Chapter Three develops the argument in favor of strong judicial review to correct malfunctions in our electoral system. The first section analyzes flaws in our current electoral system, explaining why the market for elective office is not sufficiently competitive. The next section reviews the Warren Court’s decisions in key malapportionment cases: Wesberry v. Sanders and Reynold v. Sims. Those cases provide a helpful model for strong judicial review to correct flaws in our electoral system. The chapter then presents a critique of four election law decisions since 1976 where the Supreme Court has contributed to democratic decay by engaging in antidemocratic judicial review. The final section presents several proposals for new constitutional rules that build on the principles articulated in Wesberry and Reynolds. The proposed rules are designed to enhance competition in the market for elective office and improve the quality of democratic self-government in the United States.

The Supreme Court has implemented a set of revolutionary changes in constitutional doctrine since the 1990s. It has developed a body of constitutional law that is rooted in a deep-seated mistrust of the People’s elected representatives. That body of law is one of several factors contributing to the problem of democratic decay in the United States. To reverse the process of democratic decay, the Court will need to repudiate much of the constitutional doctrine developed since World War II. In short, we need a Copernican revolution in constitutional law to revitalize popular control of the government. For far too long, the Court has placed itself at the center of our constitutional universe. Other actors in the system revolve around the Court, like planets revolving around the sun. To restore popular sovereignty and reverse the process of democratic decay, the Court must place We the People at the center of our constitutional universe, with other actors (including the Court) revolving around us.