Taking Virtual Representation Seriously

By Fishkin, Joseph | William and Mary Law Review, April 2018 | Go to article overview

Taking Virtual Representation Seriously


Fishkin, Joseph, William and Mary Law Review


TABLE OF CONTENTS  INTRODUCTION                                     1682 I. BAD VIRTUAL REPRESENTATION--AND ALTERNATIVES  1690    TO IT    A. Which Interests Matter?                    1697     1. All Politics Is Partisan                  1697     2. All Politics Is Racial                    1699     3. All Politics Is Local                     1701    B. The American Approach                      1702 II. GOOD VIRTUAL REPRESENTATION?                 1709    A. Piggybacking on Geography                  1710    B. Prison Gerrymandering and Baker v. Carr    1712    C. The Limits of Proportional Representation  1719 III. VIRTUAL REPRESENTATION IN THE CONSTITUTION  1722 CONCLUSION                                       1727 

INTRODUCTION

"If I am not for myself, who will be for me? But if I am only for myself, what am I?" (1) 

Nobody likes virtual representation. Even the suggestion of it carries a taint of illegitimacy. There are good reasons for this. The history of democratic political development, both in this country and elsewhere, has been a history of the incremental, halting, painfully slow, sometimes reversed, always contested replacement of virtual representation, in which people do not get to vote for their representatives, with actual representation, in which they do. Over time, democracies have determined that various groups of people such as women, racial minorities, and the poor, are capable of choosing their representatives at the ballot box.

In the United States in particular, this is not just any history. It is the spine of our dominant democratic narrative. Our major moments of enfranchisement, many of them memorialized in Article V Amendments to the Constitution, (2) link together into a constitutional story, and the story has a moral: we are capable of choosing for ourselves, rather than relying on the wisdom and beneficence of others--for definitions of "we" that include not just well-heeled white men but also women, minorities, and the poor. To be sure, our actual constitutional history is considerably less Whiggish than this narrative. Just ask the women of Revolutionary-era New Jersey, who won the right to vote in 1776 and then lost it in 1807 for more than a hundred years, or the African American men of the former Confederacy, who won the right to vote during Reconstruction and then lost it for the first two-thirds of the twentieth century. (3) The tragedy of these reversals does not diminish the moral story, but rather tends to augment it. The right to vote--that is, the right to actual, direct representation--is a moral beacon by whose light we now retrospectively view much of our democratic history.

In this great story, virtual representation is cast as a villain. It played an especially explicit and conspicuous role as a villain in the fight over women's suffrage. "[T]he virtual representation argument," Reva Siegel explains, was "the core of the antisuffrage case." (4) For more than half a century, suffrage opponents pressed various related arguments to the effect that women were better off with virtual representation, with their husbands and fathers voting in ways that would take their interests into account. (5) There was a right side and a wrong side in that debate. When the right side eventually won, (6) our polity crossed a line that later democratic theorists would view as conceptually significant: for the first time ever, most of the representation in our system of representative government was actual rather than virtual. (7)

This long trajectory, and the legitimate sense of enlightened democratic accomplishment that accompanies it, leaves virtual representation today in a very awkward place, like an unwanted guest from less democratic times that has greatly overstayed its welcome. The reasons why we have virtual representation in the first place--its conceptual foundations and justifications, the normative universe in which it made sense--have largely been lost. …

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