The Tyranny of the Majority.

WHAT IS most remarkable about this book--a collection of scholarly writings by the woman nominated and un-nominated last year by President Clinton to be his chief civil-rights enforcer--is not its preference for group voting rights over individual voting rights, its rejection of geographically based legislative representation for race-based representation, its assertion that minorities are entitled to proportionate legislative as well as electoral results, or even its general lack of comfort with majority rule as an organizing principle of society. Rather, it is that these writings purport to set forth an interpretation of a statute enacted by the Congress of the United States. Miss Guiuier's approach has been "mandated by the Congress."

In adopting the 1982 amendments to the Voting Rights Act, members of Congress gave little thought to high questions of political philosophy and democratic legitimacy. Most perceived that they were doing little more than extending the life of a civil-rights statute that had dismantled unfair barriers in the South against black citizens to the registration and voting processes.

What emerged, however, from a compromise between civil-rights litigators, including Miss Guinier, and Republicans, including principally Senator Dole, was legislation that transformed the Voting Rights Act and is now transforming the notion of political community in the United States. The new Voting Rights Act was the first civil-rights law to expressly provide for a "protected class" of American citizens, the first to endorse the idea that civil rights were grounded in group rather than individual entitlements, the first explicitly to focus upon equality of results rather than upon fairness of process, and the first in which coherent legal standards were replaced by a standardless weighing of the "totality of circumstances" by the federal judiciary.

It is precisely this lack of standards that enables Miss Guinier, a leading voting-rights litigator, to argue, as she does here, that the VRA's generalities about the "equal opportunity to participate in the electoral process and to elect representatives of choice" cannot be fully realized short of her political prescriptions. She is correct that there is no "core value" in the Act, only an irreconcilable tension between equality of opportunity and equality of results. The VRA as amended is not a law as traditionally understood; rather, it is a political platform.

To understand Miss Guinier's interpretation of Congress's handiwork, one must understand the stages of development of the Voting Rights Act. From its original enactment in 1965 until its amendment in 1982, the Act was focused upon actual barriers to the physical exercise of the franchise questionable literacy tests, unequally situated polling places, and registration hours that varied by neighborhoods.

Following enactment of the 1982 amendments, the Act's focus initially shifted to electoral mechanisms, such as at-large systems of voting and multi-member districts, which were sometimes designed for the purpose (and often had the effect) of denying even substantial minority communities the opportunity to elect their preferred representatives to city councils and county commissions. Voting-rights litigators successfully argued that such mechanisms "diluted" the collective impact of the black vote.

More recently, the emphasis of voting-rights litigators has shifted again, this time to state districting plans that fail to guarantee black voters proportional representation in terms of the number of "majority minority" districts. While such proportional representation is expressly rejected by the law, the Act's emphasis upon results has made it inevitable that many courts have looked to proportional-representation levels as a starting "benchmark" for analysis.

Miss Guinier would have votingrights litigators move toward the next logical stage of strategy. From what she characterizes as a "black nationalist" perspective, she identifies two principal shortcomings with current approaches to the Voting Rights Act. First, she argues that proportional electoral power should not be viewed as the ultimate focus of the Act. Rather, it should be proportional legislative power. "Effective representation is not just the process of re-election; it is the policy-centered process of governing responsibility." She finds it paradoxical that "by winning, blacks ultimately lose . . . as soon as they achieve one electoral success, the focus of the discrimination shifts to the legislative arena," where Miss Guinier makes dear black representatives face "majority tyranny" everywhere.

Characterizing black political interests as principally "redistributive," Miss Guinier's "remedial paradigm" holds that the Voting Rights Act should be understood to apply to internal legislative processes and decisionmaking norms as well as to the electoral process itself. That is, that the Department of Justice and the federal judiciary should be further empowered to review or "pre-clear" these matters and determine which are conducive to an "equal opportunity to participate" by blacks. Those which are not would be voided under the Voting Rights Act.

Miss Guinier provides no detail on how all of this would be achieved but does write tantalizingly about weighted voting of white and black representatives, mandatory rotation of representatives in office, racial minority vetoes ("jury deliberation model"), and the discouragment of legislatures voting up and down on individual measures as opposed to aggregating them together so that measures important to majorities and minorities can be linked. A vision emerges of "equal protection of the laws" as legislative back-scratching and $1.5-trillion continuing appropriation bills.

While Miss Guinier argues that every group has a "right to have its interests satisfied a fair proportion of the time," she assures the reader that she is interested in process, not in the specific outcome of public-policy debates. However, the defeat of elements of the black political agenda in state legislative bodies is already regularly viewed by voting-rights litigators (including Miss Guinier) as evidence of a lack of responsiveness to black interests and justification for racially gerrymandered districting plans. Indeed, Miss Guinier argues here that "prejudice could be inferred from the presence of a majoritarian bloc that consistently exercises disproportionate power to exclude dissenting viewpoints associated with economically disadvantaged, socially isolated, and physically or culturally identifiable numerical minorities."

Within six months of a federal judge adopting her "proportional power" theories, Miss Guinier doubtless would be writing erudite articles in Ivy League law journals about how budget-cutting efforts in Michigan or welfare reform in Wisconsin or school-choice plans in Illinois constitute circumstantial evidence  of discriminatory legislative processes in those states, warranting federal judicial intervention.

Miss Guinier, rather than being uninterested in the outcomes of publicpolicy debates, is preoccupied by them. Her political philosophy is a result-oriented one, aimed at enhancing the political influence of "authentic" black interests, not the kind of "diluted" black interests which she views as emerging whenever minority groups have to take part in political coalitions. Although a decade ago she opposed at-large districts as detrimental to black interests, the theory she sets forth in this book urges their restoration for the same reason. Although she clearly prefers judicial review to majority rule, she also believes that where the judiciary is controlled by "political renegades," i.e., Reagan-appointed judges, term limits should be placed upon the judiciary.

Miss Guinier identifies as the second shortcoming of current votingrights strategy its failure to confront directly the geographical basis of current legislative representation plans. She would prefer to base representation on interest (racial) group lines through a system of cumulative voting in which votes are cast along at-large lines and each voter is allowed to cast the same number of votes as there are positions to be elected, Voters could cast them all for a few candidates (as Miss Guinier presumes blacks would do for black candidates) or else disperse them among a larger number of candidates.

Although Miss Guinier does not quite put it in these terms, such a system would be a far more efficient way of achieving permanent proportional representation for blacks than the present system which involves messy fights over racially gerrymandered districts and in which proportional representation is still difficult to achieve because there are blacks who go unrepresented (by other blacks) because they live outside areas from which single-member "majority minority" districts can be patched together. Instead, voting-rights litigators today must (and do) resort to arguments for "majority minority" districts in excess of proportional representation in areas of black population in order to "compensate" for black voters who live outside of these areas and must accept the "virtual representation" of white representatives.

In his foreword, Yale Law Professor Stephen Carter describes as "fantasy" the idea that there is any national interest left among Americans, as opposed to merely an aggregation of self-interests. In this "vision... which has nothing to do with today's America ... we are united in a common enterprise and governed by common consent . . . we are people of good will, aiming at a fairer society which we will achieve through the actions of our essentially fair institutions." Lani Guinier is an able and articulate spokesman for those who agree with Professor Carter that this vision of America is a "fantasy."

Mr. Markman, an assistant attorney general for legal policy under President Reagan, is an NR contributing editor and an attorney with the Detroit law firm of Miller, Canfield, Paddock, and Stone.