Yale Law Journal: Volume 121, Number 6 - April 2012

By Yale Law Journal

This issue of The Yale Law Journal (the 6th issue of Volume 121, academic year 2011-2012) features articles and essays by several notable scholars. Principal contributors include Daryl Levinson (on votes and rights), Michelle Wilde Anderson (on dissolving cities), and Patricia Bella (on WikiLeaks and national security law). The issue also features student contributions on elected prosecutors in legal history and on execution of the mentally retarded as an issue under section 1983 civil rights law.

The editors of The Yale Law Journal are a group of Yale Law School students, who also contribute Notes and Comments to the Journal's content. The lead articles and features are written by internationally recognized legal scholars. This is Yale Law Journal: Volume 121, Number 6 - April 2012.

• Language: English
• Publisher: Quid Pro, LLC
• Release date: Apr 18, 2014
• ISBN: 9781610279437

Yale Law Journal

The editors of The Yale Law Journal are a group of Yale Law School students, who also contribute Notes and Comments to the Journal’s content. The principal articles are written by leading legal scholars.

Book preview

THE YALE LAW JOURNAL

APRIL 2012

VOLUME 121, NUMBER 6

Yale Law School

New Haven, Connecticut

Yale Law Journal

Smashwords edition. Published by Quid Pro Books at Smashwords. Copyright © 2012 by The Yale Law Journal Company, Inc. All rights reserved. This work or parts of it may not be reproduced, copied or transmitted (except as permitted by sections 107 and 108 of the U.S. Copyright Law and except by reviewers for the public press), by any means including voice recordings and the copying of its digital form, without the written permission of the print publisher.

The publisher of various editions is The Yale Law Journal, who authorized this work to be digitally published in ebook editions, for The Yale Law Journal, by Quid Pro Books. Available in major digital formats and at leading retailers and booksellers.

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Cataloging for Volume 121, Number 6 — April 2012:

ISBN: 1610279433 (ebk)

ISBN-13: 978-1-61027-943-7 (ebk)

CONTENTS

ARTICLES

RIGHTS AND VOTES

By Daryl J. Levinson

(121 YALE L.J. 1286)

DISSOLVING CITIES

By Michelle Wilde Anderson

(121 YALE L.J. 1364)

FEATURE

WIKILEAKS AND THE INSTITUTIONAL FRAMEWORK FOR NATIONAL SECURITY DISCLOSURES

By Patricia L. Bellia

(121 YALE L.J. 1448)

NOTE

THE ORIGINS OF THE ELECTED PROSECUTOR

By Michael J. Ellis

(121 YALE L.J. 1528)

COMMENT

CAN SECTION 1983 HELP TO PREVENT THE EXECUTION OF MENTALLY RETARDED PRISONERS?

By Doug Lieb

(121 YALE L.J. 1571)

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YALE LAW SCHOOL

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FACULTY EMERITI

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   Barton Beebe, B.A., Ph.D., J.D., Anne Urowsky Visiting Professor of Law (fall term)

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† Richard R.W. Brooks, B.A., M.A., Ph.D., J.D., Leighton Homer Surbeck Professor of Law

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   Guido Calabresi, B.S., B.A., LL.B., M.A., Dr.Jur., LL.D., D.Phil., H.Litt.D., D.Poli.Sci., Sterling Professor Emeritus of Law and Professorial Lecturer in Law

‡ Stephen Lisle Carter, B.A., J.D., William Nelson Cromwell Professor of Law

‡ Amy Chua, A.B., J.D., John M. Duff, Jr. Professor of Law

   Jules L. Coleman, B.A., M.S.L., Ph.D., Wesley Newcomb Hohfeld Professor of Jurisprudence and Professor of Philosophy

   Dennis E. Curtis, B.S., LL.B., Clinical Professor Emeritus of Law and Professorial Lecturer in Law

   Hanoch Dagan, LL.B., LL.M., J.S.D., Visiting Professor of Law and Oscar M. Ruebhausen Distinguished Senior Fellow (fall term)

   Harlon Leigh Dalton, B.A., J.D., Professor Emeritus of Law

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   Bryan Garsten, B.A., M.Phil., Ph.D., Professor (Adjunct) of Law (spring term)

