by Mark D. Rosen
Professor of Law (Faculty Profile)
Chicago-Kent College of Law
565 W. Adams St., Room 751
Chicago, IL 60661
[Editor’s Note: Professor Rosen’s full analysis will be presented at this year’s Indiana Law Review Symposium, titled Partisan Conflict, Political Structure, and Culture, on Friday, November 6, 2015. Registration information is available here.]
A recent situs of deep partisan contestation – and a likely contributing cause of dysfunctional partisanship – are the rules of the road that operationalize our representative democracy in the States: for example, what conditions must be satisfied for voter eligibility, how votes are aggregated for purposes of selecting representatives, and how political campaigns are funded. State law governs most rules of the road, though Congress has substantial authority to regulate instead. Might there be a role for Congress here?
Perhaps. Partisan rules of the road threaten the system of representative government the Constitution creates for the federal government and guarantees the States. Congressional action to correct representative democracy’s problematic rules of the road accordingly falls within the domain of constitutional decisionmaking. My talk then builds on a larger project of mine that argues there ought to be a special set of norms are applicable when Congress engages in constitutional decisionmaking. Without a clear understanding of such norms, any suggestion that Congress can engage in responsible constitutional decisionmaking can be criticized as unrealistically naïve or utopian. More constructively, clearly articulated norms may increase the likelihood Congress will engage in responsible constitutional decisionmaking.