The Puzzling Persistence of Process-Based Constitutional Theories

In deciding constitutional cases, the Supreme Court has often invoked a vision of how politics should work, justifying judicial intervention as a response to supposed gaps between that vision and political reality. Legislation or other governmental action is of constitutional concern, the Court suggests, when it seems to obstruct political representation and accountability—by blocking speech or voting, for example—or when it reveals the existence of past or present obstructions—by distributing the law's benefits and burdens in ways that show a particular group to have been denied fair representation. ¹ By invalidating legislative or administrative acts of this sort, the Court can reason, it avoids controversial judgments about substantive issues left open by the Constitution's text and history, and safeguards the representative character of the political process.