Max Stearns
[Dear Readers: What follows are the final remarks of the final lecture in Constitutional Law II, on November 17, 2022]
For many years I’ve ended both Constitutional I and II with a spiel. This semester, I started this course with one, in part to explain why, in contrast with thoughtful colleagues here and elsewhere, I chose to continue teaching the abortion cases, now including Jackson Women’s Health Org. v. Dobbs (2022), toward the end of the course. I considered leaving it at that and ending with our final cases, Citizens United v. FEC (2010) and McCutcheon v. FEC (2014), which I personally believe contributed to damaging our democracy. Even so, I think the greater challenges we face go beyond that and warrant reflection.
Just last week I mentioned that by attending law school each of you each of you will be joining an elite as members of our society with greater access to the levers of power and with a deeper understanding as to how our system of government works. Although it sounds cliché, knowledge is power, and you’re each becoming empowered by virtue of your course of study here.
But beyond being lawyers, you are citizens. And I’ve come to believe that understanding how our system works isn’t enough. What we really need for our democracy to survive and thrive is for a growing part of our electorate, especially those who are well educated, to appreciate how and why our system is failing. Indeed, that may be more important than appreciating when it succeeds. At some level, the 2022 midterm is a kind of success, with one of our two major parties controlling the House and the other the Senate. I think a genuine danger is thinking that the ubiquitous warning signs of a looming threat to our democracy have been overblown.
Regardless of which side of the aisle you favor, it’s vital to understand how problematic it is for the fate of so many aspects of our government and society to turn on a dime based on minuscule counting differences in near evenly divided communities, within a near evenly divided nation, in turn producing near evenly divided congressional chambers. A single county, district, or state should not have the leverage to throw the entire governmental apparatus in one direction or another, especially when our society is so deeply divided that a change in outcome leads large segments of the country to imagine that consequence an existential threat, entirely illegitimate, or both
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In the book I’m writing, Parliamentary America: The Least Radical Means of Radically Repairing Our Broken Democracy (forthcoming JHU Press 2024), I rely upon several childhood games and activities to make unfamiliar or nuanced concepts accessible. Here I’ll offer a simple story involving a birthday party. Imagine you have small children and your home is a happy destination for your children’s friends. You host New Year’s Eve sleepover one month prior to your daughter’s seventh birthday, and you use the opportunity to improve the upcoming party
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You ask the children, say 11, plus your daughter, so a total of 12, to choose the flavor of the cake, which you might buy or to make. No judgment here. Your choices: chocolate, vanilla, red velvet, or carrot. Imagine 5 vote chocolate, 4 vanilla, 2 red velvet, and 1 carrot, with the other 11 left wondering why their friend or you as parents would serve a vegetable as a birthday cake.
You might imagine these little girls feel strongly about it all, and so those wanting chocolate or vanilla begin pressuring the red velvet and carrot girls to go their way and tip the balance. A possible lesson is thinking you’d have been best off limiting your choices to two. You could do that by having the girls list their choices, in order, then dropping the flavors that get the least support, sequentially. First drop carrot, then red velvet, and then tally all rankings over the two flavors that remain: chocolate and vanilla.
Just imagine: A ranked-choice birthday party! What fun.
But picture this instead. Carrot girl raises her hand and says “I have an idea. How about cupcakes, with different flavors?” And the parents say, “why didn’t I think of that?” It turns out there’s a way to make everyone happier!
The Framers of the Constitution devised a system call first past the post because they were familiar with it, and they somehow imagined it possible to avoid factions, which really are precursors to parties. In middle school, and maybe even high school, you might have been told about a remarkable group of men who met in Philadelphia to fix the Articles of Confederation, but instead ditched it and wrote the Constitution. And you likely also were told that the Constitution’s brilliance is marked by the fact that comparing it with all other constitutions throughout the world, it has lasted the longest.
I’m now convinced it’s vital that our citizenry be told the counter narrative. Yes, our voting system has thrived longer than others throughout the world. And there are several reasons: geographical isolation, a steady and constant influx of immigrants, westward expansion (with tremendous pain imposed through the displacement of indigenous persons), and of course the profoundly tragic forced labor of chattel enslaved persons. This is all important to understand. To the extent we buy into American Exceptionalism, we need to recognize that it’s almost certainly in spite of, not because of, our constitutional design. This is especially so for our electoral system.
We can treat this counter narrative as a hypothesis. And there’s a way to test it: ask yourselves which systems have been widely replicated across the globe. Not ours! We’ve been very powerful in exporting democracy, just not our democracy. By contrast, other systems, those characterized by proportional representation and parliamentary selection, have been. Those systems are rather like the young girl recognizing there’s no need for all the children to enjoy, or suffer, a single flavor cake, or even to select between two flavors. The parents can make a better party for their daughter. And we can make a better democracy, with more and better parties for you, your children, and future generations.
For the first time in my lifetime, many serious proposals for constitutional reform are being bandied about. Some of the most popular proposals include rank choice voting (RCV), also known as instant runoff voting (IRV); eliminating the Electoral College in favor of the National Popular Vote; multimember congressional districts; eliminating or bypassing the Senate; enlarging the House; imposing term limits on members of Congress; imposing term limits on Supreme Court Justices, and more.
It's honestly hard to keep up. And here’s a secret: the loudest voices don’t always have the best ideas or the right tools to evaluate them. I can’t predict when we might hit the inflection point that will require making ultimate choices over the menu of proposals being floated. It might happen soon, or it might happen after I’m gone. There’s no way to know. What I can tell you is that the vast majority of proposals, including those I’ve mentioned, aren’t sufficient to end the constitutional crisis we face. And yes, proportional representation is part of the solution, but not the entire solution. The most popular proposals for infusing proportional representation are unlikely to succeed.
One way to think about this is to imagine the girls preferring different flavors as parties. Then ask how we can best harness their energies to improve other decisions they might make about the birthday celebration, or on grander scale, our government. And knowing a choice between chocolate and vanilla is too few options, we must also ask if it’s possible for a system to offer too many. Like in Goldilocks and the Three Bears, how do we get it just right?
A first step in constitutional reform is getting past the idea of American Exceptionalism. We must open our eyes to the simple fact that there are important things that other nations do far better. We must be open to reframing what the framers framed wrong.
I’m not going to explain the thesis of my own project on how to radically repair our broken democracy. I hope that even as our class ends, our conversations continue. My point for now is more specific. As future leaders, and as part of the elite, your job will be to help guide your communities in understanding proposals for constitutional reform, along with other ways to help create a better, less divisive, less winner-take-all world.
Of course, you shouldn’t be naïve. In politics there are always going to be winners and losers. That’s inevitable. What’s not inevitable is making everything zero-sum, with miniscule differences anywhere effecting dramatic wins and losses everywhere. There’s a reason our system hasn’t been replicated. And not just broadly. It hasn’t been replicated at all. We can and must be willing to learn from the experiences of others. And sometimes we have to listen to quieter voices. Like that little girl’s.
Thank you.
As always, comments are most welcome.