   Heather K. Gerken, B.A., J.D., J. Skelly Wright Professor of Law

‡ Paul Gewirtz, B.A., J.D., Potter Stewart Professor of Constitutional Law

   Robert W. Gordon, A.B., J.D., Chancellor Kent Professor of Law and Legal History

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   Robert D. Harrison, B.A., J.D., Ph.D., Lecturer in Legal Method

   Oona Hathaway, B.A., J.D., Gerard C. and Bernice Latrobe Smith Professor of International Law

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* Dan M. Kahan, B.A., J.D., Elizabeth K. Dollard Professor of Law

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* Harold Hongju Koh, A.B., B.A., J.D., M.A., Martin R. Flug ’55 Professor of International Law

* Anthony Townsend Kronman, B.A., J.D., Ph.D., Sterling Professor of Law

   Douglas Kysar, B.A., J.D., Deputy Dean and Joseph M. Field ’55 Professor of Law

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* Yair Listokin, A.B., M.A., Ph.D., J.D., Associate Professor of Law

   Carroll L. Lucht, B.A., M.S.W., J.D., Clinical Professor Emeritus of Law, Supervising Attorney, and Professorial Lecturer in Law

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† Daniel Markovits, B.A., M.Sc., D.Phil., J.D., Professor of Law

‡ Jerry Louis Mashaw, B.A., LL.B., Ph.D., Sterling Professor of Law

   Tracey L. Meares, B.S., J.D., Walton Hale Hamilton Professor of Law

   Noah Messing, B.A., J.D., Lecturer in the Practice of Law and Legal Writing

   Jeffrey A. Meyer, B.A., J.D., Visiting Professor of Law

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   Nicholas Parrillo, A.B., M.A., J.D., Associate Professor of Law

† Jean Koh Peters, A.B., J.D., Sol Goldman Clinical Professor of Law and Supervising Attorney

   Robert C. Post, A.B., J.D., Ph.D., Dean and Sol & Lillian Goldman Professor of Law

   J.L. Pottenger, Jr., A.B., J.D., Nathan Baker Clinical Professor of Law and Supervising Attorney

† Claire Priest, B.A., J.D., Ph.D., Professor of Law

‡ George L. Priest, B.A., J.D., Edward J. Phelps Professor of Law and Economics and Kauffman Distinguished Research Scholar in Law, Economics, and Entrepreneurship

   William Michael Reisman, B.A., J.S.D., Myres S. McDougal Professor of International Law

   Judith Resnik, B.A., J.D., Arthur Liman Professor of Law

   Roberta Romano, B.A., M.A., J.D., Sterling Professor of Law and Director, Yale Law School Center for the Study of Corporate Law

   Carol M. Rose, B.A., M.A., J.D., Ph.D., Gordon Bradford Tweedy Professor Emeritus of Law and Organization, and Professorial Lecturer in Law

† Susan Rose-Ackerman, B.A., Ph.D., Henry R. Luce Professor of Jurisprudence (Law School and Department of Political Science)

   Jed Rubenfeld, A.B., J.D., Robert R. Slaughter Professor of Law

   Peter H. Schuck, B.A., M.A., J.D., LL.M., Simeon E. Baldwin Professor Emeritus of Law and Professor (Adjunct) of Law

   Vicki Schultz, B.A., J.D., Ford Foundation Professor of Law

† Alan Schwartz, B.S., LL.B., Sterling Professor of Law

   Ian Shapiro, B.Sc., M.Phil., Ph.D., J.D., Professor (Adjunct) of Law (spring term)

   Scott J. Shapiro, B.A., J.D., Ph.D., Professor of Law and Philosophy

   Robert J. Shiller, B.A., Ph.D., Professor (Adjunct) of Law (fall term)

† Reva Siegel, B.A., M.Phil., J.D., Nicholas deB. Katzenbach Professor of Law

   James J. Silk, A.B., M.A., J.D., Clinical Professor of Law, Allard K. Lowenstein International Human Rights Clinic, and Executive Director, Orville H. Schell, Jr. Center for International Human Rights

   John G. Simon, B.A., LL.B., LL.D., Augustus E. Lines Professor Emeritus of Law and Professorial Lecturer in Law

