Later today or next week, the Court in the Arizona redistricting-commission case will issue one of its more important decisions on “the law of democracy.” To provide context for that decision, it’s useful to see two paradoxes the case illustrates about the American Constitution’s status as the most enduring Constitution in the world. The very success of the American Constitution, ironically, can make it more difficult to address today’s democratic problems.
Unlike most modern Constitutions, such as those created after 1945, the American Constitution does not create any specific institutions designed to oversee in relatively impartial ways the ground-rules of democracy itself. As the world gained more experience with constitutional democracy, the risk that those who currently hold power will try to manipulate the ground-rules of democracy to entrench themselves and their partisan allies in power became more apparent. In response, modern Constitutions typically create one or more institutions, designed to be at some remove from the routine forces of partisan politics, to set and protect the ground-rules of democratic politics itself. These institutions include, for example, specialized “Electoral Courts” to regulate the election process and resolve disputed elections; they also include entities like “Independent Boundary Commissions” to design election districts and similar administrative or quasi-judicial institutions. These more recent constitutional democracies recognize the need to take out of the hands of existing officeholders the power to control the legal rules under which they and their rivals compete for political power. Nearly all countries that use election districts now use some sort of independent commission to draw those districts (the UK is a mixed, more complex story).
But at the time the American Constitution was written, there was no discussion or debate or even any recognition of the possibility of creating these kinds of institutions to play a role in ensuring a well-functioning democratic system. The Framers were not naïve about the risk that officeholders would try to aggrandize their own power; but they didn’t have in their mental toolbox the possibility of the kind of specialized, relatively independent institutions that later emerged for tasks like drawing election districts or regulating other aspects of the democratic process. So state legislatures were given the power to set the rules for national as well as state elections – including deciding how to draw the lines for election districts, how to structure primary elections for the House and Senate (once we had such elections), and how to regulate all other aspects of elections. The Framers thought a disinterested Congress would police against abuses of these powers; that’s why the Constitution gives Congress the power (in the Art. I Sec. 4 Elections Clause) to override these rules for national elections. But the Framers also didn’t recognize that political parties would form that would link partisan allies in Congress and the state legislatures. So Congress rarely disturbs state power, even on national elections. As a result, we have ended up with a system in which the most self-interested actors – incumbent officeholders – have the power to write the rules for elections, including the design of their own election districts. In other words, because our system was created before there was awareness of the possibility of, and need for, less directly partisan institutions to oversee the ground-rules of democracy, we got started with state legislatures doing this and have found it extremely hard to change this entrenched system ever since.
The failure of this system is what led the Supreme Court eventually to step in and create the “one-vote, one-person” doctrine. Through constitutional law, the Court address the massive population inequalities between election districts that existed by the 1960s. State legislatures, elected under this system, saw no reason to change it; Congress, also elected under this system and tied through partisan links to the state legislatures, also saw no need to change it. So the Court turned itself into one of the only relatively-more impartial institutions our system has available for ensuring fair ground-rules of democratic elections. But the Court cannot play this role comprehensively and systematically. In the context of designing election districts, the Court has found it too difficult to come up with standards courts are comfortable enforcing for determining what a “fair” system of designing districts means, beyond one-vote, one-person.
That brings me to the second paradox at the heart of the Arizona case. One of the few effective ways to bypass the self-interested motivations of legislators writing their own election rules is through the voter initiative process, in those states that have it. Direct democracy is controversial, partly because majorities can too easily override minority rights, but the single most compelling context for direct democracy is precisely the way it was used by the people in Arizona: as a check on the self-interested temptations of power when legislators are regulating the political process itself. But the text of the Constitution gives this power to the state “legislatures.” When the Framers assigned this power to the “legislatures,” did that reflect an original understanding that this power could not be exercised directly by voters, through the kind of direct democracy process used in Arizona? But again, precisely because of the age of the Constitution, no one was thinking about this kind of question at the time the text was written to give state “legislatures” this power. The idea of statewide voter initiative processes – let alone the idea of independent commissions – to regulate the election process was not on the table or in the mind of anyone. “Legislature” had meaning by contrast to “executive” or “judicial.” But “legislature” was not meant to be rule out, or stand in contrast to, “popular processes of direct democracy” because no one was suggesting the latter as a means of regulating elections.
For that reason, my hope is that the Court will uphold the power of voters to change their state constitutions to take the power to regulate the design of congressional districts, and other aspects of national elections, out of the hands of self-interested state legislatures and put that power in properly-designed commissions. But I want to admit that the interpretive question here – can “legislature” include voter initiatives – is much harder than the interpretive question in King v. Burwell, the recent health-care decision. The most difficult question at the oral argument came from Justice Kennedy, who pointed out that the original Constitution gave state “legislatures” the power to choose Senators. Could the voters of Arizona or elsewhere have used a voter initiative to decide that direct popular election of Senators would be a better system – even before the 17th Amendment was adopted? The answer to that question is no – and the reason is that in this context, the Framers were well aware of the option of direct election. When the text used “legislature” in assigning the power to select Senators, “legislature” in that context was used in contrast to popular election and was designed to rule that latter option out. But “legislature” was not chosen for the purpose of ruling out popular regulation of the election process, once that option became feasible.
So to uphold direct democracy as a constitutionally permissible tool for regulating national elections, the Court would have to recognize that when the Constitution uses “legislature,” it does not permit popular election of Senators but it does permit popular regulation of the processes of elections. The oral argument did not make it seem promising that a majority would accept that conclusion. But either way, if the Constitution had not been written at the dawn of constitutional democracy, we probably would have independent institutions for essential democratic tasks, like the drawing of election districts, and we would also have made an actual decision as to whether only “legislatures” should have this power or whether the people of the States could choose to give this power to less directly self-interested actors. If the Court holds the Arizona commission unconstitutional, the irony will be that (1) we will be much less likely to have the kinds of institutions to oversee democracy that most other, more recent democracies have – even though in the age of the Framers, these institutional innovations were not considered at all; and (2) the word “legislature” will oust the voters in any states from using direct democracy to regulate national elections – even though in the age of the Framers, “legislature” was not chosen or designed to preclude direct-democratic regulation of the election process.