The first chapter defines the counterpopular dilemma that courts face when, as an individual-rights-protecting, state-limiting institution, they are mandated to opine on the collective expression of political freedom. By enforcing rights – or, as is more typically advanced as the correct understanding of election law, restructuring democratic process to prevent abuses by those in power – politically nonaccountable courts are mandated to constrain the realization of democratic will. This creates a fundamental tension between the principle of democracy as empowered by and empowering the constituent members of the polity and judicial authority.

The Supreme Court has been at the center of great upheavals in American democracy across the last seventy years. From the end of Jim Crow to the rise of wealth-dominated national campaigns, the Court has battled over if democracy is an egalitarian collaboration to serve the good of all citizens, or a competitive struggle by private interests. In The Law of Freedom, Jacob Eisler questions why the Court has the moral authority to shape democracy at all. Analyzing leading cases through the lens of philosophy and social science, Eisler demonstrates how the soul of election law is a battle between two philosophical understandings of democratic freedom and popular self-rule. This remarkable book reveals that the Court’s battle over democracy has shaped how Americans rule themselves, marking election law as the most dramatic judicial intervention in constitutional history.

The tension between democratic autonomy and judicial authority over democratic process cannot be wholly resolved. The best way to balance this dilemma incorporates an unsettling reality about the freedom that vindicates democratic self-rule: the values and realization of freedom are necessarily the subjects of ongoing intractable struggle over its moral meaning. This perpetual contestability also offers the possibility of reimagining judicial review. This chapter exploits the election law doctrine’s fiercely unsettled case law to suggest that continual judicial debate about the appropriate terms of democratic freedom is the best way to reconcile judicial review with constituent self-determination. Conceiving of judicial review of election law as a dispute over self-rule answers the challenge at three levels: it (1) explains how nonaccountable courts can play a legitimate institutional role in democratic self-determination; (2) allows courts to opine on self-rule without overdetermining the meaning of freedom, and thus undermining its moral value; and (3) offers the best account of the doctrine as a battle over the meaning of liberalism.

Since Buckley v. Valeo, campaign finance jurisprudence has been riven by the constitutional limits on the regulation of funded campaign speech. The Court’s enduring but unpopular compromise that contributions can be limited to prevent corruption but that the right to free speech prevents the restriction of expenditures has been assailed as both too restrictive and insufficiently robust. The debate is typically cast as a straightforward question of which source of power is the greater threat: plutocratic wealth that can corrupt leaders, or a state that can oppress its citizens. However, this intractable conflict can be unified by considering democratic governance as a matter of constituent self-rule. Neither private nor state influence over campaign media overdetermines the results of elections; both operate to influence voters. The critical question is what poses the greater threat to voter cognition and preference development. This observation, framed by a Kantian understanding of free will, captures the true core of the judicial debates – contestation over what circumstances pose the greatest threat to the autonomy of voter preference formation.

This chapter synthesizes the unifying theme across the different domains by mapping each conflict onto the egalitarian–libertarian debate: does autonomous constituent self-rule demand ensuring that all constituents enjoy a baseline substantive opportunity to contribute to public governance, or require noninterference with the application of private power and constituent preferences (including by powerful or privileged constituents who will enjoy disproportionate practical influence over politics)? The Conclusion also describes the two related trends in current Supreme Court lawmaking that threaten contestation over freedom. There is the threat – most clearly expressed in Bush v. Gore – that purely tribal partisanship will overdetermine election law outcomes and displace rather than frame the debate over freedom. Second, the parallel rise of the use of summary modes of disposition further erodes the opportunities for philosophical engagement by the bench.

Political parties indisputably serve as intermediaries in converting individual political will into collective state governance. When they do so, are they servants or usurpers of constituent self-governance? While the White Primaries cases established that the Court intervenes when parties effect unequivocally illegitimate (i.e. racially exclusionary) democratic practice, when party affiliation activates constitutional scrutiny on a standalone basis remains unsettled. In areas such as state control over primary design and ballot access, the Court has struggled with parties’ dual status as public utilities and private organizations. This dual character has led to fierce debate regarding when the Court should police parties, and when they should be protected. Parties’ unsettled status has recently been exemplified by the partisan gerrymandering litigation, which highlights the debate over whether partisan coordination’s centrality to American governance facilitates or threatens popular self-rule. The Court has been hesitant to explicitly acknowledge that this raw question of parties’ impact on citizen self-rule drives its constitutional jurisprudence.

Given America’s history of racial oppression, addressing racial discrimination has been the Court’s most transformative engagement with democracy. The Reconstruction Amendments’ prohibition of racial discrimination explicitly legitimizes judicial advancement of racial equity in elections. Relying on this mandate during the Civil Rights era, the Court struck down explicitly discriminatory laws (and permitted robust congressional action) with little controversy. However, in recent decades the Court has been fiercely divided over the substance of racial equity. Conservatives have argued that racial equity requires only ensuring formal equality in terms of race. Progressives have argued for a substantive constitutional conception of racial equity that would permit laws and rulings that benefit disadvantaged minorities and afford them substantive political power. The chapter first observes the unity of this debate across applying Equal Protection Clause to districting, Section 2 of the Voting Rights Act, and the preclearance requirement of the Voting Rights Act. It then analogizes the struggle on the bench to Rawls’s and Nozick’s famous debate over the fair allocation of resources.

Chapter 4 examines the most stable point in election law – one person, one vote – to show that judicial contestation over freedom has always characterized modern election law. While one person, one vote is now a settled and widely accepted principle, its reception has been far more varied. Jurists and activists have celebrated it as advancing democratic fairness and breaking the rural stranglehold over state legislatures. Yet scholars have criticized it as lacking a clear or logical foundation. This chapter challenges that orthodox critique by reconstructing the legal development and moral significance of one person, one vote. The idea that malapportionment is unconstitutional, far from being woven from whole cloth in Baker v. Carr, was fiercely debated in the first half of the 20th century. The further development of one person, one vote further examined how a requirement of equipopulous districting advances minimum standards of legitimate democratic self-rule. As a normative innovation, one person, one vote represents the culmination of a hard-fought debate, the conclusion of which established that minimal procedural egalitarianism is morally obligatory in a liberal democracy.

This chapter evaluates whether any accounts of general constitutionalism can reconcile judicial review with popular autonomy. It evaluates three prevalent approaches: the Constitution as a fixed contract among the people (originalism) that includes judicial review; the Constitution as a fluid, dynamic instrument (living constitutionalism); and instrumental institutionalist accounts. Despite their insights and merits, none of these accounts can explain how the power to shape democratic process can be legitimately allocated to a nonaccountable, apolitical actor while fully recognizing the normative weight of democratic self-determination.