Congress’ Role in the Rules-of-the-Road of Representative Democracy

by Yaniv Shmukler, 2L Note Candidate

In his recently published article, Can Congress Play a Role in Remedying Dysfunctional Political Partisanship?, Professor Mark Rosen discusses how voting rights, gerrymandering, and political campaigns lead to increased polarization in today’s political climate. He notes that most rules-of-the-road are state law, although Congress has the power to displace them. The article reiterates the main points from Rosen’s 2012 article, which suggested substantive and institutional ways to improve the rules-of-the road. Mark D. Rosen, The Structural Constitutional Principle of Republican Legitimacy, 54 Wm. & Mary L. Rev. 371 (2012).

The newly published article responds to critiques that say Rosen’s proposal is self-defeating j16_4169-1by invoking the constitutional origin of the rules-of-the-road and Congress’ ability to affect them. He connects these two ideas by arguing that an increased perception of the rules-of-the-road as constitutional will lead to an increased role by Congress.

Given the hostile political climate that has arisen since the 2016 presidential election, Rosen’s recommendations are more relevant now than ever. Political polarization has reached new heights, and even educators are struggling with this new reality. Vikki Ortiz Healy, Educators Struggle to Teach Election Lessons amid Charged Presidential Race, Chicago Tribune (Sept. 24, 2016, 5:35 AM), http://www.chicagotribune.com/news/ct-presidential-election-education-met-20160923-story.html [https://perma.cc/2D5R-BUKD]. This partisan divide prevents important legislation from being passed, leading to disillusionment within the populace. Partisan bias in redistricting, known as gerrymandering, persists despite efforts to eliminate the bias through independent commissions. Voting rights issues continue to be debated, as some states pass controversial voter ID laws and prevent felons from voting. In some cases, courts have struck down such laws, while in other cases, voting bans have been upheld. Congress can eliminate the uncertainty created by these rulings by playing a larger role in voting rights legislation.

Rosen argues that Congress should play a larger role in solving these problems. By bringing the constitutional origins of the rules-of-the-road to light, Rosen is hoping to give Congress a better understanding of its power to create change without waiting for the judiciary to decide on certain issues. With his new article, Rosen provides a much-needed perspective that could reduce partisan gridlock and lead to solutions to difficult problems. To read more about this topic check out Rosen’s article in this issue of the Indiana Law Review. Mark D. Rosen, Can Congress Play a Role in Remedying Dysfunctional Political Partisanship?, 50 Ind. L. Rev. 265 (2016) (available at http://mckinneylaw.iu.edu/ilr/pdf/vol50p265.pdf).

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