Keywords
democracy; constitutional convention
Abstract
Fears about the health of American democracy are high. And with the U.S. Supreme Court loosening federal constraints and returning critical substantive issues to the states, there is new and particular interest in the democratic quality of state institutions. Although some see opportunity in this decentralization, there is also good reason to believe that many states are failing to deliver on America’s democratic ideals. There are growing concerns, for example, that many state legislatures are enacting laws wildly misaligned with majority preferences on important issues like guns, abortion, LGBTQ+ rights, and healthcare. There are also deeper structural concerns regarding partisan gerrymandering, voting rights, and regressive power stripping within state governments. To the extent that American democracy increasingly depends on existing state institutions, there is good reason to believe that this structure is precarious.
This Article is the first to explore how the state constitutional convention might help address contemporary concerns about American democracy. My core claim is that the independent state convention is well designed to address certain aspects of contemporary democratic decay—specifically, systemic misalignment between statewide popular majorities and government. At its core, the state constitutional convention is designed to empower majorities over political elites and privileged private interests. Its defining features are the special election of a unicameral body of representative delegates with the sole mandate to debate and draft constitutional reform subject to a statewide referendum. Drawing on important theoretical and empirical work from political scientists, I show that the convention’s unique design tends to diminish the influence of special interests, facilitate moderation, and empower popular majorities. As a result, the state convention deserves more serious consideration in conversations about democratic reform in America. It could, for example, be a more constructive venue for conversations about redistricting, ranked choice voting, open primaries, campaign finance, allocation of Electoral College votes, and a host of other popular reforms that could improve American democracy but now run headlong into opposition from entrenched party leaders and special interests.
There are, of course, real limitations and dangers in holding a state constitutional convention. The most notable are foreclosure or sabotage by state legislatures, voter manipulation by interest groups, and the possibility of a majoritarian but illiberal constitutional convention. I propose several novel solutions in response to these concerns that reimagine how state courts and Congress might revive state conventions as constructive democratic institutions. I conclude by suggesting that American democracy would be improved if the state constitutional convention was a more accessible and credible institution because it would change the political calculus of misaligned state officials and special interests.
Recommended Citation
Jonathan L. Marshfield,
American Democracy and the State Constitutional Convention,
92 Fordham L. Rev. 2555
(2024).
Available at: https://ir.lawnet.fordham.edu/flr/vol92/iss6/10