Workshop on Ahmed’s “The Two Faces of Representation”

Ashraf Ahmed, The Two Faces of Representation.

Solum’s Download of the Week for October 10, 2025. Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5122328.

This is a synthetic academic workshop generated using enTalkenator (Workshop Hot Bench template, using Claude Sonnet 4.5).

Abstract: “In pluralistic democracies, representation is the process that mediates difference and translates the preferences of free and equal citizens into political will. Despite broad judicial and scholarly agreement that representation is central to election law, the Supreme Court is deeply ambivalent in how it treats the concept. This Article explains this ambivalence and shows its theoretical stakes for the field and public law more generally. It argues that the Court’s approach to representation is Janus-faced. Its first face, which it terms the ‘skeptical tradition’ is decidedly anti-theoretical. Largely confined to the Fourteenth Amendment, the skeptical tradition counsels the Court against deciding cases that require theorizing representation for epistemic, institutional, and interpretive reasons. The Article then turns to the second face of representation where the Court, under the First Amendment, routinely theorizes core facets of representation. In cases regulating campaign finance and the associational rights of parties, the Court expounds on the formation of public opinion, the relative standing and efficacy of different speakers, the nature of representational failure, and the role of political parties. The two faces of representation thus reveal a deep disjuncture between the Court’s self-conception and its actual work.

Beyond its descriptive insight, this Article also makes a further theoretical claim: the skeptical tradition must be rejected on jurisprudential grounds. Taken to its extreme, the skeptical tradition threatens any judicial role in election law doctrine, since it would entail judicial abstention in any case that involved theorizing representation. By rejecting the skeptical tradition, this Article both shows how to preserve the jurisprudential integrity of election law doctrine and reaffirms in a more conceptually grounded way an enduring lesson of the field: the need for judges to theorize representation to decide election law cases. Regardless of doctrinal silos, election law is unified by its underlying object: political representation. The two faces offer two further lessons about public law. First, the case of representation is an example of a more general conceptual demand for a theory of the regulated object. When judges apply a general legal principle to a specific entity, whether it is an institution, individual, or process, they need some account of the object being regulated. Second, the conceptual demands of election law pose a problem for theories of judicial minimalism in constitutional law, especially for the notion of ‘incompletely theorized agreements.’ The two faces suggest that theoretical minimalism is both descriptively naïve, because it misses implicit theoretical work in the mine-run of cases, and normatively vulnerable, since conceptual shortfalls in election law—descriptive or normative—can be democratic deficits, insofar as election law seeks to constitute the democratic process. Ultimately, this Article suggests a theoretical reckoning is in order for election law doctrine.”