America's Unwritten Constitution: The Precedents and Principles We Live By (75 page)

Section 2 of this model law would proceed to specify the precise rules of this National Presidential Vote. For example, section 2 could provide that
Americans everywhere who want to be counted must register in a system to be administered by a nongovernmental election commission—made up, say, of a panel of respected political scientists and journalists. Section 2 could also specify its own uniform rules of voting eligibility, its own regulations regarding uniform presidential ballots, and even its own simple or elaborate election-dispute procedures. Alternatively, section 2 might contemplate that the National Presidential Vote should be administered by a new interstate election council or directly by the federal government, and Congress could then pass a statute blessing this more elaborate interstate agreement.

Some might dismiss all this as mere academic daydreaming, but this daydream dramatizes a remarkable truth about America’s current Constitution: Significant change is sometimes possible within the lines of the existing constitutional blueprint, short of formal amendment. A system of direct national election would surely mark an important departure from the current presidential-selection regime, yet this shift could be accomplished without changing a single word of the written Constitution.

Here is a final daydream: Imagine that the two leading presidential contenders in 2016 or 2020 both believe that the current system of presidential election fails to do justice to the bedrock democratic principle of one person, one vote. Imagine, that is, that both candidates believe that every American voter—whether in a big state or a small state or a midsize state; whether in a red state or a blue state or a purple state; whether in a state at all, or instead in a territory, or in D.C.—should count exactly the same as every other American voter. If so, both candidates could in fact put their ideals into action.
For the two major presidential candidates and their two running mates have it within their power to move us to direct national election
.

A candidate could publicly pledge that, if he loses the national popular vote, he will ask his electors to vote for the national-popular-vote winner. Having taken this public pledge, the candidate could then challenge his rival to take a similar pledge. Each candidate could likewise insist that his vice-presidential running mate take the pledge. Ideally, the candidates’ handpicked electors would honor their respective candidates’ solemn pledges when the electoral college met; but if not, no matter. The candidates and running mates should simply include in their initial pledge an
additional ironclad promise to resign immediately after inauguration in favor of the national-popular-vote winner.

The candidates themselves can make their pledges stick via the Twenty-fifth Amendment, which allows a president and Congress to fill a vacant vice presidency. Suppose, for example, that Smith somehow is inaugurated even though Jones won the national popular vote. On Inauguration Day, Smith’s vice-presidential running mate would resign immediately. Smith would then name Jones the new vice president under the Twenty-fifth Amendment, and Congress could then confirm Jones in a matter of minutes. Jones is, after all, the man with the mandate in our hypothetical, having won under the ground rules the candidates themselves publicly embraced before the election and that the public fully understood at the time of the vote. Minutes after Jones’s pro-forma confirmation as vice president, Smith would step down in favor of Jones.

If this scenario seems odd, it is useful to recall that it is not that different from the one that made Gerald Ford president in 1974: Vice President Spiro T. Agnew resigned, and then was replaced by Ford, who in turn became president upon Richard Nixon’s resignation.

Another analogy: Beginning with George Washington, who resigned after eight years even though he would have easily won a third term, for which he was fully eligible, early presidents gave America a strong tradition of a two-term limit on the presidency. Likewise, presidential candidates today could, via preelection pledges and (if necessary) postinauguration resignations, establish a strong tradition that the presidency should go to the person who actually won the national popular vote. Just as the informal two-term limit ultimately became specified in constitutional text—in the Twenty-second Amendment, to be specific—so, too, a series of candidate pledges could eventually pave the way for a formal direct-election amendment.
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And all it would take to get the ball rolling is for four persons to take the pledge in 2016. Imagine that.

