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When Impeachment Fails

Elections are a vital safeguard against presidential abuse of power. They must be protected from subversion.

November 30, 2021
An illustration featuring text from James Madison's notes on the Constitutional Convention, an image of former President Donald Trump, and other iconography
Brennan Center/Fabrice Coffrini/SchulteProductions/Getty

The Constitution’s separation of powers among Congress, the president, and the judiciary is a central element of the U.S. system of government, designed in part to enable each branch to prevent abuses of power by the others. When an abuse of power by an executive or a judge is sufficiently serious, the Constitution authorizes the legislative branch to impeach and remove the offending official. The Constitution’s authors — having just fought a revolution against a tyrannical king — especially feared the risk of abuse by a president; they consequently addressed impeachment in the Constitution even before outlining presidential powers. But the separation of powers is neither absolute nor explicit.

This essay focuses on the manifest weakness of the Constitution’s checks and balances in our current political environment, as demonstrated by the 2020 and 2021 impeachments of former President Donald Trump for abuse of power in dealings with a foreign nation and his attempts to subvert and nullify the 2020 presidential election. In light of Trump’s acquittals by the Senate, we face the question of whether impeachment works as a check on executive power and, indeed, whether checks and balances work overall. This question becomes especially salient if our election system is so flawed — or so hobbled by vote-suppression laws — that it cannot perform its primary constitutional roles of enabling a truly representative form of government and preventing tyranny. Unfortunately, we conclude that impeachment, without a working electoral system, cannot play its salutary role of protecting our democracy.

Origins of the separation of powers and the Impeachment Clause

Like the other essays contained in the Federalist Papers, James Madison’s Federalist No. 10, written anonymously in 1787 under the pseudonym “Publius,” sought to win support for the new constitution. Federalist No. 10 explains how the revised constitutional design improved on older models of democratic government that were vulnerable to what Madison termed the “mischiefs of faction.” Madison defined a faction as “a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”

As explained by Zachary Courser, Eric Helland, and Kenneth P. Miller in their book Parchment Barriers: Political Polarization and the Limits of Constitutional Order:

Madison believed that such factions were inevitable in a free society. In his view, the challenge was to develop a system of government that would make it difficult for majority factions to form, gain control of government, and overpower their opponents. The Constitution thus contained numerous means for controlling factional division, restraining pure majority rule, and preventing concentrations of power. These features included federalism, indirect elections, separately elected institutions, separation of powers, bicameralism, the presidential veto, and numerous checks and balances.

Notwithstanding these constitutional attributes, it appears that Madison wanted to make unmistakably clear the intended separation of powers. In his original draft of the Bill of Rights, he included an amendment that explicitly delineated the relationship among the branches.

Congress, however, rejected the proposed amendment; its members apparently believed the constitutional structure of government clearly distributed power among the branches. Consequently, the Constitution does not expressly declare that power shall be divided among the branches. Instead, the Constitution broadly summarizes each branch’s powers but says little about their relationships to the other branches: Article I states that “all legislative Powers . . . shall be vested in a Congress,” Article II declares that “the executive Power shall be vested in a President,” and Article III provides that “the judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.”

The constitutional separation of powers prevents the concentration of power in any one branch and provides each branch with tools to defend its interests and powers against encroachment by the others. As Madison argued in Federalist No. 51, “Ambition must be made to counteract ambition.”

Most American legal scholars and political scientists have characterized Madison’s insight essentially as pluralism — in which competing interests peacefully negotiate political outcomes. But this pluralistic model no longer works as the framers hoped it would, in part because it assumes many small, fluid factions (or interest groups) jockeying for power and institutional interests ensuring that each branch fights for its own turf.

However, neither element of pluralism is functioning now — nor has been for many years — and these breakdowns were particularly apparent during the impeachments of Donald Trump.

Painting depicting the signing of the American Constitution E. R. Curtiss/Wisconsin Historical Society/Getty
"The Signing of the American Constitution," one of four mural paintings by Albert Herter displayed at the Wisconsin State Capitol.

