Dean’s Law and Policy Series Examines the State of our Constitutional Democracy

On the eve of the midterm elections, Professor Susan Herman, President of the American Civil Liberties Union and a highly regarded authority on constitutional law and criminal procedure, addressed the question “Do We Live in a Democracy?” during the November Dean’s Law and Policy Series program. Interim Dean Maryellen Fullerton moderated the third and final program of the fall semester.

Setting aside the implications of the mid-term election, Herman examined the framework of our electoral system and how it seems that “the deck is stacked in favor of a minority of people being able to control the government” and what remedies might exist to change the current system.

“The Constitution is the villain here, but it’s also the hero,” said Herman. “The framers of the Constitution were people who couldn’t agree on anything, so instead they drafted the Constitution—a set of neutral principles that help us decide who gets to make those decisions.” One of the framers’ compromises was the Senate, Herman said, which can be considered anti-democratic because it allocates two representatives to each state regardless of population.

She also discussed ways that the right to vote can be limited or diluted through practices such as gerrymandering, voter ID laws, and felony disenfranchisement, and noted that many such practices have racist origins dating back to the Reconstruction Era.

Some remedies to anti-democratic voting policies that Herman highlighted include the National Popular Vote interstate compact that would commit states’ electorates to vote for the winner of the popular vote, automatic voter registration, state courts ruling against gerrymandering, and Florida’s referendum to end felony disenfranchisement, which just passed.

“It’s a matter of getting back to our constitutional principles that we should all have neutral rules for how we vote,” said Herman. “If the framers of our Constitution with all their differences…could manage to come up with compromises…that should be a beacon for us today.”

The Dean’s Law and Policy Series will resume in the spring semester.

Watch the program here.