DEMOCRACY, COMMUNITY, AND FEDERALISM IN ELECTORAL APPORTIONMENT CASES: THE UNITED STATES, CANADA, AND AUSTRALIA IN COMPARATIVE PERSPECTIVE

Abstract

We speak often of ‘representative democracy’ and we tend to regard it as the dominant form of government in the modern West. But who or what is represented by the electoral systems of the modern democratic state? Although we may be tempted to regard contemporary democracies as embodying essentially the same underlying conceptions of representation, a careful examination of constitutional texts, legislative frameworks, and judicial interpretations reveals important differences from one country to the next. In particular, the problem of electoral apportionment has produced a line of constitutional cases in the United States, Canada, and Australia that raise very similar sets of issues, but with strikingly different results. This article compares the case law in the United States, Canada, and Australia on the question of electoral apportionment. While the ideas appealed to in each country are complex and contain sometimes overlapping elements, it is argued that they can be classified into three general types, which the article calls ‘individualist,’ ‘communitarian,’ and ‘federalist.’ Each approach presupposes a distinct conception of the political identity of the human person and has distinct implications for design of a democratic electoral system. And, while each conception finds a place in each of the three countries under examination, there is an important sense in which individualist conceptions have dominated much of the American jurisprudence, communal approaches have influenced most of the Canadian case law, and federalist conceptions have shaped the Australian cases at several decisive points. The article concludes by arguing that, although factors such as modalities of interpretation and conceptions of the relationship between the courts and the political branches of government have been important, significantly different underlying conceptions of democracy and of the political identity of the human person have been ultimately determinative of the results.