The structural constitutional principle of Republican legitimacy.

• Author: Rosen, Mark D.
• Position: Introduction to II. The Case Law Bearing on Republican Legitimacy B. Additional Cases that Address the Two, p. 371-419

ABSTRACT

Democracy does not spontaneously occur by citizens gathering to choose laws. Instead, representative democracy takes place within an extensive legal framework that determines such matters as who gets to vote, how campaigns are conducted, and what conditions must be met for representatives to make valid law. Many of the "rules of the road" that operationalize republicanism have been subject to constitutional challenges in recent decades. For example, lawsuits have been brought against partisan gerrymandering--which is partly responsible for the fact that most congressional districts are no longer party competitive, but instead are either safely Republican or safely Democratic--and against onerous voter identification requirements that reduce the voting rates of certain voting populations.

These challenges were based on individual rights claims grounded in equal protection or free speech. This Article's claim is that the rules of the road also implicate a structural constitutional principle, wholly independent of individual rights-based claims, that to date has gone unnoticed: what I call "Republican Legitimacy." This Article explains Republican Legitimacy 's source and content, and the costs o f failing to recognize it.

Republican Legitimacy's absence has distorted judicial analyses and led to egregious conduct by members of the state and federal legislatures. As to courts, individual rights doctrines have been unable to protect the structural principle of Republican Legitimacy. Republican Legitimacy identifies legally significant facts that are overlooked by rights doctrines that focus primarily on individuals, provides conceptual traction that rights-based doctrines do not, and makes clear why various subdoctrines developed in the individual rights context that limit judicial review have no rightful application with respect to a structural principle like Republican Legitimacy. For these reasons, rights-based doctrines cannot protect the structural principle of Republican Legitimacy.

As to legislatures, Republican Legitimacy's absence has led members of the legislative and executive branches to think that democracy's rules of the road are a part of ordinary politics. Republican Legitimacy makes clear that politicians have a special duty to act with a higher order of care when choosing democracy's rules of the road: they must act in accordance with "tempered" rather than "hardball" politics. As skeptical as one may be of politicians, there is no reason to assume legislators would not take seriously their oaths to uphold the Constitution once they understood it included Republican Legitimacy. Furthermore, there are steps that courts and Congress can take to encourage state legislatures--the institutions presumptively responsible for most of the rules of the road under the Constitution--to act consistently with tempered politics.

TABLE OF CONTENTS INTRODUCTION I. TEXTUAL AND CONCEPTUAL DERIVATION OF REPUBLICAN LEGITIMACY A. Republican Legitimacy's Doctrinal Derivation B. Republican Legitimacy's Contents 1. Legitimate-Selection 2. Legitimate-Decisionmaking C. Anticipating Three Arguments Against Republican Legitimacy 1. The Argument Against Legitimate-Decisionmaking: Madison and "Our Constitution". 2. The Argument Against Legitimate-Selection: The "Democracy-Deficit Refutation" a. History b. Meaning Versus Application c. Post-Guarantee Clause Amendments 3. Republican Legitimacy or Anti-Corruption? II. THE CASE LAW BEARING ON REPUBLICAN LEGITIMACY A. The Most Direct Precedent for the Proposition that Republican Legitimacy Is an Independent Constitutional Principle B. Additional Cases that Address the Two Components of Republican Legitimacy 1. The First Component: Legitimate-Selection 2. The Second Component: Legitimate-Decisionmaking a. The Legislature b. The Executive Branch c. The Judiciary C. Limitations of the Case Law 1. Compelling Interests Versus Independent Constitutional Principles 2. The Distinction Between Individual Constitutional Rights and Structural Constitutional Principles a. Critiquing Professor Hasen's Wholesale Rejection of Structural Principles in the Electoral Context b. Critiquing Professor Charles's Claim that the Distinction Between Rights and Structure Is Immaterial III. REPUBLICAN LEGITIMACY'S EXPLANATORY POWER: REVISITING THREE SUPREME COURT CASES A. Crawford and Voter Identification 1. Overlooked Facts 2. Inapplicable Subdoctrines a. The Overlooked As-Applied Challenge b. The Irrelevance of Discriminatory Intent B. Vieth and Partisan Gerrymandering 1. Overlooked Common Ground 2. Mistaking a Failure to Agree for the Impossibility of Agreement C. Revisiting Citizens United 1. Recognizing a Compelling Governmental Interest a. The Justices' Understandings of Corruption b. The Superiority of Republican Legitimacy i. Conceptual Clarity ii. Gaps in the Majority's Logic 2. Recognizing a Constitutional Conflict IV. CONCLUSION (AND PROLOGUE) "We are in the business of rigging elections." Vieth v. Jubelirer (quoting a North Carolina State Senator) (1)

"We are going to shove [the district map] up your f**king ass and you are going to like it, and I'll f**k any Republican I can."

