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

By Christopher M. Burke | Go to book overview

Chapter 5
Liberalism, Communitarianism, and Fair Representation

As I argued extensively in previous chapters, the Supreme Court resolved disputes over political representation by recourse to communitarian and liberal rhetoric, often using variants of each concept in the same opinion. In this final chapter, I situate the concept of fair representation in competing but not exclusive political theories: liberal theory and communitarianism. For example, if we articulate a claim for fair representation as a right, the discussion might be framed as: Does the right pertain to the individual absent a conception of the good? 1 Answering this question leads to more objections. The discourse produces new problems as it replaces and renames old ones. The law surrounding representation is characterized by a constant modification of the terms of the debate. 2 For example, there is a vibrant and expanding common law of the Voting Rights Act (VRA) and Equal Protection Clause stirring political controversy over the means used to promote the minority representation. 3

Predictably, the Supreme Court is not of one mind on the subject of fair representation, but the multiplicity of the justices' views raises several questions relevant for a culturally plural society. For instance, do voting rights pertain to the individual or to the group with whom the individual identifies? Must they pertain to the former at the expense of a claim by the latter? If the individual articulates rights claims through group membership, we may still ask which groups are recognized, and whose voice represents the group. 4 By one view of representation that stresses the group nature of politics and the special perspective of minorities, one cannot make a claim to speak on behalf of a minority group, to represent, absent group membership. One must possess traits and experiences that demarcate the group from the majority. 5 As a corollary, outsiders cannot criticize the story told by group members because they lack the

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