“The New Pro-Majoritarian Powers”

I just posted this short article, forthcoming in the California Law Review, on SSRN. It’s a response to Pam Karlan’s Jorde Lecture, “The New Countermajoritarian Difficulty,” whose theme is the array of forces — both judicial and otherwise — that often stifle the will of popular majorities. I largely agree with Karlan’s diagnosis. In the piece, I discuss a pair of non-legislative powers with significant potential to push American politics in a more majoritarian direction. These are (1) each congressional chamber’s authority to judge its members’ elections, and (2) the President’s authority to enforce the Guarantee Clause. Crucially, these powers are subject to neither the Senate filibuster nor judicial review — and so are available even if legislative reform along the lines of H.R. 1 can’t pass or is struck down by the courts. Here’s the abstract:

In her Jorde Lecture, Pam Karlan paints a grim picture of American democracy under siege. Together, the malapportioned Senate, the obsolete Electoral College, rampant voter suppression and gerrymandering, and a Supreme Court happy to greenlight these practices, threaten the very notion of majority rule. I share Karlan’s bleak assessment. I’m also skeptical that conventional tools—judicial decisions and congressional statutes—will solve our current problems. So in this response, I explore a pair of less familiar but possibly more potent alternatives: the authority of each chamber of Congress to judge its members’ elections, and presidential enforcement of the Guarantee Clause. These powers are explicitly delineated by the Constitution. They can’t be stymied by either the Senate’s filibuster or the Court’s hostility. And they hold enormous democratic potential, especially if channeled through the procedures I outline.


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