   Robert A. Solomon, B.A., J.D., Clinical Professor of Emeritus of Law

   Kate Stith, A.B., M.P.P., J.D., Lafayette S. Foster Professor of Law

   Alec Stone Sweet, B.A., M.A., Ph.D., Leitner Professor of International Law, Politics, and International Studies

   Gerald Torres, A.B., J.D., LL.M., Maurice R. Greenberg Visiting Professor of Law (fall term)

   James Q. Whitman, J.D., Ph.D., Ford Foundation Professor of Comparative and Foreign Law

   Ralph Karl Winter, Jr., B.A., LL.B., Professor (Adjunct) of Law

   Michael J. Wishnie, B.A., J.D., Clinical Professor of Law and Director, Jerome N. Frank Legal Services Organization

† John Fabian Witt, B.A., J.D., Ph.D., Allen H. Duffy Class of 1960 Professor of Law

   Stephen Wizner, A.B., J.D., William O. Douglas Clinical Professor Emeritus of Law, Supervising Attorney, and Professorial Lecturer in Law

   Howard V. Zonana, B.A., M.D., Professor of Psychiatry and Clinical Professor (Adjunct) of Law

* On leave of absence, 2011—2012.

† On leave of absence, fall term, 2011.

‡ On leave of absence, spring term, 2012.

LECTURERS IN LAW

   John C. Balzano, B.A., M.A., J.D.

   Nicholas Bramble, B.A., M.A., J.D.

   Adam S. Cohen, A.B., J.D.

   Linda Greenhouse, B.A., M.S.L., Joseph Goldstein Lecturer in Law

   Lucas Guttentag, A.B., J.D.

   Jamie P. Horsley, M.A., J.D.

   Katherine Kennedy, A.B., J.D., Timothy B. Atkeson Environmental Lecturer in Law

   Theresa J. Lee, B.A., M.A., J.D.

   Jeffrey M. Prescott, B.A., J.D., (on leave)

   Jamin Raskin, B.A., J.D.

   Sia Sanneh, B.A., M.A., J.D.

   Daniel Wade, B.A., M.A., M.Div., M.S., J.D.

VISITING LECTURERS IN LAW

   Josh Abramowitz, B.A., J.D.

   Guillermo Aguilar-Alvarez, Lic. en Derecho (J.D.)

   Stephen Bright, B.A., J.D., Harvey Karp Visiting Lecturer in Law

   G. Eric Brunstad, Jr., B.A., J.D., LL.M.

   Cynthia Carr, B.A., J.D., LL.M.

   Brett Cohen, B.A., J.D.

   Eugene R. Fidell, B.A., LL.B., Florence Rogatz Visiting Lecturer in Law

   Lawrence J. Fox, B.A., J.D., George W. and Sadella D. Crawford Visiting Lecturer in Law

   Eugene Garver, A.B., Ph.D.

   Nancy Gertner, B.A., M.A., J.D.

   Frank Iacobucci, LL.B., LL.M., Gruber Global Constitutionalism Fellow and Visiting Lecturer in Law

   Benjamin Heineman, B.A., B.Litt., J.D.

   Howard Kahn, A.B., Ph.D.

   Brett M. Kavanaugh, B.A., J.D.

   Mark R. Kravitz, B.A., J.D.

   Daryl J. Levinson, A.B., M.A., J.D.

   Barbara Marcus, B.A., M.S., Ph.D.

   Braxton McKee, M.D.

   Andrew J. Pincus, B.A., J.D.

   Charles A. Rothfeld, A.B., J.D.

   John M. Samuels, B.A., J.D., LL.M.

   David A. Schultz, B.A., M.A., J.D.

   Michael Solender, B.A., J.D.

   Ko-Yung Tung, B.A., J.D.

   Stefan Underhill, B.A., J.D.

   Neil Walker, LL.B., Ph.D.

   John M. Walker, Jr., B.A., J.D.

