http://lapa.princeton.edu/content/heather-gerken-yale-law-school

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America lacks an institutional structure for allowing minorities to take part in governance. We’ve found our own way to build loyalty while licensing opposition, but it’s been a rights-based strategy, not an institutional one:  we ensure that “opponents” can influence the debate and take part in contested decision-making through the First and Fifteenth Amendments. These constitutional rights are cast as the means for achieving racial and political integration, and diversity has become its measure.  The story isn’t just wrong, but it’s also not nearly as attractive a tale as we make it out to be. An unduly narrow focus on rights -- combined with some genuinely ugly history -- has led us to endorse a thin, even anemic vision of integration. And it’s led us to adopt a measure of democratic legitimacy that involves relatively little power for those it’s supposed to empower.

The paper is available at:  http://www.yalelawjournal.org/essay/the-loyal-opposition

Heather Gerken specializes in election law and constitutional law.  She has published in the Harvard Law Review, the Yale Law Journal, the Stanford Law Review, Michigan Law Review, Columbia Law Review, Political Theory, Political Science Quarterly, Roll Call, Legal Affairs, Legal Times, The New Republic, Democracy Journal, and elsewhere. Gerken has served as a commentator for a number of media outlets, including The New York Times, The New Yorker, the Los Angeles Times, the Chicago Tribune, the Boston Globe, NPR, the Lehrer News Hour, Bill Moyers, CNN, MSNBC, and NBC News. Her most recent scholarship explores questions of election reform, federalism, diversity, and dissent. Her work has been featured in The Atlantic’s “Ideas of the Year” section, the Ideas Section of the Boston Globe, and NPR’s “On the Media.”  It has also been the subject of three academic symposia.