Can We Make the Constitution More Democratic?
George Mason University - Antonin Scalia Law School, Faculty
William & Mary Law School
Drake Law Review, Vol. 55, No. 4, pp. 971-1000, Summer 2007
George Mason Law & Economics Research Paper No. 07-28
Symposium on 'Our Undemocratic Constitution'
Recent years have seen renewed calls to revise the Constitution to make it more democratic. Unfortunately, efforts to "democratize" the Constitution face serious obstacles that advocates of reform have largely ignored. In particular, they have failed to grapple with the reality of widespread political ignorance, which both reduces the extent to which the Constitution can ever be fully democratic and makes the reform process more difficult.
Part I of this article notes that advocates of "democratizing" the Constitution rarely specify the theory of democratic participation they would like the Constitution to conform to. This is a very significant omission. There is more than one theory of participation and different theories have widely divergent implications for constitutional reform. Some theories such as "deliberative democracy," imply a much higher level of political knowledge in the electorate than is likely to be feasible in the foreseeable future.
In Part II we provide examples of how elected officials and interest groups employ pro-democracy rhetoric to cloak reform proposals. Examples include the 22nd Amendment, term limits and other Contract with America reform proposals, voter initiative and referendum, the constantly changing positions of leading political actors on the question of executive power, and battles over the composition of the federal courts. By highlighting the exploitation of political ignorance by elites, Part II suggests that substantive visions of democracy - as structured by political ignorance - have significantly affected constitutional debates throughout our history.
Part III considers the implications of political ignorance and substantive concerns for the actual process of constitutional change. Widespread ignorance is likely to reduce the quality of constitutional reforms that can be instituted, since it might lead voters to support deeply flawed institutional reforms and create opportunities for manipulation by political elites. These dangers are heightened by the reality that any major constitutional changes are likely to occur as a result of a major political or economic crisis. History suggests that even relatively well-informed voters might be tempted to approve of measures that promise relief from the immediate danger without considering their potential long-term effects.
Number of Pages in PDF File: 31
Keywords: Constitution, democratic, reform, deliberative democracy, political knowledge, political ignorance, constitutional change
JEL Classification: P11, P16
Date posted: August 25, 2007 ; Last revised: September 16, 2008