THE YALE LAW JOURNAL

VOLUME 121

Rights and Votes

DARYL J. LEVINSON

[cite as 121 YALE L.J. 1286 (2012)]

ABSTRACT. This Article explores the functional similarities, residual differences, and interrelationships between rights and votes, both conceived as tools for protecting minorities (or other vulnerable groups) from the tyranny of majorities (or other dominant social and political actors). The Article starts from the simple idea that the interests of vulnerable groups in collective decisionmaking processes can be protected either by disallowing certain outcomes that would threaten those interests (using rights) or by enhancing the power of these groups within the decisionmaking process to enable them to protect their own interests (using votes). Recognizing that rights and votes can be functional substitutes for one another in this way, the Article proceeds to ask why, or under what circumstances, political and constitutional actors might prefer one to the other — or some combination of both. While the primary focus is on constitutional law and design, the Article shows that similar choices between rights and votes arise in many different areas of law, politics, and economic organization, including international law and governance, corporations, criminal justice, and labor and employment law.

AUTHOR. David Boies Professor of Law, New York University School of Law. Thanks to Gabriella Blum, Ryan Bubb, John Ferejohn, Barry Friedman, Heather Gerken, Ryan Goodman, Bernard Grofman, Don Herzog, Roderick Hills, Daniel Hulsebosch, Michael Klarman, Robert Keohane, Janos Kis, Douglas Laycock, Michael Levine, Dotan Oliar, Benjamin Sachs, Adam Samaha, Peter Schuck, Matthew Stephenson, and Adrian Vermeule, and to participants in workshops at Harvard Law School, New York University School of Law, and University of Virginia School of Law, for useful comments on drafts.

ARTICLE CONTENTS

INTRODUCTION

I. RIGHTS OR REPRESENTATION

A. Constitutional Structure and Rights

B. Constitutional Protection for Slavery

C. Emergencies and Executive Power

D. Rights as Representation Reinforcement

E. Voting Rights and Civil Rights

F. Comparative Constitutional Design

G. Democratization, Rights, and Redistribution

H. Global Governance

I. Corporate Law

J. Labor and Employment Law

K. Juries, Race, and Representation in Criminal Justice

II. HOW TO CHOOSE?

A. Absoluteness Versus Flexibility

B. Durability

C. Democratic Limitations

D. Expression and Acculturation

E. Summary

III. BEYOND RIGHTS VERSUS VOTES

A. Rights and Votes as Complements

B. A Third Option: Exit and Autonomy

CONCLUSION

INTRODUCTION

Rights and votes are commonly cast in stark opposition to one another. Theorists of political liberalism and justice tend to view rights as extrapolitical limitations on democratic decisionmaking. Constitutional lawyers, too, have long been obsessed with what they see as an inherent conflict between constitutional rights and democracy—and, at the institutional level, between judicial and legislative supremacy. Even where rights and votes are not pitted against each other, they are treated as categorically different phenomena. Disciplinary boundaries divide political and constitutional theorists — who tend to think in terms of rights and equality — from political scientists and election law scholars who are interested in the organization of power.¹ The division between rights and votes also cuts through the middle of constitutional law. A central organizing principle of doctrine, scholarship, and curriculum is the distinction between the structural provisions of the Constitution, which create the institutional framework of democratic government, and the rights provisions, which place limits on what that government is permitted to do.

Yet rights and votes need not be seen as working at cross-purposes or taxonomized as deeply different kinds. At least in some settings, rights and votes might be viewed instead as compatible tools for performing the same basic job. In particular, both can be used in domains of collective decisionmaking to protect minorities (or other vulnerable groups) from the tyranny of majorities (or other dominant social and political actors).² One way of protecting a minority is to create and enforce rights against majoritarian exploitation. Another is to structure the political process so that minorities are empowered to protect themselves.

In fact, rights and votes have been viewed as functionally similar in this way in a wide array of constitutional and political contexts. For example, the Framers of the U.S. Constitution attempted to protect the rights of property owners, religious dissenters, and other minorities by creating a structure of government that would politically empower these groups to block any attempt by overbearing majorities to trample their interests. James Madison and the other Federalist Framers dismissed the enumeration of rights — as in the Bill of Rights — as a less effective means to the same ends. More recent constitutional designers concerned with protecting ethnic and religious minorities have confronted the same choice between relying on mechanisms of political empowerment and rights backed by judicial review. The NAACP in the Jim Crow South had to decide whether to allocate resources to securing access to the ballot or to strengthening substantive rights protection — whether to push first for the Voting Rights Act or for the Civil Rights Act.³ Courts and constitutional theorists, too, have recognized that rights can compensate for the absence of political empowerment: this is the pivotal insight of process theorists like John Hart Ely and arguably the basis for much of the Supreme Court’s post-New Deal rights jurisprudence on the Carolene Products Footnote Four model.⁴ Courts have leveraged the functional similarities of rights and votes in other ways, as well. During times of war and crisis, for instance, the Supreme Court has attempted to protect civil rights and liberties indirectly by bolstering political checks on executive power.⁵