The failed impeachments of Donald Trump

The Constitution’s impeachment provisions could not be more pertinent in purpose to Trump’s impeachments. William Davie, a delegate to the Constitutional Convention in 1787, argued for the inclusion of an impeachment provision because without such a clause, a president might “spare no efforts or means whatever to get himself re-elected.” Congress explicitly embedded the impeachment process in the Constitution. In Article I, Sections 2 and 3 respectively provide that “the House . . . shall have the sole Power of Impeachment” and “the Senate shall have the sole Power to try all Impeachments” authorized by the House. Article II closes the impeachment loop by providing that “the President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”

The Constitution thereby granted Congress a means to directly check a president’s abusive ambition. However, our hyperpartisan political environment has nullified the prophylactic power of impeachment and degraded other defenses against constitutional failure.

The House first impeached Trump in late 2019 because it found that he committed an “Abuse of Power” (Article of Impeachment I) by “by pressuring an ally — Ukraine — to announce an investigation into a political rival — former Vice President Joe Biden, while withholding military aid and dangling a head-of-state meeting, thereby corrupting the integrity of U.S. elections.” Additionally, the House found that Trump obstructed Congress (Article of Impeachment II), “a coequal branch of government, by withholding documents and preventing witnesses from testifying, thereby impeding Congress’ investigatory power.” 

President Trump’s attempts to overturn the 2020 presidential election and incitement of the mob that attacked the U.S. Capitol led to his unprecedented second impeachment by the House in January 2021. Once again, the factual predicate of this impeachment was Trump’s attempted subversion of the electoral system. The events before, during, and after January 6, 2021, exemplify why the Founders added the impeachment clauses to the Constitution. In Madisonian terms, the House found twice that Trump abused his powers in order to subvert and nullify the “primary control” — as Madison described it in Federalist No. 51 — our system has for preventing tyranny: elections. The Senate, however, failed both times to muster the two-thirds majority required to convict Trump, despite the condemnations of Trump by several Republican leaders.

Why Congress did not check the president

Madison did not foresee that ambition would eventually reside with parties and not with institutions. Congress does not really care much about — or exercise — its institutional prerogatives under the Constitution when it comes to “checking presidential unilateralism,” in legal scholar Neal Devins’s phrase. This becomes especially evident when the same party controls both the presidency and one or both chambers of Congress.

As Devins argues in his article “Congress, the Courts, and Party Polarization”: “Polarization has significantly exacerbated this phenomenon. . . . Lawmakers from the president’s political party no longer assert institutional prerogatives to resist presidential encroachments.” Devins more generally observes that “polarization diminishes the ability of lawmakers to work together to defend Congress’s institutional prerogatives. . . . Today’s lawmakers increasingly identify with party-defined messages and seek to gain institutional power by advancing within their own respective party.”

In short, while Congress does have many tools to defend its interests, it makes little use of them. Individual members of Congress might share some stake in the institution, but the reelection imperative dominates their decision-making because it is existential. Thus, they fail to defy a president of their own party out of fear; they need favors and, usually, endorsement from the executive branch; and, thanks to state-level gerrymandering that makes party primaries decisive in congressional elections, they fear their own electoral base’s wrath if they defy a president of their own party. In addition, they choose not to defend Congress as an institution when it comes at the expense of advancing their own careers by securing choice committee assignments, becoming a leader in their party, or promoting some issue or interest important to their party.

Devins sees these electoral and personal forces as a collective action problem, as they operationally inhibit Congress in at least two ways. First, members don’t fight for Congress’s interests as a branch of government. War powers is a good example. While Congress has the sole power to declare war, representatives and senators don’t get pressure from constituents to cut back on military missions (perhaps in part because service is voluntary). Thus, Congress often defers to the executive and does not challenge presidential war-making unilateralism, to avoid being accused of obstructing necessary military operations.

