2016.09.19.1200 - Constitution Day - Pamela Karlan

Biography

Pamela S. Karlan is the Kenneth and Harle Montgomery Professor of Public Interest Law and co-director of the Supreme Court Litigation Clinic at Stanford Law School.  Her primary scholarly interests lie in the areas of constitutional law and litigation.  She is the co-author of several leading casebooks, including Civil Rights Actions: Enforcing the Constitution (with Low, Jeffries, and Rutherglen); Constitutional Law (with Stone, Seidman, Sunstein, and Tushnet); and The Law of Democracy: Legal Structure of the Political Process (with Issacharoff and Pildes).  She has also written a monograph on constitutional interpretation, Keeping Faith with the Constitution (with Liu and Schroeder), as well as dozens of scholarly articles.

 Karlan received her B.A., M.A., and J.D. from Yale and clerked for Judge Abraham D. Sofaer of the U.S. District Court for the Southern District of New York and Justice Harry A. Blackmun of the U.S. Supreme Court.  From 1986 to 1988, she served as an assistant counsel at the NAACP Legal Defense and Educational Fund.  During 2014 and 2015, she served as a Deputy Assistant Attorney General in the Civil Rights Division of the United States Department of Justice, where she received the Attorney General’s Award for Exceptional Service – the department’s highest award for employee performance – as part of the team responsible for implementing the Supreme Court’s decision in United States v. Windsorand the John Marshall Award for Providing Legal Advice – the department’s highest award offered to attorneys for contributions and excellence in specialized areas of legal performance – as part of the team responsible for guiding the department to its new position regarding Title VII and gender identity.  Karlan is a member of the American Academy of Arts and Sciences, the American Academy of Appellate Lawyers, and the American Law Institute.

 Abstract

 This lecture will situate some of the distinctive features of the upcoming 2016 presidential election season in a broader, “hydraulic” framework. The hydraulic view challenges the more “romantic” vision of American democracy that views elections as the process by which citizens pick leaders and thereby determine future public policy.  In reality, before the first vote is cast or the first ballot counted, the potential results are already constrained and channeled.   The kind of democracy we have, and even that we can imagine, is quite path dependent.  Our current politics is the product of a system produced by our past politics that has entrenched itself in a variety of structural ways embodied in our constitution. Ostensibly discrete doctrines governing issues such as voter registration, redistricting, political party autonomy, campaign finance, and the like are in fact part of a broader ecosystem, in which pressures or imperatives surge and retreat across doctrinal boundaries.

After giving some historical examples of this point, I turn to the meaning of “voting.” Even the seemingly simple idea of “voting” embodies a constellation of concepts with their own hydraulic relationships to one another: participation, aggregation, and governance.

The 2016 election cycle provides a series of powerful illustrations of the hydraulics of the law of democracy.  The lecture focuses on three examples: the new vote denial; the rise of Donald Trump and the decline of organized political parties; and the Supreme Court vacancy to show how participation, aggregation, and governance affect one another, as well as to show broader hydraulic effects.