Is Democracy Coming to the USA? (with a nod to Leonard Cohen)

Mark Tushnet

Reading/skimming Democratizing Constitutional Law (Thomas Bustamente & Bernanrdo Goncalves Fernandes eds. 2016), in which I have a short essay on innovative processes of constitutional change in Iceland (now well known, of course) and Brazil (less well-known), I was struck by how narrow is the discourse on constitutional change/reform in the United States. Even suggestions for adopting an override mechanism of some sort are regarded as wildly outre and basically not worth thinking about. Part of the reason, I suppose, is that amending the national constitution is so difficult that the only things worth doing are efforts to innovate within the existing structure (though of course what "the existing structure" is, is itself contestable--whether a statutory override mechanism is constitutionally impermissible, which I take to be the standard position, depends on lots of reasonably contestable assumptions about existing law).

Why, though, are proposals for innovations in governance structures at the state and local level so limited (basically, I think, they're limited to tinkering with election rules)? (A fair amount of discussion of state-level innovations with respect to rights, of course.) Why isn't there scholarly discussion of the merits of Nebraska's single-house legislature as a model for constitutional reform elsewhere? Or, in the other direction (I suppose), why isn't there scholarly discussion of the merits of New Hampshire's enormous (both absolutely and relative to its population) legislature as a vehicle for democratic participation?

I know there's some discussion of the non-unitary executive (Sandy Levinson and others have done stuff on this) and some on nonpartisan districting commissions, but not, I think, much on the idea of creating an independent electoral management body for state-level elections even as there's heightened attention to the risks that partisan election management poses.

Maybe the problem is that a "democracy agenda" of constitutional revision is too obviously a "Democratic-Party agenda," though why that should deter scholars seems to me a puzzle (only in part because most in the US legal academy who are even modestly interested in these kinds of issues are Democrats anyway). Maybe it's time for an entrepreneurial law review symposium on democratic innovations for the United States but outside the mainstream of current discussions. (With the caveat as always that since I've retired I haven't kept up systematically with the literature and might well have missed a bunch of stuff bearing on this topic.)

Anyhow, another book worth looking at is the Handbook of Democratic Innovation and Governance (Stephen Elstub & Oliver Escobar eds. 2019) (with notably few contributions from or about the United States).