Second, members do not always share Congress’s institutional interests. In cases of ideological disagreement, they often choose to defend whatever legislative or policy outcome they prefer rather than the process or constitutional prerogatives of Congress. For example, members have individually and collectively challenged, on constitutional grounds, federal legislation passed by Congress, including the Affordable Care Act, the Defense of Marriage Act, and the federal Partial Birth Abortion Act. Filing or joining litigation against the laws, members claim Congress lacks authority to pass them; they are less interested in protecting Congress’s constitutional authority than in winning the policy war.

Hence Trump’s first impeachment trial was doomed from the start, with members of Congress from Trump’s party more concerned with maintaining partisan solidarity than checking an out-of-control president. Before the first Senate trial even started, prominent Republicans, including the then-Senate majority leader, Mitch McConnell, and Senator Lindsey Graham, then chairman of the Judiciary Committee, went on the record saying they had already made up their minds and that no evidence would change their determination to acquit President Trump.

As Graham said at a forum in Qatar a month before the Senate trial, “I am trying to give a pretty clear signal I have made up my mind. I’m not trying to pretend to be a fair juror here.” McConnell went so far as to say during an interview on Fox News that he was colluding with the White House in the lead-up to the Senate trial: “Everything I do during this, I’m coordinating with White House counsel. . . . There will be no difference between the president’s position and our position.”

McConnell and Senate Republicans then voted along party lines in the first trial of Trump to block testimony from witnesses and bar introduction of new evidence, despite learning that former National Security Adviser John Bolton had evidence supporting the charges that Trump delayed congressionally authorized aid to Ukraine to leverage assistance in his reelection campaign. The media coverage reflected this polarization: right-wing outlets called it a “witch hunt” to overturn the 2016 election, while moderate or liberal outlets denounced the Republican “sham trial.” Voters shared these views, with 84 percent of Democrats supporting impeachment, joined by only 9 percent of Republicans.

The second impeachment of President Trump followed a similar course. Demonstrating the intensity of polarization (and the fealty of congressional Republicans to Trump’s base), few members of either chamber shifted alliances even after the January 6 insurrection at the Capitol, despite having been in danger themselves. In the House, only 10 Republicans voted for impeachment; in the Senate, only 7 Republicans joined all 50 Democrats to find Trump guilty on the charge of “incitement of insurrection.” The insurrection was the unfortunate, deadly conclusion to Trump’s months-long quest to propagate denial of his defeat by Joe Biden (in public comments and more than 60 failed lawsuits).

The vote of 57–43 for conviction in the Senate amounted to the most bipartisan support for conviction ever in a presidential impeachment trial. Yet we all knew even before the Senate trial that it would end with Trump’s second acquittal. Senate Republicans announced in advance that Trump would win, concocting a weak defense to justify their abject self-abasement: they contended that it is not legal to convict a president after who has left office — a position rejected by nearly every constitutional scholar and historian.

The Red Wall for acquittal in the second Senate trial of Trump is evidence of the durable power of faction — specifically, partisan faction.

Impeachment is inoperable in the face of party polarization

Acute partisan factionalism is a 21st-century problem, but it has a long history. For example, when Nixon was embroiled in the Watergate scandal, he saw his support among Republicans, independents, and southern conservative Democrats substantially decrease as the scandal unfolded, but it never fully evaporated. At the time of Nixon’s resignation, in August 1974, approximately 24 percent of the public still approved of him. A smaller proportion of voters abandoned President Trump: 34 percent of the public still approved of Trump in January 2021. In these cases, perhaps because multiple variables worked together to amplify polarization, partisans seemed almost impervious to evidence.

Image of an "Impeach Nixon" demonstration outside the White House MPI/Getty
A demonstration outside the White House in support of the impeachment of President Richard Nixon.

