What is the function of judicial review? By the stated lights of Article III (“cases” and “controversies”),1U.S. Const. art. III, § 2. to individual judges resolving cases, and to litigants asserting they have suffered an injustice, courts must fairly resolve particular disputes. Yet thanks to the wide-ranging consequences of common law decision-making and the hunger of ambitious law professors to advance novel and transformative scholarly claims, doctrine tends to be evaluated by its purported systemic effects. In election law—which explicitly bears on terms of collective participation—this contrast is especially sharp. Yet contemporary election law scholarship so thoroughly emphasizes systemic accounts that it neglects the foundation of legitimate collective self-governance: the participation and consent of individuals in politics.
The Law of Freedom aspires to return attention to this foundation. Professor Yunsieg Kim’s wonderfully insightful review draws out this point while clearing the path for the challenging but urgent analysis that future jurisprudence and scholarship must undertake. Reconciling judge-made law and constituent autonomy is an endeavor of intimidating analytic and normative complexity. An “operationally useful framework”2Yunsieg P. Kim, Liberty Before Party: The Courts as Transpartisan Defenders of Freedom, 98 S. Cal. L. Rev. Postscript 74, 92 (2025). will require courts to engage with how personal autonomy is translated into valid collective action through representation, all while diligently respecting the norms of rule of law that ameliorate the counterpopular dilemma.
