• Video

The Law of Democracy

How much does the Constitution say about the mechanics of the democratic process? It establishes some rules, such as how often elections are, but otherwise doesn’t have many details. Professor Michael McConnell discusses how the “law of democracy” is a result of long-standing practice and judicial innovation, not interpreting the Constitution itself. https://youtube.com/watch?v=GpIwZ37TUA8


So one of the oddities of the US Constitution is how little it has about the mechanics of the democratic process itself. There are some rules. Ah we know, for example, that the states uh are going to decide for themselves how to do districts, how to conduct elections, what the voter qualifications are going to be, subject to uh Congress' uh ability to pass supervening legislation regarding the governance of of federal elections. Uh but that's not a lot, that doesn't tell us how districts are going to be formed. We do know a very important thing, which is how often elections are going to be, and that itself is a a huge advance, right? The uh fact that we hold regular elections rather than allowing governments just to stay in power forever is a huge uh advance for democracy. Uh but a lot went unspecified. I think if we were to write a constitution today we would be almost certain to include provisions about things like candidate selection, are we going to have a primary system or not. Probably we would be interested in constitutionally specifying ah single member districts and first past the post elections, and our presidential elections would probably would not be governed by the electoral college. I don't know that for sure, but I doubt that would pass uh today if we were to be starting from scratch. So, a lot of the law what we call the Law of Democracy when we teach this in law schools, is the product of long standing practice and of judicial innovation rather than actual interpretation of the Constitution.

Related Content