Support for Trump remained confoundingly steady through all his scandals, investigations, and impeachments. A Berkeley IGS poll, conducted November 21–27, 2019, showed 30 percent of likely California voters in November planning to vote for Trump — only a small dip from the 31.6 percent who supported him in 2016. Also showing little change were the numbers of those opposing his reelection: 68 percent of California’s registered voters did not approve of Trump’s performance, an increase of only two points from December 2017. This was also true at the national level.

A healthy pluralistic democracy should have citizens who participate in many different types of “factions” or interest groups — hypothetically, they could include evangelical Christian environmentalists or gay libertarians. In such a system, on any given issue, citizens might feel closer to Democrats or to Republicans, but their partisan alignments might shift from issue to issue.

Hybrid allegiances enable shifting coalitions and create opportunities for each party to compete for voters. But such voters — the ones envisioned by James Madison in Federalist No. 10 and by mid-20th-century political scientists — don’t exist in meaningful numbers anymore. Polarization and self-sorting have tied almost all voters, perhaps irreversibly, to one or the other major party.

In Congress, these trends in party loyalty have led over the past 25 years to lawmaking gridlock, government shutdowns, a weakened committee structure, centralization of power in party leadership, abuse of procedural rules to favor the party in power, highly partisan committee investigations (e.g., Benghazi), flouting of congressional subpoenas (most notably by Trump administration officers and employees), punishment of members who break ranks (e.g., Rep. Liz Cheney), and the disappearance or neutering of swing members and voters. People choose where they will live, with whom they will associate, and what news they will watch on the basis of so-called affective polarization.

As, for example, congressional scholars Thomas Mann and Norman Ornstein have explained, with the “telecommunications revolution” and the advent of the internet, the “plethora of channels, websites, and other information options has fragmented audiences and radically changed media business models.” Now we can watch or listen to news that reinforces our own biases and aggravates the increasing tribalization of America.

Working in tandem, these same forces — polarization, partisanship, and media configured to reinforce confirmation bias — have weakened impeachment as a tool to check an out-of-control president. Notwithstanding the unprecedentedly large bipartisan vote for conviction in Trump’s second Senate trial, party loyalty proved more powerful than evidence of his guilt.

We question, therefore, whether the authors of the Constitution created a structure for impeachment strong enough to counter the intensity and durability of faction and impel a presidential conviction on indisputable evidence of abuse of power. We also have no historical basis for settling this question because President Andrew Johnson was acquitted, President Nixon resigned before a Senate trial, and President Clinton and President Trump were acquitted.

C-SPAN coverage image of Clinton impeachment vote. -/C-SPAN/AFP via Getty
Overall shot of the U.S. Senate at the end of the impeachment vote on perjury charges against President Bill Clinton, as shown on C-SPAN. The Senate failed to convict Clinton.

If impeachment won’t cure an abuse of presidential power, what will?

Some scholars argue that even without removal, impeachment still serves a purpose. New comparative research from Tom Ginsburg, Aziz Huq, and David Landau on impeachment provides “the first comprehensive analysis of how constitutions globally have addressed [removals], and what the consequences of different design choices are likely to be.” Looking at a large data set regarding impeachment and removal along with case studies of South Korea, Brazil, Paraguay, South Africa, and the United States, they argue that impeachment allows presidential or semi-presidential systems to get out of a major crisis.

However, this “exit” from crises works best when the process of impeachment culminates in new elections immediately or soon after a head of state is impeached. In South Korea for example, new elections must be called 60 days after the impeachment process has concluded. Huq, Ginsburg, and Landau argue that this process allows a reboot of the system.

In the United States, we do not have such an immediate-election requirement — but we did coincidentally hold elections last November. What can this tell us about whether impeachment can provide this cleansing process? Some might say the election’s outcome proved that here too impeachment can serve such purpose. But because our election occurred only because the calendar dictated, we cannot rest on this comforting conclusion.

Some commentators believed that a “reset” election would allow Americans to say, definitively, “Trump is not who we are.” To serve as a reset, impeachment ought to result from elections that reflect the popular verdict — who we actually are and what we actually believe — about a president’s conduct.