Democratic chairman regarding the new districting plan for

Democratic-led county board in Illinois (2)

"[W]e are going to draw the lines so that Republicans will be in oblivion in the state of New York for the next 20 years."

Malcolm Smith, New York State Senate president (3)

"It is fair to infer that partisan considerations may have played a significant role in the decision to enact [Indiana's voter identification law]."

Crawford v. Marion County Election Board (4)

"Too often, Members' first thought is not what is right or what they believe, but how it will affect fundraising. Who, after all, can seriously contend that a $100,000 donation does not alter the way one thinks about--and quite possibly votes on--an issue?"

Alan Simpson, former United States Senator (5)

"Even a cursory survey of world events over the last 20--or 100--years makes plain that democracies are fragile, that democratic institutions can be undermined from within. Ours are no exception."

Alexander Keyssar (6)

INTRODUCTION

Representative democracy does not spontaneously occur by citizens gathering to choose laws. Instead, republicanism takes place within an extensive legal framework that determines such matters as who gets to vote, how campaigns are conducted, and what conditions must be met for representatives to make valid law. Many of these "rules of the road" that operationalize representative democracy have been subject to constitutional challenges in recent decades. For example, lawsuits have been brought against "partisan gerrymandering"--which has contributed to most congressional districts not being party competitive, but instead being safely Republican or Democratic (7)--and against onerous voter identification requirements that reduce the voting rates of certain voting populations. (8)

These constitutional challenges were based on individual rights claims that were grounded in equal protection or free speech. (9) This Article's core argument is that the rules of the road of representative democracy also implicate a structural constitutional principle, wholly independent of individual rights-based claims, that to date has gone unnoticed: what I call the principle of "Republican Legitimacy." (10) This Article explains Republican Legitimacy's source and content, the costs of failing to recognize it, and the payoffs of doing so.

Republican Legitimacy's derivation is relatively straightforward. The Constitution establishes a federal government that essentially is a representative democracy--that is, a republican form of government. The Constitution also guarantees a republican form of government to the states. The Constitution's establishment and guarantee of republicanism across the federal and state governments encompass the necessary preconditions for these republican forms of government to successfully and legitimately operate. These preconditions are the contents of the constitutional principle of Republican Legitimacy.

Republican Legitimacy's absence has led to egregious conduct by legislatures and distorted judicial analyses. As to legislatures, look again at the shocking statements collected in the prologue (11): legislators acknowledging that they "are in the business of rigging elections," (12) that "we are going to draw the lines so that Republicans will be in oblivion in the state of New York for the next 20 years," (13) and that campaign "donation[s] ... alter the way one thinks about --and quite possibly votes on--an issue." (14) The harm is not just to individuals, but to republican government itself.

More generally, inattentiveness to Republican Legitimacy has led legislators to think that democracy's rules of the road are a part of ordinary politics. Republican Legitimacy makes clear that politicians have a special duty to act with a higher order of care when choosing the rules of the road: they must act in accordance with "tempered" rather than "hardball" politics. (15) As skeptical as one may be of politicians, there is no reason to assume legislators would not take seriously their oaths to uphold the Constitution once they understand it includes Republican Legitimacy. Moreover, the courts and Congress can take steps to encourage state legislatures--the institutions presumptively responsible for most of the rules of the road under the Constitution (16)--to act consistently with "tempered politics." (17)

As to courts, the individual rights doctrines they have invoked have left the structural interests of Republican Legitimacy vulnerable. Republican Legitimacy identifies legally significant facts that are overlooked by rights doctrines that focus primarily on individuals, provides conceptual traction that rights-based doctrines do not, and makes clear why various subdoctrines developed in the individual...