Forthcoming ___ Rutgers L. Rev. ___ (2009); full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1376593
The empirical political science relating to the survival of republican government has not made it into constitutional law. Although specific protections in the Constitution are often hailed as essential for democratic society, the broader issue of what may be necessary to protect American democracy has received little attention, either in the context of the republican government clause or elsewhere.
Political scientists are posing a particularly strong challenge to constitutional law because one of the strongest conclusions to emerge from their study of the breakdown of democratic government has been the importance of a reasonably egalitarian society, with a reasonable division of resources among the population.
For constitutional law the first problem is whether such research is even relevant to constitutional analysis. Even if it is, it runs directly counter to the insistence on judicial restraint in economic matters that has dominated much constitutional thinking since early in the twentieth century. Although the Rehnquist Court reinvigorated some protections for the accumulation of wealth, the thrust of the empirical findings is to protect the distribution of wealth and not merely its accumulation.
This article addresses those issues and argues, contrary to the dominant paradigm, that constitutional law should incorporate those empirical findings.