Friday, June 04, 2010

Election Law's Imperial Aims

Heather K. Gerken

Scholars can be a bit tribal. We all specialize, and when you specialize, you end up talking to the same people about the same kinds of problems for a good, long while. Fields thus tend to be united not just by a subject area, but by a sensibility – a shared sense of what counts as an interesting problem and a promising solution.

I just posted a short piece on SSRN about the relationship between the sensibilities of the two tribes of which I am a member -- election law and constitutional law. I offer a tongue-in-cheek history of election law's development as it moved from a faraway outpost of constitutional law to an independent field in its own right. The notion of election law's exceptionalism has by now become conventional wisdom among scholars in the field, as most agree that constitutional law cannot be applied witlessly to the domain of elections. If scholars are divided between lumpers and splitters -- those who see connections across subject areas and those who think contextual differences matter most -- then we have written about the relationship between election law and constitutional law largely in the cadence of the splitter.

In the paper, I call for a bit more lumping. While election law is exceptional, portions of constitutional law are exceptional as well. There may be more opportunities for intellectual arbitrage than people have typically imagined. For this reason, I think that election law scholars ought to have imperial aims. They should do more than declare their independence from constitutional law; they should colonize it. There are lessons to be drawn from election law, sensibilities that permeate the field that are not as prevalent elsewhere, a distinctive perspective that might help reframe conventional constitutional law debates. The paper thus charts some of the ways in which we might translate election law’s insights into the domain of constitutional law.

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