It is fair to say that the last election reflected “who we are.” More than 159 million people voted in the 2020 federal election and 2021 Senate runoffs, the highest voter turnout in more than a century. As we have noted elsewhere, voters gave Democrats “trifecta” leadership of the White House, the Senate, and the House — a definitive rebuke of Trump and his congressional backers.

But even if the 2020 election was a cure, there’s little guarantee that future elections will be, given the ways Republicans are seeking to undermine elections in the Senate and state legislatures.

Contrary to the intent of the Constitution’s authors, Congress responds to issues slowly — or not at all — because the Senate does not represent the population, but rather states, and the House is gerrymandered to a fare-thee-well. Senators from low-population states — more likely rural, white, conservative, and Republican — are at least as powerful as senators from higher-population states, in part because they represent more homogeneous interests. Further, the arcane Senate rule of the filibuster exaggerates the already antidemocratic nature of the body. So proposed federal initiatives to fix problems of democracy laid bare by the last election — by easing voter registration, preventing or curing partisan gerrymandering, and making voting itself more accessible — are stymied by the ability of the Republican minority to deny a filibuster-proof supermajority in the Senate.

Worse, where Republicans are in control of state governments, they are changing the rules to make it harder to vote, especially for people of color. Republican legislators and other Republican officials, including several governors, assert that these new restrictions on voting will restore public confidence in “election integrity.” Their assertion, however, is unsupported by any evidence of election-security breaches anywhere in the country sufficient to change the national or state-level outcomes of the 2020–21 elections.

Republican-controlled states around the country have enacted vote-suppression laws. Georgia enacted legislation this year that prohibits and criminalizes “line-warming”—  the provision of food, water, and blankets by individuals or groups to voters standing in line, often for hours, while waiting to vote at their polling stations. Florida’s governor signed new legislation that also will restrict line-warming. Another repeated focus of these laws is voting on the Sunday before Election Day. As voting-rights experts and others have noted, the probable target of these prohibitions is “Souls to the Polls” — the custom among Black churches to organize congregants to vote together after services.

Republican-controlled states are attacking other turnout-boosting practices as well. For example, Florida now prohibits individuals or groups from collecting mail-in ballots from voters for delivery to drop boxes, mailboxes, or polling places. Florida’s legislation criminalizes any person’s possession of “two or more mail ballots other than the person’s own ballot and an immediate family member’s.”

By and large, Republicans reject the view that democracy is our constitutional model of government. Many have stated for a long time that the United States is a “republic” and not a “democracy.” Of course, this proposition begs the question about who should be able to vote, and how easily.

Indeed, it is ironic that Republicans appear to believe that constricting the availability of the franchise serves the small-r republican model of government. In Federalist No. 10, where Madison argued for the superiority of the republican form of representative government (relative to the purely democratic form) to mute the power of faction, he also contended that larger republics were superior to smaller republics:

The smaller the society, the fewer probably will be the distinct parties and interests composing it; the fewer the distinct parties and interests, the more frequently will a majority be found of the same party; and the smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression. Extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens; or if such a common motive exists, it will be more difficult for all who feel it to discover their own strength, and to act in unison with each other. Besides other impediments, it may be remarked that, where there is a consciousness of unjust or dishonorable purposes, communication is always checked by distrust in proportion to the number whose concurrence is necessary. Hence, it clearly appears, that the same advantage which a republic has over a democracy, in controlling the effects of faction, is enjoyed by a large over a small republic. [emphasis added]

It thus follows that, all else being equal, increasing the number of voters would make factions less powerful. Nevertheless, Republicans want to enact new limits on access to the polls, particularly directed at urban and younger voters and at voters of color, who tend not to support their party. Republicans aim to make it harder for these groups to vote, thereby trying to stave off a demographic and ideological challenge to white patriarchy in America.

