The structural constitutional principle of Republican legitimacy.

AuthorRosen, Mark D.
PositionII. The Case Law Bearing on Republican Legitimacy C. Limitations of the Case Law though IV. Conclusion (and Prologue
  1. Limitations of the Case Law

    The case law surveyed above in Part II.B supports this Article's claim that Republican Legitimacy is an independent structural constitutional principle, but does not fully establish the Article's claim for two reasons.

    1. Compelling Interests Versus Independent Constitutional Principles

      Apart from U.S. Term Limits, Inc. v. Thornton, and arguably Powell v. McCormack, the case law examined above treats Legitimate-Selection and Legitimate-Decisionmaking as governmental interests--generally "compelling" governmental interests --sufficient to justify governmental regulation, but not as components of a stand-alone constitutional principle. Although useful, that case law does not go far enough because there are four critical differences between a compelling governmental interest and a full-fledged constitutional principle. I sketch these four differences below and fully develop them later in Part III.

      First, whereas a compelling governmental interest is a defense for government regulation challenged as infringing a constitutional commitment protected by strict scrutiny, independent constitutional principles also can operate as a sword to challenge governmental action. For instance, a compelling governmental interest could not have been used to invalidate Indiana's voter identification law in Crawford v. Marion County Election Board, whereas a constitutional principle could have. (220)

      Second, a constitutional interest may motivate legislatures differently than would a compelling governmental interest. Legislators may act more responsibly if they believe their participation is necessary to fully realize a constitutional commitment than if they are told that there is a "compelling governmental interest" that they act in a particular way. (221) After all, compelling governmental interests are "mere" policies, whereas constitutional commitments are something more. (222)

      Third, the failure to recognize a full-fledged constitutional principle distorts analysis when that principle runs up against a competing constitutional commitment. (223) In such a circumstance, the failure to recognize the constitutional consideration, treating it instead as "merely" a compelling governmental interest, can erroneously oversimplify the situation, making it appear that only a single constitutional value is at stake. The overlooked constitutional principle might not be given the dignity it deserves when a legislature considers whether to legislate or a court reviews legislation.

      Fourth, recognizing that Legitimate-Selection and Legitimate-Decisionmaking implicate constitutional interests, and not merely compelling governmental interests, makes clear that there are situations that present conflicts of competing constitutional commitments. (224) This should have doctrinal consequences for courts. The understanding that a legislature's decision reflects a considered effort to harmonize competing constitutional commitments, rather than a decision that implicates only a single constitutional principle, should generally lead to greater judicial deference to the legislative judgment because legislatures are better suited than courts, on grounds of both institutional competency and democratic legitimacy, to reconcile competing incommensurable constitutional commitments. (225)

      For all these reasons, there is a meaningful difference between a compelling governmental interest and an independent constitutional principle.

    2. The Distinction Between Individual Constitutional Rights and Structural Constitutional Principles

      This Article's claim is that Republican Legitimacy is a structural constitutional principle consisting of the conditions necessary to ensure that both our constitutionally created federal government and those of the states are functional and stable republican governments. With the exception of the Thornton and Powell decisions, however, the cases have addressed aspects of Republican Legitimacy in the course of analyzing individual rights-based claims based on the Equal Protection and Free Speech Clauses. This is a second respect in which most of the case law has not given Republican Legitimacy its full due; the minimal conditions necessary for Legitimate-Selection and Legitimate-Decisionmaking are facets of constitutional structure, not aspects of individual rights.

      But does it really matter whether a constitutional principle is deemed to be individual rights-based or structural? A longstanding scholarly debate addresses this very question. On the one side, Professors Richard H. Pildes, Samuel Issacharoff, and Pam Karlan argue that many election law questions implicate structural constitutional principles, and that attempting to address structural constitutional harms by rights-based constitutional doctrines is problematic. (226) On the other side, Professor Richard Hasen denies the existence of structural constitutional principles in the election law context. (227) Professor Guy Charles splits the baby, arguing that "it is immaterial whether one casts political rights claims in a structuralist or individualist frame." (228)

      This Article falls squarely on, and builds upon, the Pildes, Issacharoff, and Karlan side of the debate. It does so in two ways, both critically and constructively. First, in the subsection immediately below, I critically analyze Professor Hasen's and Professor Charles's arguments against structural constitutional principles. The constructive support of structuralism appears after that, in Part III, in which I identify reasons why constitutional rights cannot be counted on to adequately protect structural constitutional principles (229) and show fallout from the Court's failure to treat Republican Legitimacy as a structural principle.

      a. Critiquing Professor Hasen's Wholesale Rejection of Structural Principles in the Electoral Context

      Professor Hasen, among the nation's leading election law scholars, argues that "structural theories are all about individual and group rights after all." (230) He "see[s] nothing normatively improper (much less constitutionally intolerable) about a practice that causes no harm to individuals or groups of individuals." (231)

      The effort to collapse structural concerns into individual and group rights is mistaken for several reasons. First, it is inconsistent with constitutional text. Some constitutional provisions are primarily directed to securing the interests of individuals, whereas others are directed to constituting or securing governmental institutions. It is no surprise that the Fourteenth Amendment's charges that states shall not "deprive any person of life, liberty, or property, without due process of law, nor deny to any person ... the equal protection of the laws" (232) have been primarily conceptualized as generating individual rights despite the fact that due process and equal protection have downstream consequences as to how governmental institutions operate. Conversely, the requirement that the President "give to the Congress Information of the State of the Union," (233) and those of the Bicameralism and Presentment Clauses, (234) are best understood as structural requirements that determine the character of governmental institutions, though they also have downstream effects on individuals. (235)

      Second, Hasen's effort to collapse the distinction between structure and individual rights is troublesome because individual rights and structural interests are conceptually distinct. In one direction, individual rights can be violated even if a governmental institution cannot be improved upon. For example, a rogue or absent minded police officer may wrongfully search a citizen's home despite the fact that a fully adequate governmental policy is in place. In other words, even if there is nothing structurally wrong with a governmental institution or policy, individual rights can be harmed.

      In the other direction, there can be structural damage even if a governmental action imposes no harm to an individual. Consider, for example, a hypothetical statute giving Congress the power to approve the ambassadors proposed by the President. Because the Constitution grants the President the power to appoint ambassadors with the advice and consent of the Senate, (236) such a statute would enlarge the House of Representatives' power vis-a-vis ambassadors and, correspondingly, diminish the powers of the Senate and the President. This would impose a structural harm to the governmental system established by the Constitution despite the fact that it would not seem to harm individual citizens. (237)

      To generalize, much of what the Constitution does is to establish governmental entities and determine the relationships among them. There is no reason to think that there cannot be constitutional harms to these inanimate governmental structures. And, indeed, the Supreme Court has long policed against improper incursions against these institutions by means of the structural constitutional principles known as separation of powers and federalism.

      Professor Hasen probably does not deny the existence of structural principles in general but thinks that election law should only be analyzed under the rubric of equality, not structure. (238) Even this more moderate position is untenable, however, because it is not the case that all constitutional concerns in the voting context boil down to equality. (239) Republican Legitimacy, for instance, concerns what is necessary to maintain the legitimacy and stability of the republican forms of government that the Constitution creates and guarantees; these interests are not reducible to "equality." It does not slight the Equal Protection Clause to recognize that democracy's rules of the road implicate other constitutional principles as well.

      At least part of what drives Professor Hasen is the hope of having "apples-to-apples comparisons" among constitutional principles. (240) But an attempt to reduce everything to equal...

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