Divided suffrage.

• Jurisdiction: United States
• Author: Rosen, Jeffrey
• Date: 22 June 1995

The biggest constitutional mistake? As the recent wave of constitution-making in Eastern Europe suggests, future Solons and Lycurguses aren't likely to be very interested in quibbling over the details of a Bill of Rights. Instead, the critical question is how to structure democratic elections. And on this point, the most misguided provision in the U.S. Constitution is not the Electoral College, which remains theoretically mystifying but hasn't bothered anyone for more than a century. Far worse are sections 2 and 4 of Article I, and (if I'm allowed more than one villain) section 2 of the Fourteenth Amendment, which divide responsibility for defining the nature and scope of suffrage between Congress and the states. This unfortunate compromise, more than any other, is responsible for all the most traumatic electoral crises since Reconstruction.

"To have reduced the different qualifications in the different States to one uniform rule would probably have been as dissatisfactory to some of the States as it would have been difficult to the convention," Madison explained apologetically in Federalist 52. Allowing the states to restrict the suffrage in different ways was the only politically feasible compromise, because "it cannot be feared that the people of the States will alter this part of their constitutions in such a manner as to abridge the rights secured to them by the federal...