Democracy does not spontaneously occur by citizens gathering to choose laws. Instead, representative democracy takes place within an extensive legal framework that determines such matters as who gets to vote, how campaigns are conducted, and what conditions must be met for representatives to make valid law. Many of the “rules of the road” that operationalize republicanism have been subject to constitutional challenges in recent decades. For example, lawsuits have been brought against partisan gerrymandering—which is partly responsible for the fact that most congressional districts are no longer party competitive, but instead are either safely Republican or safely Democratic—and against onerous voter identification requirements that reduce the voting rates of certain voting populations.
These challenges were based on individual rights claims grounded in equal protection or free speech. This Article’s claim is that the rules of the road also implicate a structural constitutional principle, wholly independent of individual rights-based claims, that to date has gone unnoticed: what I call “Republican Legitimacy.” This Article explains Republican Legitimacy’s source and content, and the costs of failing to recognize it.
Republican Legitimacy’s absence has distorted judicial analyses and led to egregious conduct by members of the state and federal legislatures. As to courts, individual rights doctrines have been unable to protect the structural principle of Republican Legitimacy. Republican Legitimacy identifies legally significant facts that are overlooked by rights doctrines that focus primarily on individuals, provides conceptual traction that rights-based doctrines do not, and makes clear why various subdoctrines developed in the individual rights context that limit judicial review have no rightful application with respect to a structural principle like Republican Legitimacy. For these reasons, rights-based doctrines cannot protect the structural principle of Republican Legitimacy.
As to legislatures, Republican Legitimacy’s absence has led members of the legislative and executive branches to think that democracy’s rules of the road are a part of ordinary politics. Republican Legitimacy makes clear that politicians have a special duty to act with a higher order of care when choosing democracy’s rules of the road: they must act in accordance with “tempered” rather than “hardball” politics. As skeptical as one may be of politicians, there is no reason to assume legislators would not take seriously their oaths to uphold the Constitution once they understood it included Republican Legitimacy. Furthermore, there are steps that courts and Congress can take to encourage state legislatures—the institutions presumptively responsible for most of the rules of the road under the Constitution—to act consistently with tempered politics.