Changing the People: Legal Regulation and American Democracy

Tabatha Abu El-Haj - Drexel University, Earle Mack School of Law

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Introduction

In modern America, law pervades the practice of democratic politics—from the regulation of public assemblies to the minutiae of election administration—and the Supreme Court is perpetually asked to adjudicate political disputes. While we take this highly regulated political process for granted, it has not always been this way.

Today’s legalized democracy is the product of a particular period of regulatory transformation that brought the political process under comprehensive legal regulation between 1880 and 1930. This fact challenges two core assumptions that drive contemporary understandings of the American political process and the work of scholars who write about it. First, exposing how politics was regulated in the nineteenth century belies the assumption, especially prevalent in the literature, that law must extensively structure democratic politics. Second, recounting how self-governance was accomplished in nineteenth-century America serves as a reminder that elections, political parties, and voting, while critical to democracy, are not the whole deal.

I. Changing the People: The Regulatory Transformation of American Democracy

From the Founding to the 1880s, elections were part of an array of political practices that included public meetings, legislative petitions, street politics, and jury service. Americans used this repertoire of practices—some rugged and unsightly, others remarkably effective—to engage in democratic politics. This repertoire largely withstood significant changes in the substance of American politics through most of the nineteenth century.

These nineteenth-century political practices, while not unconstrained by law, were significantly less systematically and formally regulated by the state. The state did not provide an official ballot. Instead, political parties, which operated entirely outside of formal state supervision, printed their own. Public parades and assemblies occurred frequently and did not require official permits, and citizens—enfranchised and disenfranchised—could influence the legislative agenda through the relatively informal petitioning process. Finally, juries were widely understood to have a legitimate political function and were insulated from judicial second-guessing.

The precise form of legal regulation varied across political practices. For example, the rules governing petitioning were largely customary, whereas the framework for regulating public assemblies was state and local criminal law. What the various forms of early political regulation shared was minimalism. Regulatory controls were relatively weak and often exercised only intermittently. Thus, the people frequently had real autonomy from government—if not from social constraints and economic forces—as they sought representation.

Between 1880 and 1930, this repertoire of political practices changed as states and municipalities increased governmental controls over the full-range of avenues for political participation. These changes collectively constituted a transformation in the mode of regulating democratic practice. While the causes of change were multilayered and differed for each practice, the new mode of governance uniformly and significantly increased the government’s ability to structure the political process through law.1

The transformation was starkest for political parties. Concerned about rampant corruption, the Progressives succeeded in passing a host of new rules governing elections and, subsequently, political parties. In terms of governmental power, the critical change was the introduction of an official ballot. A single state-printed ballot required and enabled the state to regulate political parties in ways that it had not previously.

For most of the nineteenth century, a ballot had been a piece of paper produced by a political party, or a faction within a party, that a voter stuffed into a box. Regulations governing elections were largely limited to delineating suffrage eligibility and simple election procedures. American political parties “operated without any legal recognition or restriction.”2 When political parties produced their own ballots, there was no need to restrict how many parties could vie for office. It was not even necessary to restrict the number of candidates running under a given party label. If conflicts arose within a political party, they were struggled over and resolved privately. When irreconcilable differences arose, factions within a party produced different ballots. Individual voters also wrote in and struck out candidates.

Once the state insisted that there be a single ballot, that ballot became a limited resource, and the state had to establish rules for distributing access to it. Rules had to be established regarding which parties were worthy of inclusion on the ballot. This quickly raised questions regarding who would count as the legitimate candidate of a party as well as who within the party would be authorized to make that decision.

Prior to the adoption of an official ballot, political parties had “chose[n] their own nominating procedures and established their own bodies for internal governance.”3 The introduction of the official ballot changed all of that. Henceforth, the state frequently intervened in the inner workings of political parties and acted as the final arbiter of private disputes regarding political representation.

The official ballot thus marked a shift from a model in which law defined the ground rules of democracy to one in which law defined the processes of representation. This change was particularly significant because it gave incumbent politicians and the major political parties means by which to entrench themselves. The legislature, which comprised incumbents, was suddenly in a position to define the rules governing access to the ballot.

Other practices of nineteenth-century political action underwent analogous regulatory transformations with similar implications for state power. To take one example, the introduction of permit requirements for public assemblies between 1880 and 1930 ensured that people gathered in public now operated under legal supervision to a degree that was unprecedented.