Consolidating and abstracting from these and other examples, this Article explores the functional similarities, residual differences, and interactions between rights and votes as tools for minority protection. The Article starts from the simple idea that the interests of vulnerable groups in collective decisionmaking processes can be protected either by disallowing certain outcomes that would threaten those interests (using rights) or by enhancing the power of these groups within the decisionmaking process to enable them to protect their own interests (using votes). Recognizing that rights and votes can be functional substitutes for one another, the Article proceeds to ask why, or under what circumstances, political and constitutional actors might prefer one to the other — or some combination of both.

More specifically, the Article is organized as follows. Part I surveys a range of contexts in which rights and votes have been recognized as alternative mechanisms for protecting the important interests of minorities and other vulnerable groups. While the primary focus is on constitutional law and design, the survey in Part I shows that similar choices between rights and votes arise in many different areas of law, politics, and economic organization, including international law and governance, corporations, criminal justice, and labor and employment law. In all of these contexts, rights and votes can serve as functional substitutes for one another.

That said, rights and votes are not always perfect substitutes. Drawing on the examples surveyed in Part I, Part II identifies and critically examines the most commonly cited differences between rights and votes that have been thought to bear on the choice of whether to use one or the other. One such difference operates along the dimension of breadth versus depth. Votes offer minorities and other groups the ability to exert influence over a broad range of issues, but with no guarantee of prevailing. Rights potentially offer such a guarantee, but only for a restricted range of issues. Along a different dimension, voting arrangements are generally believed to be more durable — more resilient against majoritarian opposition — than rights. A number of additional considerations, on the other hand, seem to weigh in favor of rights. For example, votes may be of little value for individuals and small minorities; attempts to bolster the political power of minorities may vest these groups with undesirable holdout power and generate high decision costs; and limitations on the permissible or practical scope of the political community may render some groups ineligible for political enfranchisement in the first place. Part II discusses these and other considerations that may influence the choice between rights and votes in any given setting.

Part III extends the central analysis of the Article in two directions. First, rights and votes are not just substitutes but also, in some circumstances, complements. Section III.A discusses a number of respects in which political representation may enhance the value of rights, and the other way around. Groups may need political power to preserve and enforce their rights, and rights may generate or be preconditions for the meaningful exercise of democratic political power. Second, rights and votes are not the only means of protecting minorities and other vulnerable groups from the outcomes of collective decisionmaking. Section III.B moves beyond rights and votes to consider a third common method of protecting minorities: federalism (or a range of institutional analogues). Rather than empowering minorities to exercise greater voice in political decisionmaking processes or using rights to protect them against particularly unfavorable outcomes from those processes, minority groups can be permitted to exit the larger political community and exercise autonomous decisionmaking authority in a community of their own. The discussion in this Section describes how decentralized governance arrangements offer a third alternative to rights and votes in some contexts and then proceeds to explore some of the relative advantages and disadvantages of that approach.

To avoid confusion, it should be noted at the outset that the Article’s use of the terms rights and votes may depart somewhat from ordinary meanings. Here, votes are understood to include not just ballots but also any form of representation or direct participation in processes of collective decisionmaking, or any institutional or structural arrangement of those processes that better enables groups to influence outcomes. Giving a minority group votes, in this expansive sense of the term, can mean enfranchising them at the polls. But it can also mean bolstering their voice through redistricting or proportional representation; increasing their decisionmaking power within the legislature by requiring supermajority votes or creating vetogates; facilitating pluralist bargaining or nonelectoral channels of influence through which minorities can exercise meaningful political voice even if they are outvoted; or creating structures and institutions like the separation of powers or the United States Senate that similarly empower numerical minorities to block or influence policy.

