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on cases and developments in law and the legal system.
on cases and developments in law and the legal system.
Republicanism vs. Liberalism
By Habib Olapade
Habib Olapade is a second-year law student at Yale University.
Throughout the last seventy-five years, the Supreme Court has explicitly and implicitly articulated two normative models for understanding the political activity in our representative democracy: liberalism and republicanism.  The models differ in that each provides a unique explanation for the social basis of human interests and legal rights as well as insight into what motivates citizens to engage in political activities. Republicanism posits that in substantive conflicts each state has a common interest that is independent of its constituents’ individual interests.  Under this theory, social and political rights are contingent upon political consensus rather than natural law or a commitment to a certain political philosophy.  Republican communities seek to establish and sustain a set of rights best suited to the community’s conditions and mores.  On the other hand, liberalism theorizes that, outside debates on procedures designed to ensure justice, the state can have no common interest that is independent of its constituents’ diverse desires.  Under this theory, the state’s citizens (and perhaps those outside the state) have a core set of rights that must be respected regardless of the voting majority’s political preferences. 
Republicanism and liberalism require its citizens to deliberate to achieve an end. Traditional deliberation requires participants to exchange ideas so that the polity can arrive at a reasonable answer to a public issue by voting.  Alternatively, voters can interact strategically, considering his or her own interests and then make conditional offers to others in the hopes of striking a bargain before the voting process begins.  This deliberation can serve one of two purposes. First, engagement may develop and refine one’s identity by forcing an individual to empathize with others and grapple with their views. In this theory, the political process provides benefits that are largely unconnected with casting a ballot. Second, deliberation may be valuable because it provides a forum for voters to assert and defend their rights and interests. These deliberative models can appear in republican and liberal states.
The breadth of American election law has broadened from property to encompass democratic factors involving bona fide residence, age, conviction status, and special purpose districts, scholars.  Granted, judges and politicians no longer justify franchise exclusions by arguing that enfranchised voters can accurately and effectively account for the excluded group’s interests.  Instead, enfranchisement has become a universal civil right. Indeed, in Harper v. Virginia Board of Elections (1966), the Supreme Court held, for the first time, that the right to vote was a fundamental right protected by the Fourteenth Amendment’s Equal Protection Clause.  Measures severely restricting this right had to satisfy strict scrutiny by (1) serving a compelling government interest and (2) advancing that interest through narrowly tailored means. Harper was significant because it was a marked departure from past cases permitting the state to use literacy tests and poll taxes to define its electorate according to its own notions of civic competence. What happens, though, when the state seeks to enhance the deliberative qualities of its political process by excluding residents who it deems to have a non-existent interest in a public question of general importance? Successive cases grapple with this dilemma.
The Court’s cases fall into two categories. The first set involves the imposition of a severe restriction on the right to vote, a state justification that the Court has not deemed categorically impermissible, and a judicial finding that the device was not sufficiently tailored to advance the state interest. Kramer v. Union Free School District No. 15 is illustrative.  This case involved an upstate New York school district that set courses of study, textbook selection, schoolhouse location, and annual budgets for its students. Local property taxes were used to finance the district’s activities, and the right to vote in district elections was confined to residents who either owned taxable property or parents and guardians of children attending district schools. The school district justified this policy on the grounds that only taxpayers and parents were sufficiently invested enough in the district’s problems to learn about the complex issues facing the district.
After a childless man living with his parents sued the district claiming that the exclusion violated his right to vote under the Fourteenth Amendment, the case reached the Court. The Justices assumed that the state’s deliberative rationale was compelling but refused to hold that franchise exclusions can never be justified by the state’s desire to enhance deliberation in its political process. The New York election scheme violated the Equal Protection Clause because it excluded voters who were informed and interested in school district matters while also enfranchising taxpayers and parents who couldn’t care less about the local school system. The Court followed a similar path of reasoning in invalidating state statutes that excluded out-of-state army reservists and non-tax-paying, registered voters from general elections and specialized elections involving municipal bonds, respectively.