Large gatherings on public streets were central to the democratic politics that emerged after the Founding. Starting in the Early Republic, festive street politics became a central facet of electoral competition. By the mid-nineteenth century, workers, poor people, racial minorities, and social movement participants all used city streets to further their political goals.

During this period, Americans had free access to public spaces for political purposes. Legal regulation was limited to criminal law. A public gathering was lawful as long as it had not become an unlawful assembly or riot under either state or local law. Citizens were not required to ask permission before exercising their right of assembly, and, once on the streets, they were entitled to remain unless and until there was a breach of the peace. In fact, the government was not entitled to regulate in anticipation of possible disorder.

This changed in the late nineteenth century as cities began to systematize and tighten their regulatory controls over urban public spaces, including over public assemblies in those spaces. Permit requirements for parades and other gatherings in public were virtually unheard of prior to the Civil War and remained rare in the early 1880s. By the 1930s, however, many American cities had settled on regulating public assemblies through such ordinances.

While it is not entirely clear what prompted the regulatory change, the new ordinances had important implications for governmental power. These ordinances meant city officials became the gatekeepers of public spaces with regard to public assembly. Previously, officials were involved in only those gatherings that disturbed the public peace. Prior to the introduction of permit requirements, there was, in effect, a presumption that gatherings in public places for social and political purposes were lawful. The new ordinances flipped that presumption: A gathering in public was inherently unlawful unless and until it was authorized by local officials.

The new ordinances solidified the local executive’s control over public assemblies in other ways as well. First, local officials had a role to play in advance of any public assembly, whatever its nature. Second, the ordinances effectively nullified the jury’s input on the lawfulness of the gatherings being regulated by rendering the factual inquiry into an entirely objective question—whether a permit had been sought and granted. This ensured that local officials alone would decide which assemblies should be prohibited. Third, these ordinances simply were tacked on to existing criminal law, thereby adding to the government’s regulatory arsenal.4

For forty years, the new regulatory regime enabled local government officials simply to prohibit public assemblies they found objectionable. Even today, permit requirements continue to enable the government to shape the contours of public assembly, including public protest.

II. Lessons for Today

The history of this regulatory transformation challenges two core contemporary assumptions about American politics. We tend to assume today—not only in the legal academy—that the political process must necessarily be structured by law. We (especially those of us in the legal academy) also tend to conceptualize democratic politics narrowly as elections, focusing exclusively on voting, political parties, and money.

This history challenges those assumptions by showing that there have been extended periods in American history when political practices were far more autonomous from existing legal institutions than they are today. It also highlights that the state must have control of the ground rules of politics before existing officeholders can use law to entrench themselves.

No doubt many will question how significant this challenge is. The combination of population growth and the expansion of suffrage in the twentieth century make it hard to imagine how contemporary American democracy could function without systematic regulation. More importantly, elaborate and specific formal legal rules guarantee a modicum of political equality for everyone. Efficiency, in other words, is not the primary value of legalization; the legalization of democracy has had normative benefits.

To these skeptics, I make two points. First, we must remember that formal law is not a per se guarantee of political equality; all depends on substance and historical context. The regulatory transformation discussed in my Article took place at least thirty years prior to the Court’s voting rights revolution and the 1965 Voting Rights Act. During this notoriously exclusionary period, political inequality was entrenched through many of the very laws discussed in the full Article (including literacy tests, poll taxes, voter registration rules, and permit requirements for public assemblies). If history teaches us anything, it is that law can just as easily entrench inequality as protect equality. In fact, it was normative concerns about legally entrenched political inequality that finally persuaded the Supreme Court to enter the political thicket in 1962.

Still, equality is more difficult to guarantee when legal regulation is sporadic and social regulation predominant. This leads me to a second point. Whatever the merits of legal regulation of politics may be, it would be folly to ignore the fact that entrenchment is only possible when law structures the processes of representation. In other words, legal regulation of politics is what allows government officials to define the polity in their own image and according to their own interests. The historical periods discussed in this essay were exclusionary. During those times, violence on the part of citizens and the state was tolerated in ways that it is not today. That should not, however, lead one to chafe at the suggestion that there were also costs to legalization—costs, in particular, to the autonomy of the people.

The central normative question is whether, once the costs are made visible, there are ways to preserve the norm of equality while scaling back regulations that distort politics by protecting incumbents or by undermining the fluidity and vibrancy of democratic practices.