The analytic framework of the Article draws a further distinction between votes and exit in the form of decentralized, autonomous decisionmaking by particular groups or outright secession. Regrettably, this distinction cuts across the conventional category of constitutional structure, which is commonly understood to include both the electoral and institutional framework of national democracy (i.e., votes) and federalism (i.e., exit).⁶ Lumping federalism together with separation of powers has some advantages from the parochial perspective of U.S. constitutional law, but it elides the more broadly useful distinction, emphasized here, between empowering a group within a collective decisionmaking process (i.e., votes) and empowering the group to make its own decisions through a separate decisionmaking process (i.e., exit).⁷

As for rights, the term is applied broadly throughout the Article to characterize a wide range of substantive limitations on the permissible outcomes of collective decisionmaking processes. Also included under the rubric of rights in some contexts are affirmative entitlements to certain substantive outcomes — positive, welfare, and second or third generation kinds of rights, in addition to the traditional liberal or negative varieties. On the other hand, what are conventionally called voting rights are categorized for present purposes not as rights but as votes.⁸ In the modern world of constitutional law and theory, rights are strongly associated with judicial interpretation, specification, and enforcement, and the Article correspondingly pays special attention to judicially enforced rights. But given that judicial enforcement is not a prerequisite for meaningful rights protection,⁹ rights should not be understood as limited or reducible to the judicially enforced variety. Moreover, as the Article emphasizes throughout, voting rules are also subject to judicial enforcement.¹⁰ This is a further reason for treating the role of the judiciary as a separate variable, apart from the choice of rights and votes.

Abstracting from all of this definitional complexity, the distinction between rights and votes might be understood simply as a special case of the more general distinction between process and substance (or between means and ends). Indeed, at a very high level of generality, the Article’s contribution might be viewed merely as reiterating the familiar critical refrain that such distinctions do not run very deep. Like all procedural arrangements, votes predictably affect substantive outcomes. Consequently, outcome-based concerns can be addressed in either of two ways. The direct way is simply to specify up front that certain outcomes must (not) be produced. The indirect way is to allocate decisionmaking power or structure decisionmaking processes in such a way as to stack the deck in favor of desirable outcomes or against undesirable ones. If this observation is in some general sense familiar, it also remains surprisingly generative. Or so the discussion that follows will attempt to show.

I. RIGHTS OR REPRESENTATION

Rights and votes appear as functional alternatives in a broad range of settings in which collective decisionmaking processes threaten the interests of minorities and other vulnerable groups. The collection of examples that follows serves to illustrate the ubiquity of the choice between the two types of devices and the array of institutional forms each can take.

A. Constitutional Structure and Rights

A conventional divide in constitutional law separates structure from rights. The structural parts of the U.S. Constitution — consisting primarily of the first three Articles, which constitute the three branches of the federal government — are supposed to create a framework for democratic governance. Rights provisions, such as those enumerated in the Bill of Rights, are supposed to protect individuals and minorities against majoritarian abuses perpetrated through that framework.¹¹

But the rights/structure distinction is in many ways misleading. For one thing, it obscures the fact that the Bill of Rights, as originally conceived, was as much about protecting the political decisionmaking power of local majorities as about protecting the rights of individuals and minorities. Many of the rights it enumerated were meant not to protect against majoritarian tyranny, but, quite the opposite, to bolster majoritarian governance by placing limits on the self-serving behavior of federal officials and by safeguarding institutions of state and local self-government to insulate citizens from these officials’ despotic reach.¹² More relevant for present purposes, separating structure from rights misses the point that the original design of the Constitution relied primarily on structural arrangements to protect rights.¹³ Convinced that direct protection of constitutionally enumerated rights would be futile, the Federalist Framers, led by James Madison, attempted to secure rights indirectly, by creating a structure of government that would empower vulnerable groups to protect their interests through the political process.

