant guidance. In part, this esults from the great silences of the Constitution regarding the structure of electoral politics - a silence that often reflects Americas peculiar federal structure, in which so much regarding the ground rules of political competition was left to be settled at the state level. Thus, neither the original Constitution nor the Fourteenth Amendment secured even the basic right to vote.