Republican Election Reform and the American Montesquieu

97 Pages Posted: 29 Jul 2011 Last revised: 11 Aug 2011

Kirsten Nussbaumer

Rutgers University-Camden; Stanford University

Date Written: June 28, 2011

Abstract

At the time of the American founding, discourse about election regulation was shaped by a venerated -- but now long-forgotten -- “republican” (or “whig”) tradition that taught that important election rules ought to be “fixed” in constitutions, not left to mere ordinary law, in order to protect popular sovereignty and limit electoral manipulation for incumbent, factional or partisan advantage. Men speaking on all sides of the debates about the framing and ratification of the U.S. constitution repeatedly invoked Montesquieu as authority for this tradition, and used (their understanding of) his precepts in order to evaluate each elections provision of the proposed constitution for its conformity to the tradition. While some elections provisions were received as sharp departures from the tradition, others were taken to be faithful accommodations of the republican tradition to a new variant of federalism. Over time, the republican electoral tradition evolved from an emphasis on entrenching election rules against change to mere entrenchment of a requirement that election reform be channeled through constitutional processes.

Keywords: Election law, U.S. founding, Montesquieu, suffrage, republicanism, fundamental law, constitutional change

Suggested Citation

Nussbaumer, Kirsten, Republican Election Reform and the American Montesquieu (June 28, 2011). Available at SSRN: https://ssrn.com/abstract=1898406 or http://dx.doi.org/10.2139/ssrn.1898406

Kirsten Nussbaumer (Contact Author)

Rutgers University-Camden

Camden, NJ 08102
United States

Stanford University ( email )

Dept. of Political Science and Law School
Stanford, CA 94305
United States

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