Symposium | The Democracy Constitution

Dissent: Not Popular Enough

By Robert L. Tsai

Tagged ConstitutionDemocracy Constitution

The draft constitution does a nice job of reducing existing institutional obstacles to effective government. Yet there is one persistent manner in which the draft repeats the Framers’ error and, indeed, doubles down on it: by replicating the elitist part of the republican tradition at the expense of the plebeian one. In that sense, the proposal doesn’t do nearly enough to rebuild the frayed bonds between citizen and government. More effective policymaking is the technocrat’s solution, but multiple methods of exercising power is the populist’s response to a metastasizing sense of dislocation.

Despite their cries of popular sovereignty to justify revolution and the authorship of their own Constitution, members of the Founding generation were suspicious of democracy, and frightened by what the poor and others deemed unsuitable for self-governance might do with a little power. So they devised a system of indirect representation and defended it as the only means to manage a large republic. That momentous choice not only tilted the odds in favor of a class of patricians maintaining influence, but also ensured that most Americans would remain passive and unseen. Making so much of good government depend on indirect representation also rendered it child’s play for forces hostile to democracy and equality to negate a wide range of policies and principles merely by restricting access to the ballot. He who controls elections can control it all.

The organizing principle that government works best when the people remain out of sight—as much as that of the necessity of overlapping checks—has helped form a citizenry that, generation after generation, doubts its capacity to make a difference through the science of politics and remains perpetually suspicious of the motives of the officials who are elected. Little wonder, then, that Americans must take to the streets to remind government officials who is in charge. The regularity of mass protests and street brawls today should not be romanticized as signs that the system is working. People’s hunger for influence, recognition, and community finds other, sometimes more destructive, outlets when constructive solutions are unavailable.

Even if we afford Congress all the power in the world, there is no guarantee that voters’ needs will be met. Elected representatives remain subject to the same collective action problems and partisan pathologies that stall effective governance. If corruption, party polarization, and rampant inequality are infecting the lifeblood of American politics, then the cure is to give regular citizens a bigger set of tools for circumventing gridlock and self-interest.

One potent solution would be to permit citizens to initiate the making of law through referendum, which would bring us closer to countries like Switzerland, Hungary, Iceland, Croatia, Latvia, Sweden, and Italy. In several countries, treaties are not valid unless supported by referendum. Such citizen-inspired laws could be revisable by Congress and would be subject to review by the federal courts. But imagine, for a moment, a mechanism for voters to insist upon universal health care or interdict President Trump’s Muslim travel ban or demand the end of a military conflict, and we are just scratching the surface of what’s possible through direct democracy.

Another idea is to formalize a popular veto of Supreme Court decisions, which would channel mobilization away from judicial nominations and litigation as ways of entrenching partisan influence or freezing rights. Such a mechanism would permit voters themselves to check outlier decisions, such as Citizens United, which gave corporations “free speech” rights to escape campaign finance restrictions, or to overturn Shelby County, which gut the potent preclearance provision of the Voting Rights Act and cleared the way for a host of suppression methods. The mere possibility that their judgment could be overturned would also force overly ambitious judges to think twice before eliminating rights that people have come to depend upon, such as reproductive choice or same-sex marriage. Such structural methods would be far more effective in ensuring judicial modesty than any interpretive methodology or rule that depends on judges restraining themselves.

Although some ideas were discussed that would have required regular review and revision of the Constitution, none made it into the final draft. The proposed constitution gives a citizen-assembly a role in proposing constitutional amendments, but the citizens themselves are not empowered to make binding changes through referendum. This resistance to direct democracy is unfortunate. Giving the people a formal place to debate proposed constitutional reforms is a small step in the right direction, though its potential is blunted by requiring that one third of the assembly be composed of existing legislators. I fear this will ensure that the citizen process is easily dominated by elected officials and their own agendas.

Because of this missed opportunity to increase civic participation in bold ways, I dissent in part.

From the Symposium

The Democracy Constitution


Dissent: What Happened to the States?

By Ronald J. Krotoszynski, Jr.


See All

Read more about ConstitutionDemocracy Constitution

Robert L. Tsai is a professor of Law at Boston University School of Law.

Click to

View Comments

blog comments powered by Disqus