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Pillars of Democracy: Law, Representation, and Knowledge

Legal education plays essential roles in sustaining the pillars of constitutional democracy. These include law, its values, and institutions; elections and representation; and the knowledge institutions of which law schools are an integral part.

The ideas of government under law, and equality under law, central to our constitutional traditions, require independent courts. Yet personal attacks on judges, along with increased violence against certain minorities, threaten the ideal of equal justice under law. Legal training speaks to issues of fair process, equal treatment, and judicial independence. These ideas do not sustain themselves; they need to be taught, critically analyzed, and practiced. Indeed, respect for fair process is important throughout government, including adherence to “regular order” in the Congress (in which lawyers disproportionately serve). Law school curricula should reflect the needs for fair process in all parts of our system of governance.

A second pillar of constitutional democracy is fair voting and representation—with law laying down rules in advance—about who can vote, for what candidates, for which offices. But law can be used to obstruct as well as to support democracy by, for example, illegitimately suppressing the vote. Law schools should consider how to explore the significance of voting and representation, as well as the norms of political reciprocity on which a decent democracy rests. Just as we introduce our students to thick ideas of what it means to be a good judge, we should consider providing more analytical and normative attention to elections and elected representatives, asking, for example, whether principle and compromise might play different roles for a judge and for a legislator.

Knowledge institutions—universities (including law schools), a free press, and public and private offices devoted to gathering and disseminating data—are a third pillar of constitutional democracy. Self-governance requires informed voters, whose opinions rest on shared knowledge. Law schools today help fulfill the roles that President George Washington contemplated for a national university—to educate citizens in knowing their rights, knowing the law, knowing how to evaluate their representatives, and understanding government. Yet higher education, of which law faculties are a part, faces serious challenges, including new partisan divides about its value, and concerns about fair access. Other challenges confront the press, which supports democracy by reporting on matters of public concern, and government offices charged with responsibility for data collection. We should ask our students to reflect on how law sustains those institutions central to the epistemic foundations of democracy.

Finally, we should recognize that institutions can only do so much—character and attitude matter. Constitutionalism and democracy are supported by such lawyerly civic virtues as open-mindedness, fairness, integrity, and courage—the courage to stand up for equality, as did Justice Thurgood Marshall, and the courage to make compromises that enable our representative government to function.

Working together, we, as legal educators, and our students can help strengthen the pillars of constitutional democracy.