Before we can engage in that inquiry, however, we will need a better understanding of contemporary American political practice. Democracy and elections are not synonymous. This is perhaps this history’s most significant payoff for today. A vivid account of nineteenth-century democracy provides a reminder that the core of democracy is self-governance.

Even today, elections, while critical to democracy, do not cover the whole range of practices of self-governance. Government itself has changed. Political groups no longer seek only to influence the legislative agenda; they spend at least as much time trying to influence administrative agencies and courts. In those contexts, their efforts to influence government take more- and less-formal forms. While elections and political parties are pervasively regulated by law, the administrative state’s notice and comment procedures are much more analogous to the nineteenth-century petitioning process.

Moreover, associations, both formal and informal, are extremely important to our self-governance. Churches and parent-teacher associations—as much as public interest organizations and political action groups—are the heart of political mobilization. Such associational groups come in a variety of forms with various purposes (political, religious, social, service-oriented, and hybrid), various levels of formality, and various relationships to law. Increasingly, these associations operate both in person and virtually through social networking sites.

Finally, the political activities of individuals and groups are wide-ranging. The people certainly donate to campaigns, endorse candidates, and get out the vote, but they do much more. They lobby legislatures and petition administrative agencies. They litigate. They assemble in person—but also, and possibly more frequently, online. They blog and tweet, and the more sophisticated of them work hard to create “spin.”5 Political groups today are quite conscious of the importance of cultural politics: The belief that Hollywood is at least as important as Washington is widespread.

A full catalogue and analysis of contemporary American political practice is obviously a future project. This brief musing, however, suggests that the repertoire of contemporary American political practices is richer than legal scholars who write about American democracy would have us believe. For instance, while the republican jury has been lost, public interest litigation has become a prominent way for the people to shape law, including constitutional law, and to influence politics.

In sum, institutional practices and legal rules governing democratic politics change over time. The nature and quality of political practice and democratic participation depend on institutional structures, but the relative autonomy of the democratic public sphere from the state depends on the degree to which the institutions that structure politics are legal institutions. Even today, we may need to look beyond legal rules and legal institutions if we wish to foster an autonomous and vibrant participatory democracy.

Conclusion

As we consider where deregulation might be appropriate to encourage accountability as well as fluid and vibrant political participation, we must move discussions regarding the law of democracy beyond their limited focus on elections and their component parts. We must work the more participatory political practices—from community organizing, whether traditional or internet-based, to public interest litigation on both the left and right—into our analyses and our normative programs for contemporary American politics.

Acknowledgments:

Copyright © 2011 New York University Law Review.

Tabatha Abu El-Haj is an Assistant Professor of Law at Drexel University, Earle Mack School of Law.

This Legal Workshop Editorial is based on the following Law Review Article: Tabatha Abu El-Haj, Changing the People: Legal Regulation and American Democracy, 86 N.Y.U. L. REV. 1 (2011).

  1. One way to conceptualize the difference is by analogy to the difference between a pure free market and today’s economic markets that are regulated by statutory and administrative law. The nineteenth-century free market was not free: The law of contract and tort, not to mention criminal fraud, obviously structured the free market. Nevertheless, it is equally obvious that the difference between market regulation in the nineteenth century and today’s mode of government regulation is significant.
  2. Adam Winkler, Voters’ Rights and Parties’ Wrongs: Early Political Party Regulation in the State Courts, 1886–1915, 100 COLUM. L. REV. 873, 876 (2000).
  3. Id.
  4. The continued value of an expanded regulatory arsenal to municipalities is evident today. Cf. Naomi Wolf, How I was Arrested at Occupy Wall Street, GUARDIAN (Oct. 19, 2011, 12:05 PM), http://www.guardian.co.uk/commentisfree/cifamerica/2011/oct/19/naomi-wolf-arrest-occupy-wall-street (implying that Wolf’s arrest on a New York City sidewalk was for disturbing the peace).
  5. The concept of “spin” is particularly fascinating. No doubt, American political groups have always used the media to great effect. Nevertheless, in our postmodern world political groups are much more self-conscious about affecting the media’s “spin.” My focus on “spin” as opposed to the media in general is an effort to address the fact that introducing the media into any catalogue of contemporary political practices creates line-drawing and definitional problems. What is political action? When does social action turn into political action? Not all media reporting or activity properly can be described as political, so how does one draw the line? These questions, however, do not seem to me to be reasons to forgo the enterprise of understanding either American democracy as it actually operates or the law’s role in it.

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