The scrambling of categories in this case illustrates a broader problem with the Court’s jurisprudence. Majority rule can lead to abuse of minorities, justifying judicial protection of minorities, but how do we ensure that the Court both protects the minorities who really need protection, and does so in a way that allows majority interests to prevail when they ought to? The Court’s answer, “trust us,” is increasingly out of place in an era of populist rejection of elite rule.

A democratic system for protecting the rights of minorities is desperately needed. We describe here a voting system that does just that — by allowing citizens to vote in proportion to the strength of their interests. It would be simultaneously more democratic and less vulnerable to the trampling of rights than the options currently on the table, and it would not involve elite interventions in politics through judicial review.

Although our proposal would require a radical change in the US voting system, and hence some people will dismiss it out of hand, we hope that it will at least challenge readers to produce their own solutions to the flaws of our current system that have been ignored for too long.

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