The Appearance of Equality: Racial Gerrymandering, Redistricting, and the Supreme Court

By Christopher M. Burke | Go to book overview

Introduction: The Evolving Discourse on Fair Representation

This book attempts to describe and undo various liberal and communitarian strategies of justification that structure United States Supreme Court opinions in the area of political representation. The interpretive method employed herein introduces a means by which to situate opinions and illustrate that no conception of representation is legally unassailable or inherently politically liberal or conservative. This book tells the uncertain story of the creation of political fairness by the Supreme Court and warns against relying upon legal institutions at the expense of the democratic process in the quest for fair representation.

With the evolution of the Voting Rights Act (VRA) from 1965 through the present, legal and political standards of fair representation have undergone vast change as previously excluded minorities have asserted a greater political presence. Enlarging the number of groups covered under the VRA ( 1975) and changing the standard of proof necessary to make out a claim of vote dilution ( 1982) have changed the way we think about what is representative and fair. The language used to characterize what is fair and representative and the political designs that the rhetoric reflects allow us to formulate arguments for and against different concepts of fair representation as legal standards change. The practice of deliberation, within and outside formal politico-legal institutions, creates the standard of fair representation rather than finding it beyond politics. We must argue and persuade others in the political community of the veracity of our views, and the formal law is a necessary part of the argument -- but not, perhaps, the entire solution.

The practice of law is paradoxical in the area of fair representation. The law demands that we hold explicit conceptions of the good regarding the legal mechanisms for ensuring fair representation, but truncates debate over differing conceptions of the good by placing certain options off limits (e.g., de jure proportional representation). The result is that the current debate over fair

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