Symposium | The Democracy Constitution

Dissent: Still Problems With the House

By David S. Schwartz

Tagged ConstitutionDemocracy Constitution

There is much to like about this proposed constitution, and in many ways, I believe it improves on the one we have. I therefore vote to endorse it. I admire both the proposed bill of rights and the effort to democratize the structure of government. I agree with the reduction in the role of the Senate and increasing the power of the House of Representatives.

But because I believe that structure is more important than bills of rights when it comes to preserving democracy, I’m concerned that we may not have done quite enough to overcome the reality of a gerrymandered, minority-based House. Permitting states to switch to at-large elections may go some way in this regard, but states remain free to elect by districts. The drafters have faith that the proposed National Election Commission can or will suffice to prevent a minority-based, gerrymandered House. I’m not quite so sanguine about that, and I am also concerned that our constitution does not address gerrymandering of state legislative districts. I would have liked more structure and substantive direction given to the National Election Commission. On the one hand, the commission is given extraordinary and seemingly unchecked power. On the other hand—and somewhat paradoxically—while I believe that that commission is intended to have exclusive lawmaking power, the wording of that provision (“exclusive authority and jurisdiction”) is sufficiently ambiguous to permit the House or the courts to construe the commission as an administrative agency with exclusive authority to only enforce congressional legislation rather than operate entirely independently from Congress.

Given these concerns about the House, I disagree with the simple majority requirement to override a presidential veto. A key feature of having an independently elected President, chosen by a nationwide popular vote majority using ranked-choice voting, is to make the President a democratic “tribune of the people.” This principle seems to me to require a supermajority to override a veto, and I had urged 60 percent. It’s not clear to me why the group indulged this impulse toward a parliamentary system this far without taking the final step of replacing the President with a prime minister. I have doubts whether a parliamentary system is to be preferred over an independent presidency, but in any case, I find our hybrid puzzling: both undertheorized and its practical implications insufficiently worked out.

Finally, while I’m no fan of the extent of judicial review power under our current Constitution, I think the drafters went too far in disempowering the courts from addressing unconstitutional laws. The final draft does so in multiple ways, and any two of them would have sufficed for me.

Benjamin Franklin said at the close of the Constitutional Convention in 1787: “Thus I consent, Sir, to this Constitution because I expect no better, and because I am not sure, that it is not the best.” I endorse our proposed constitution with reservations, not because I expected no better, but because this one seems better than the current one and the best should not be the enemy of the good.

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David S. Schwartz is the Foley & Lardner-Bascom Professor of Law at the University of Wisconsin Law School.

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