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This essay is a response to Supreme Democracy: Bush v. Gore Redux, an essay by Lani Guinier (2002).

The author critiques Professor Lani Guinier’s essay through a discussion of the maldistribution of wealth in American society, which he argues is accepted by American people thanks to the existence complex structures that allow them to distance themselves from it. He discusses four legitimation structures as he critiques this essay.

Professor Guinier focuses on the belief in meritocracy. For our purposes, we might define a believer in meritocracy as someone who thinks that, in a given society, people get more or less what they deserve. Hence, if there are people in our society who are poor or hungry, powerless or on the streets, they are in these predicaments because of something that they did or failed to do. In short, they are there because they deserve to be there.

There is also a commitment to economic efficiency supports the status quo. Unlike believers in meritocracy, people who defend the efficiency hypothesis will sometimes concede that markets operate unfairly--that is, when they are willing to concede that the concept of fairness has any analytic content at all. They insist on the inevitability of market distributions on the ground that any effort to redistribute or regulate will result in a reduction in incentives and destruction of gains from trade, thereby making the total pie smaller.

Closely tied to the efficiency argument is the second elite legitimating structure--the rhetoric of impotence. Here, the claim is that economic maldistribution is a complex and difficult problem understood only by experts. According to this view, the absurd notion that what makes people poor is the absence of money, and that poverty might be alleviated by the provision of money, deserves nothing but contempt. Instead, it is claimed, the problem is tied to broad societal, economic, and cultural forces over which we have little or no control. Efforts to deal with it are bound to have unintended and counterproductive consequences, and people who think otherwise are unrepentant and unwashed radicals whose views are not worthy of serious consideration.

The last legitimation structure the author discusses is the belief in democracy. When democratic rhetoric is deployed to support the status quo, the claim is that the current distribution of power and wealth is justified because it is produced by a political process that is open to all. Thus, even if some people think that these outcomes are substantively unfair, it is nonetheless arrogant and elitist to insist that their substantive views should prevail. In a culture with widely divergent substantive views, the only fair way to resolve disputes is through democracy. Conversely, if a dispute has been resolved democratically, mere substantive disagreement with the outcome does not justify resistance.

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34 Loy. U. Chi. L.J. 77-88 (2002)