To elaborate, the Framers were concerned about two different types of potentially vulnerable groups. The first was the citizenry at large — majorities — who might be tyrannized or plundered by despotic federal officials. This is a worst-case version of the inevitable agency problems of representative government. The Framers were also concerned that the principal-agent relationship between constituents and their representatives could become too tight, allowing dominant factions of the electorate to capture government for their own selfish ends—including, especially, the oppression of minorities.¹⁴ As Madison drew the distinction in Federalist No. 51, It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part.¹⁵

It was this latter problem, of faction, that Madison (among others) had come to believe was the most worrisome.¹⁶ In our Governments, Madison wrote,

the real power lies in the majority of the Community, and the invasion of private rights is cheifly to be apprehended, not from acts of Government contrary to the sense of its constituents, but from acts in which the Government is the mere instrument of the major number of the constituents.¹⁷

At the same time, however, Madison doubted that constitutional rights could do much to prevent political majorities or other powerful factions from having their way. The problem was that countermajoritarian rights could not be backed by the dread of an appeal to any other force within the community more powerful than the very majorities who posed the threat.¹⁸ On the assumption that the political and physical power in society were both lodged in a majority of the people,¹⁹ countermajoritarian rights would simply be disregarded or overridden when push came to shove.²⁰

Madison and the other Framers decided to take a different tack. Rather than attempting to enumerate and protect rights directly, they contrived a structure of government that they hoped would protect individual liberty and minority interests indirectly. This structure had several important components. Perhaps most important of all, shifting power to the national government of the extended republic would bring more factions into competition with one another and therefore make it more difficult for a stable, unified majority to capture the government and tyrannize minorities.²¹ Madison made the case that the security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests, and in the other, in the multiplicity of sects.²² At the same time, Madison believed that large federal election districts and the indirect election of Senators and the President would select for representatives who would possess most wisdom to discern, and most virtue to pursue, the common good of the society and insulate them from the heat of majoritarian political pressure.²³ In this way, the constitutional structure of government would refine and enlarge the public views by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their country and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations.²⁴

One obvious drawback of the Framers’ structural solution to the problem of majority tyranny was that it threatened to exacerbate the problem of agency. A plan to empower democratically insulated federal officials was bound to stoke Anti-Federalists’ fears of a distant national government tyrannizing the local citizenry. Responding to this worry, Madison offered a further structural solution, this one focused on the branches of the federal government and on the relationship between the federal government and the states. Just as a multiplicity of factions would compete with and check one another in society and the electorate, Madison reasoned, competition among the branches and levels of government might create a self-enforcing check on potentially despotic national officials. Thus, Federalist No. 51 describes how the constitutional separation of powers between the legislative and executive branches invites [a]mbition... to counteract ambition.²⁵ Along similar lines, Madison suggested that state governments would be motivated and empowered through various channels of political influence to enforce the federal power-sharing arrangement built into the constitutional design and to protect their citizens against national tyranny.²⁶ Here again, the idea was that the structural design of government would create politically self-sustaining protections for the rights and liberties of citizens.

In sum, Madison’s hope was that votes — here conceived very broadly as the constitutional structure of the national political process — would do the work of rights.²⁷ Viewed in this way, as Alexander Hamilton put it, [T]he [structural] Constitution is itself, in every rational sense, and to every useful purpose, A BILL OF RIGHTS.²⁸ Some decades after ratification, Madison continued to believe that [t]he only effectual safeguard to the rights of the minority, must be laid in such a basis and structure of the Government itself, as may afford, in a certain degree, directly or indirectly, a defensive authority in behalf of a minority having right on its side.²⁹

B. Constitutional Protection for Slavery

The constitutional law and politics of slavery, from the Founding through the Civil War, offers a vivid illustration of how constitutional structure was supposed to protect rights — in this case, the rights of slave owners. While it was generally accepted at the Founding that some sort of constitutional protection for slavery was a necessary condition for Southern states to join the Union, there was little inclination at the Philadelphia Convention to write explicit, substantive protections for slaveholders into the constitutional text.³⁰ In part, this was because some of the Framers were squeamish about that peculiar institution. Madison, for one, thought it would be wrong to admit in the Constitution the idea that there could be property in men.³¹ But it was also because Southern Federalists had internalized Madison’s more general approach to constitutional design. They were convinced that parchment guarantees for human bondage would not restrain a Northern majority committed to abolishing slavery.³² Thus, the Constitution contains no explicit, rights-like prohibition on national interference with slavery in the Southern states.³³

The slaveholding South preferred to stake its fortunes on the structural design of the federal government. Proportional representation in the lower house of Congress and the Electoral College, bolstered by the Three-Fifths Clause, held out the hope of eventual Southern control of the House