Document Type

Article

Publication Date

1999

Abstract

The Supreme Court plays a critical role in resolving clashes between majority and minority interests and perspectives. The Equal Protection Clause, and at times the Due Process Clause, have become key vehicles for considering the most problematic intergroup conflicts that divide our society. Prior to this article, the Court heard cases dealing with affirmative action in government procurement programs, legislative districts designed to increase minority representation, state sponsored male-only military schooling, and a state constitutional amendment that would have proscribed antidiscrimination legislation protecting gay men and lesbians. While the Court declined to challenge California's anti-affirmative action referendum (Proposition 209) and Arizona's English-only state constitutional amendment, these unresolved disputes remain areas of likely future conflict. The Court's ability to resolve such majority-minority disputes in a manner that furthers democratic values is key to our polity's ability to be inclusive and equitable as it becomes increasingly diverse.

This Article argues, however, that the approach the Supreme Court has taken in resolving majority-minority disputes is inconsistent with the proper role of the Court in a pluralist democracy and therefore threatens both the legitimacy of the Court and the ability of our polity to resolve these important issues. The Court's privileging of majority views over those of the minority (or the “other”) is critical, not so much because it causes the Court to reach the “wrong” result in key battleground civil rights cases, nor even because the Court has adopted the “wrong” view of the world, but instead because the Court has failed to recognize the multitude of views and perspectives that exist in our society. This Article faults the Court not so much for its selection of the majority perspective, but for its failure even to recognize that it has made a choice and for its failure to attempt to reason with the alternative point of view.

This Article proposes an alternative adjudicative approach that integrates “outsider” insights of majority-minority differences into an interpretive framework grounded in a pluralist model of democracy. The proposed “relational framework” resolves these problematic cases by emphasizing pluralist democratic values of inclusiveness and participatory coequality in determining the constitutional values of the polity. This model requires the Court both to recognize and to engage the majorities and minorities that will be most affected by the Court's decision. The model also calls upon the Court to structure its decisions narrowly, so as to allow citizens to work out their own resolution to moral, political, and epistemological disputes to the greatest extent possible.

Publication Citation

58 Md. L. Rev. 150 (1999).