Samuel Issacharoff (New York University School of Law ) has posted Democracy and Collective Decisionmakingm (International Journal of Constitutional Law, Forthcoming) on SSRN. Here is the abstract:
This article addresses some of the more difficult and perhaps unresolvable problems that emerge concerning when courts are forced to confront the question of what is the proper polity to resolve deeply contested issues. Such cases, which are drawn from courts in many different national settings, typically force a confrontation with the fundamental institutional arrangements of democracy. These cases challenge the ability of courts to mediate highly explosive political questions and provide a cautionary tale of the difficult path that courts must traverse in trying to police the boundaries of constitutional democracy.
The discussion will begin with a series of cases in which autonomy rights are claimed by a subset of the population, demanding the right to determine legal and social arrangements independently of the broader community. The most compelling and most famous of these cases addresses whether the people of Quebec had a right to secede from Canada through a direct plebiscite of the Quebecois. In Quebec and in each of the case examples, the judicial resolution is unsatisfying precisely because of the apparent lack of a controlling principle for determining what is the right level of aggregation for collective decisionmaking.
The second part of this article then places the difficulty of defining the proper polity in the broader context of longstanding theoretical uncertainty about the nature of collective decisionmaking. The literature on what happens when the people gather to express their will runs the gamut. On the one hand, we believe intuitively that two heads are better than one, and we can extrapolate from that to a much broader reservoir of knowledge when the many decide rather than the few. On the other hand, we know that mobs can act in destructive ways that individuals acting alone could never achieve. And we suspect that as soon as a lot of uninformed or uninterested citizens come together, they are likely to be manipulated by the most self-interested or the most unscrupulous.
The Article concludes on a cautionary note for courts confronting these first-order political cases. Although the legal claims are typically case in the customary form of demands for individual rights of participation, these cases are invariably about deep-seated institutional accommodations. Courts necessarily tread lightly and cautiously when navigating the central institutions of national politics.
