The paper is forthcoming in the Howard Law Journal.


Justice Marshall’s career reveals his commitment to the objective that all people, regardless of their race, ethnicity or economic class, should have an equal opportunity to participate in the political process. His view of participation emphasized not just its instrumental value, but also Marshall’s belief that participation is intrinsically valuable to participants and the larger society. He saw the foremost constitutional principle as equality; and he viewed participation in politics as a related principle that “recognizes the moral worth of each individual, and in this way shows again that all persons are equal.” The Justice also understood that entrenched interests within the parties and elsewhere would use every weapon to keep new voices from being heard and would resist expanded public involvement in the political process. Justice Marshall knew concretely and personally that without those new voices in politics and without that broad participation in elections and governance, lasting and profound change in a democracy is impossible. Because so much of Justice Marshall’s legacy as a litigator and jurist lies in the realm of the fight for civil rights, scholars and biographers have usually dealt with these political process issues as they relate to the struggle in the courts and legislatures for equal rights, particularly for racial minorities. However, Marshall’s jurisprudence includes several important opinions concerning political parties and campaign finance regulations that are not explicitly focused on race. This article focuses on those opinions. In Part I, I discuss the passages of Justice Marshall’s opinions that reveal his view of the role of minor parties and other forces in ensuring that new perspectives and outsider views influence the political agenda. The key cases here are those describing the importance of minor parties in the American political process, but Marshall also sounds these themes in cases dealing with residency requirements in voting registration laws as well as in a dissent in a case involving felon disenfranchisement. Of course, new voices must have access to the political process to effect change, and Marshall’s commitment to equality of opportunity to take part in politics can be seen in the cases to which I turn in Part II: the campaign finance cases. Austin v. Michigan Chamber of commerce is his most significant campaign finance opinion, but his egalitarian approach shapes other opinions, including his concurrence in part and dissent in part in Buckley v. Valeo. Austin is best understood as vindicating the principle of equality of political opportunity even though, to maintain his majority, Marshall disguised egalitarian arguments in the garb of corruption. Finally, in Part III, I discuss aspects of Marshall’s jurisprudential approach that demonstrate his awareness that entrenched players, particularly those in the legislature and at the helm of the major parties, will resist these new voices and seek to manipulate institutions to protect the status quo. He viewed the independent judiciary as a way to ensure that the political branches are not allowed to adopt laws and institutions that shut out those with dissenting perspectives. His distrust of some actions of the major parties was balanced, however, by an appreciation of the role they play in structuring political discourse and helping voters cast votes that reflect their priorities.


Constitutional Law | Law and Politics | Legislation

Date of this Version

September 2008