WHETHER IT WOULD BE ACCOMPLISHED
by formal constitutional amendment or by informal adaptation, direct election of the president is an especially imaginable modification of the status quo because the current version of the electoral college can be seen as downright un-American—indeed, doubly so. First, America’s present method of electing presidents obviously violates the grand principle of one person, one vote—a principle that was not at the center of American constitutional practice prior to the Warren Court’s ruling in
Reynolds v. Sims
, but that has become central ever since that landmark decision. Second, the current version of the electoral college seems intuitively odd because all fifty states have governors who look remarkably like presidents, yet no state picks its governor via an electoral-college system. Rather, each state chooses its chief executive by a statewide popular vote, winner-take-all—thus raising the question of why the presidency should not likewise be selected by a national popular vote, winner-take-all.
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This second point ramifies far beyond the issue of how twenty-first-century Americans should elect the chief executive. Precisely because America’s fifty state constitutions so strongly resemble America’s fifty-first—federal—Constitution, the interesting respects in which the states diverge from the federal model provide plausible versions and visions of potential federal reform.

To fully appreciate the role that state constitutions have played and will probably continue to play in shaping the American constitutional imagination, we need to take a quick peek at the fifty terse—and sometimes not so terse—texts that collectively embody America’s other major experiment in written constitutionalism.

WHEN WE DO,
a striking pattern emerges: Across a large number of large issues, virtually all state constitutions have converged on a single distinct model of government. When it comes to at least ten fundamental
constitutional features, virtually every state for the past half-century has resembled every other state, and the federal model, too. As to these features, there is a distinctly American Way, with elements that differ dramatically from those at work in various prominent foreign constitutions. Here, then, are ten basic features of American constitutionalism:

First
, a written constitution adopted and amendable by some expression of popular sovereignty above and beyond enactment by an ordinary legislative majority. (Beyond America’s shores, Britain and Israel, among others, are notable contrasts.)

Second
, a bill of rights, which is typically textually separate from the rest of the document. The fifty-one American bills of rights also overlap a great deal in their language and substantive coverage, generally including freedom of expression and religion; the right to keep and bear arms; protections against unreasonable searches and seizures; procedural rights of criminal defendants; and safeguards of jury trial. (Great Britain and Australia, by contrast, have traditionally lacked strongly entrenched bills of rights.)

Third
, a bicameral legislature (except in Nebraska), with fixed rather than variable legislative terms. (Compare the modern British Westminster model with a functionally unicameral legislature and with traditions obliging early elections when the party in power loses a parliamentary vote of no confidence. In some foreign jurisdictions, the party in power may also call an early “snap” election on its own motion, merely to solidify its current political advantage.)

Fourth
, a legislative lower house typically composed entirely of representatives from equally populous single-member districts, each of which picks its representative via majority rule or plurality rule. (A minority of states do have multimember districts in the lower state house.) All geographic districts are redrawn at least once a decade to maintain equal population. Unlike the proportional-representation systems in place in countries such as Germany and New Zealand, no jurisdiction-wide vote-tallying system
exists to ensure that the number of legislative seats held by a political party closely tracks the overall percentage of party votes across the entire jurisdiction. Unlike multiparty regimes that operate in many other leading democracies, each American legislature is dominated by two main political parties—indeed, the same two parties across the continent, with minor variations.

Fifth
, a strong presidential/gubernatorial system with a one-person chief executive elected independently of the legislature, at fixed terms, wielding powers of pardon, appointment, and non-absolute veto. (By contrast, in classic parliamentary systems in places such as Britain, the legislature chooses the chief executive, who has no formal veto power and serves only so long as she continues to command a legislative majority. Even in some strong presidential systems abroad—for example, the French system—the president lacks a muscular veto.)

Sixth
, an executive understudy (vice president/lieutenant governor) explicitly provided for in the constitution (with a few notable state exceptions) who automatically takes over when the chief executive is disabled, dies, or resigns. Although this understudy usually has few other powers of his own, he does enjoy a fixed term of office coextensive with the chief executive; he is not simply appointable and removable at will by the chief executive or by the legislature. Rather, the understudy is typically elected by the people at the same time they elect the chief executive. (Here, too, parliamentary models abroad structure things very differently, with no constitutionally designated second-in-command, and no fixed terms or independence from parliament for executive understudies.)