The second set of cases builds off the Court’s acceptance of the state’s deliberative rationale in Kramer. The two exceptions are that (1) the Court finds that the state statute is appropriately tailored to protect the political process and (2) the challenged restriction involves a special purpose district that imposes negative externalities on residents outside the jurisdiction. Take Ball v. James.  This case involved the Salt River Project Agricultural Improvement Power District in Phoenix, Arizona. The district supplied water and electric power to public and private consumers. Only large farmers could vote in district elections despite the fact that district policies affected local economic and environmental conditions; the district was exempt from state and local property taxes, exempt from state rate regulations, had eminent domain powers, and could issue tax-exempt bonds.
The Court sustained this scheme on two grounds. First, it distinguished itself from the Kramer ruling by arguing that the Arizona district was not a general governmental authority with the power to levy ad valorem taxes or enact ordinances. Second, the Court noted that the district was originally formed to conserve and store water, not to exercise coercive authority over its inhabitants. Both justifications were to no avail. The district’s formal inability to levy taxes did not prevent it from redistributing wealth in the county in subtler ways. Farmers could approve municipal bonds, which disenfranchised personal property owners would have to pay for with their tax payments.
Indeed, the district’s voters had previously set admittedly inflated electricity rates to subsidize agricultural irrigation costs. Even if the district was not founded to advance this redistributive policy, that intent had no bearing on what the policy’s current effect was. One suspects that the result in Ball was more about curbing the Court’s foray into the “political thicket” of redistricting rather than displaying airtight deductive reasoning. 
The Court’s cases reveal a tension. On one hand, the Court has endorsed a liberal conception of the right to vote as a means to preserve other rights. On the other hand, the Court has protected political subdivisions that seek to foster the pursuit of a common interest through informed deliberation and selective exclusion. How do we reconcile the two theories? Perhaps Cambridge history professor Quentin Skinner has the answer.
He posits that concern for the preservation of individual liberty can give rise to political participation, civic virtue, and concern for the common good.  According to Skinner, personal liberty depends on placing oneself in “the service of [her] community” and preventing nepotistic beneficiaries from exploiting commoners. This theory would suggest that any negative liberty citizens in the polity enjoy is solely the product of the electorate’s collective willingness to seek, ascertain, and promote a common public good through open discussion recognizing each participant’s humanity. Freedom is not free.
 Frank Michelman, Conceptions of Democracy in American Constitutional Argument: Voting Rights, 41 U. Fla. L. Rev. 443 (1989).
 Morton Horwitz, Republicanism and Liberalism in American Constitutional Thought, 29 Wm. & Mary L. Rev. 57, 67 (1987).
 Supra note 1.
 Chilton Williamson, American Suffrage: From Property to Democracy 1760-1860 (Princeton, NJ: Princeton University Press, 1960).
 Williams v. Salerno, 792 F.2d 323 (2d Cir. 1986); Oregon v. Mitchell, 400 U.S. 112 (1970); Richardson v. Ramirez, 418 U.S. 24 (1974); Salyer Land Co. v. Tulare Water Dist., 410 U.S. 719 (1973).
 383 U.S. 663 (1966).
 395 U.S. 621 (1969).
 Carrington v. Rash, 380 U.S. 89 (1965); Cipriano v. City of Houma, 395 U.S. 701 (1969).
 451 U.S. 355 (1981).
 Colegrove v. Green, 328 U.S. 549 (1946); Jerome Frank, Law and the Modern Mind (Garden City, N.Y.: Anchor, 1963).
 Quentin Skinner, “On Justice, the Common Good, and the Priority of Liberty,” in Dimensions of Radical Democracy, ed. Chantal Mouffe (London: Verso, 1992).
Photo Credit: Flickr User Mark Fischer
The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.
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