Framing Equal Opportunity: Law and the Politics of School Finance Reform

By Michael Paris | Go to book overview

CHAPTER SIX
THE COMMON SCHOOL
IN LAW AND POLITICS:
THE DEMOCRATIC
ROAD TO ROSE V.
COUNCIL FOR BETTER
EDUCATION

When reformers in the united states turn to law and courts in pursuit of their goals, they inevitably face an objection from the perspective of majoritarian democracy. We entrust legislators to make policies, this argument goes, because they have been chosen by the people, and they are directly accountable to them at the ballot box. As a general matter, judges are not so accountable. Even if they happen to be elected, as they are in Kentucky, judges are supposed to follow the law, not make it. Of course, between following the law and making it up, there lies a vast realm of debates about the nature of legal interpretation and judicial decision making. Before we know whether judges are “following the law,” we have to give a theoretical account of what it means to do so, and that account will be controversial. Before we blithely say that courts are a countermajoritarian force in American politics, we should consider whether courts are really just one institutional channel for action, among many channels, neither more nor

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