Seventh
, a universal understanding that the constitution is judicially enforceable law capable of being invoked in ordinary courtrooms, even between two private litigants in lawsuits in which the government is not formally a party. (By contrast, many modern European systems feature an official Constitutional Court” in which constitutional issues are often treated differently from ordinary legal questions arising in ordinary private litigation.)

Eighth
, a system blending judicial independence and accountability in a distinctive way. Although judges, once chosen, may not simply be fired at will by the executive or the legislature, the process of selecting and promoting judges is highly political. Judges do not generally appoint other judges; nor is promotion to a higher court based strictly on seniority or on one’s reputation among fellow judges (unlike the German and French systems, in which the judiciary is much more self-regulating, and closer to a bureaucratic civil service).

Ninth
, a common-law style of adjudication featuring judicial precedent as an important source of law. (Here, the civil-law system of France presents an obvious contrast.)

Tenth
, juries, which are a prominent feature of both civil and criminal litigation. (Again, not so in a place such as France.)

WHAT FOLLOWS FROM THIS STRIKING PATTERN?
Not any strong claim that every state must slavishly adhere to this Basic American Model in every respect as a matter of federal constitutional law. It would be silly, for example, to think that Nebraska is under any constitutional obligation to repudiate its unicameral tradition. But in a less rigidly legal and more sociological sense, this Basic American Model defines the boundaries of realistic constitutional reform in America. Proposed federal amendments based on state variations
within
the Basic American Model described above are much more likely to be taken seriously than amendment proposals originating outside of this Basic American Model—proposals that are apt to be viewed as “foreign,” “alien,” or “un-American.”
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Examples of “alien” concepts include early “snap” elections or no-confidence elections for legislatures as a whole (as opposed to individual recall elections); multiparty regimes; cumulative voting or other proportional-representation systems for anything other than local elections; parliamentary systems involving legislative selection of chief executive officers; and civil-service models of self-appointing and self-perpetuating judiciaries. Although in the abstract there may be much to commend some or all of these concepts, none of them will likely take America by storm anytime soon.

By contrast, certain proposals to amend the federal Constitution will be taken seriously if comparable proposals have already been adopted and road-tested at the state level. In fact, most of the federal amendments that have thus far succeeded were copycats or adaptations of preexisting state constitutional texts or practices. Thus, the federal Bill of Rights tracked various state antecedent documents; the Reconstruction Amendments borrowed from the best constitutional practices of various enlightened free states; Woman Suffrage won at the continental level only after prevailing in many state constitutions; and so on.

Even before any formal amendments to the Philadelphia Constitution took shape, the Philadelphia document itself obviously built upon state constitutional templates. The basic structure of the Philadelphia plan—a written “Constitution” with a bicameral legislature and three branches of government—distilled the essence of extant state constitutions. On detail after detail, the Philadelphia framers in effect began by canvassing state constitutional practices and then eventually opted for what the delegates considered the best state practice. Thus, in the decision to put the federal Constitution to a special ratification vote of the people—a vote that would ideally encompass an especially broad electorate—the framers copied the models of the Massachusetts Constitution of 1780 and the New Hampshire Constitution of 1784. The idea of a federal census borrowed from the Pennsylvania Constitution of 1776 and the New York Constitution of 1777. The elimination of property qualifications for federal public servants likewise borrowed from Pennsylvania, as did provisions for all federal lawmakers to be compensated from the public fisc. The broad outlines of federal executive power combined the best of the Massachusetts and New York Constitutions. Various elements of federal judicial independence drew upon several state constitutional antecedents, as did Article III’s basic commitment to jury trial. In short, America’s federal constitutional project has tightly intertwined with her state constitutions from day one.