Joy Milligan, Protecting Disfavored Minorities: Toward Institutional Realism, 63 UCLA L. Rev. 894 (2016)
Constitutional theorists in the United States once believed courts could protect politically disfavored minorities from the excesses of democracy. Eventually, many lost faith in constitutional reform through litigation, as they saw courts fail to effectively implement rights protections. Given the judiciary’s institutional limitations, it appeared the only reliable way to secure constitutional rights was through democratic politics itself. “Constitutionalism outside the courts” promises to endow rights with the legitimacy and implementation capacity of the political branches, catalyzed by the energy of social movements and broad public participation. The risk, however, in turning to constitutionalism outside the courts is that we may come to idealize the political branches—just as previous generations once romanticized the courts. Successes like the civil rights movement and the landmark statutes it produced tend to loom large in our collective imagination, while periods when Congress and the executive fail to vindicate minority rights appear inevitable, an inherent part of majoritarian democracy.
This Article argues that to be realists about constitutional rights, we must scrutinize the constitutional failures of all three branches. Doing so yields a sharply different perspective. Congress and the executive branch frequently fall short in implementing constitutional principles, for reasons that go beyond lack of majority support. The basic institutional structure of American government impedes constitutional reform in all three branches—even when a national majority favors it. Separated powers, federalism, and the representation of distinct majorities in each branch of government all operate to preserve the status quo, providing determined opponents multiple opportunities to block, undermine, and undo change. The Article illustrates this pattern using a historical case study of African American farmers’ long-running, largely unavailing claims for equal protection.
The implications are sobering, but illuminating, for those who care about protecting disfavored minorities. Institutional realism suggests that such groups often must win enduring supermajority support in order to obtain, implement, and preserve rights protections at the national level. The inertia-favoring design of American government is often claimed to protect liberty, but the obvious question is: Does our democracy really benefit from a constitutional structure that simultaneously stifles majority will and insulates the status quo?