This article is one of those pieces that reminds us that there are powers lying fallow in the plain language of laws the meaning of which is a blank canvas on which we have never dared to write. One of them is Section 5 of the 14th Amendment which gives Congress the power to enforce it by "appropriate legislation". That phrase both empowers and limits the judiciary. It limits the judiciary's devices like "strict scrutiny' and empowers the Congress to what it deems appropriate to accomplish the purposes of the 14th Amendment which surely was to uplift the victims of slavery.
Similarly Nicholas Stephanopoulos reads with open eyes Article I, Section 5 of the Constitution, which empowers "each House" of Congress to be “the Judge of the Elections . . . of its own Members.” Together with the Guarantee Clause - Article IV, Section 4 which provides "The United States shall guarantee to every State in this Union a Republican Form of Government".
These two powers - which are lodged in the Congress and the Executive - could be employed to bar the seating of Members chosen by flawed methods such as gerrymandered districts which deprive citizens of their vote's value by isolating them in Districts drawn on party lines. [OTOH see Powell v. McCormack, 395 U.S. 486 (1969)]
Similarly the President could use the powers of office to block electoral abuses such as restrictions on the right to vote.
- GWC
This article is a part of the 2020 Jorde Symposium. The other three pieces are linked below:
The New Countermajoritarian Difficulty
Countering the Real Countermajoritarian Difficulty
The Real Enemies of Democracy
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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