The Constitution and the political community.

• Author: Dorf, Michael C.
• Position: The United States Constitution, rev. ed.: How Would You Rewrite the United States Constitution?

The history of constitutional change in the United States is in substantial part a history of expanding the political community. Although the state property qualifications for voting that were common at the Founding were abandoned without the need for a federal constitutional amendment, such amendments were used to widen the polity to include African Americans and other non-white men, (1) women, (2) residents of the District of Columbia, (3) the poor, (4) and young adults. (5) Looking forward, one might ask what other groups now denied political representation could or should receive it in a more perfect Union.

Without denying the importance of other aspects of constitutional design, one might think that the question of who constitutes the polity is both more basic and more outcome-determinative of the collective decisions a polity will reach than are such still-important matters as whether to have a parliamentary, presidential, or mixed system of government, whether to create a federal or unitary state, and whether and how to provide for constitutional adjudication outside of the political organs of government. To put the point somewhat provocatively, the pre-Nineteenth Amendment male supremacists who argued that extending the franchise to women would alter the whole constitutional system were basically right. (6)

Consider three groups whose interests the Constitution--and the law more broadly--either ignores or grossly undercounts: Non-citizens outside the United States; (7) future generations of citizens; (8) and non-human animals. (9) Political decisions taken by the United States and its sub-units can and do have very substantial effects on members of these groups; yet the Constitution provides them with no effective mechanism to protect their interests.

U.S. policy decisions profoundly affect non-citizens, future generations, and non-humans without seriously consulting any of them or otherwise considering their interests. For example, our military and political leaders decide how much, if at all, to weigh the value of non-citizen civilians sacrificed as "collateral damage" to advance the perceived national security interests of the United States, nominally bound by the international humanitarian law of war, but not answerable at the polls to the foreign victims and their families. Likewise, politicians calculate the long-term costs of borrowing money or despoiling the limited resources of the natural environment, answerable only to the voters of here and now, not to those who will one day inhabit the world that results. And human citizens decide whether it is acceptable to confine, exploit, inflict suffering upon, and kill non-human animals to satisfy human preferences for food, clothing, and other products.

Suppose one thought that a just legal order would include mechanisms for giving substantial weight to the interests of noncitizens, future generations, and/or non-human animals. What mechanisms could be designed to give them that weight?

Direct political representation is ordinarily a useful starting point in answering such questions, but for future generations and non-humans, it is a non-starter. Even those non-human species (such as great apes and parrots) that can be taught to communicate in human language would not be capable of exercising the franchise intelligently.

Giving voting rights to non-citizens is a theoretical possibility, but it faces practical obstacles and principled objections. A country that has recurring difficulty counting the votes of citizens of Florida would be utterly flummoxed at the prospect of counting votes worldwide, including votes of persons living under nondemocratic regimes unaccustomed and hostile to holding free and fair elections for domestic purposes, much less foreign ones. Moreover, even if the practical obstacles could be overcome, it is not at all obvious that the interests of noncitizens should count equally with those of citizens, or even with one another. Would Mexicans and Canadians receive half-votes, with persons living farther away receiving quarter-votes? For roughly the same reason that the Supreme Court adopted the one-person-one-vote rule in Reynold v...