Review: Lani Guinier and the Dilemmas of American Democracy

Richard Briffault reviews The Tyranny of the Majority: Fundamental Fairness in Representative Democracy by Lani Guinier. He argues: "Guinier's effort to apply the Voting Rights Act to legislative voting rules, considered in Part III, is less successful. Her claim that her approach is a procedural reform, unconcerned with the substance of legislative outcomes, is not persuasive, and its implementation would risk a high degree of outside interference with the operations of legislatures. Nevertheless, her concern with the fairness of majority rule in a polarized legislature should not be summarily dismissed. As Guinier contends, the legitimacy of majority rule ultimately rests on the existence of an equal opportunity for all members of the electorate to be in the majority. If, due to a deep and lasting division between the majority and the minority, some members of the polity are effectively denied the opportunity ever to be in the majority, then majority rule can become majority tyranny. Thus, although Guinier's proposal is unsatisfactory, the problem she addresses is a central dilemma of democratic theory.