The more Republicans restrict voting (by, for example, cutting voting days and hours, eliminating voting sites, prohibiting line-warming and ballot collection for homebound voters and for those lacking transportation to distant polling sites), the more they will be able to reduce or deter voter turnout. In this way, they lock in their gains for the long term. In their view, to the victors go the spoils — or, under these new vote-suppression laws, the ballots.

Where do we go from here?

What would it mean if neither impeachment itself nor post-impeachment elections serve their purposes, operating as a check on a president’s autocratic impulses (including efforts to subvert an election) or as the reset button for government? What would become of separation of powers? Where would the checks and balances be?

Scholars sometimes describe our extreme polarization as “tribal” — as if there were an equivalence of the parties. But, significantly, only one party is acting to subvert the Constitution’s reliance on voting to check tyranny. Most congressional Democrats support new legislation that will make voting easier and more accessible, but congressional Republicans oppose it, and states controlled by Republicans pass laws that make voting harder. It is difficult to see how our democracy — or our republic, if one would rather call it that — can survive our current circumstances: states able to limit voting rights; a U.S. Senate structured so that low-population, predominantly rural and white states have power equal to or greater than higher-population, more urban and more diverse states; and a filibuster process that puts an even heavier antidemocratic thumb on the scale in favor of less populous, more rural, and demographically whiter states.

We should not, of course, blame the Founders for believing that institutional checks and balances could mute and contain factionalism, because the new republic they were creating was unprecedented. Their only model was Britain’s constitutional monarchy, where the workings of Parliament seemed to show that small and fluid factions had until then always been more important than the two big nominal parties, Whig and Tory.

And, despite the Founders’ failure to eliminate faction (what we moderns might call “party”), the American constitutional system has done a relatively good job over its 230-year history in holding our continent-sized, hyper-diverse republic together.

The system has failed catastrophically only once, over the original national sin of constitutionally protecting slavery, which eventually ignited the Civil War. Slavery represented the most morally repugnant manifestation of the underlying mega-issue of American history and society, race, and racism. So it is not surprising that the current impasse is also ultimately about race.

This impasse is exacerbated by two other factors. The first has until now been a manageable weakness (some might even call it a strength) of the American system: our district-by-district, winner-take-all electoral system, which ensures there can be only two political parties (rather than the supple multiplicity of parties of electoral systems based on proportional representation). The danger here is obvious: if politics becomes irreversibly polarized, the presence of only two parties raises the odds that the competition will become ferociously zero-sum in nature, with no shifting coalitions to moderate the combat. Still, the current system broke down only once, despite the ever-present powder keg of systemic racism coupled with a winner-take-all electoral system.

Alas, a second and newer factor now ignites a match near that powder keg: election engineering, via gerrymandering, which has become ever worse over the past 50 years, allowing incumbents to win reelection upwards of 90 percent of the time. Vote-suppression laws aggravate the partisan effects of gerrymandering. Most lawmakers are thus beholden to their own party’s electoral base, not to voters in general, making it harder for members of Congress to impeach a president of their own party, especially if that president, like Trump, enjoys the fanatical support of the party base.

Even though Trump lost the election, the impasse will not fade any time soon. The GOP remains in his thrall and in 2024 will likely renominate Trump, or someone like him, to run for president. We do not know where America’s current impasse will lead or how it will end, but our constitutional experiment is at risk of failing.

Former President Trump holds up a copy of the Washington Post that reads "Trump acquitted" Drew Angerer/Getty
U.S. President Donald Trump holds up a February 6, 2020 copy of the Washington Post as he speaks in the East Room of the White House following his acquittal by the U.S. Senate on two articles of impeachment.

Recommendations

Arising as they do from centuries-long chains of events and decisions, the recent failures of checks and balances in the impeachment process and elsewhere in the federal government aren’t amenable to a simple solution. Our national situation ensues from multiple causes; it isn’t a Gordian knot that can be solved with one stroke. What’s more, the description above of our situation doesn’t even consider related public problems exemplifying and exacerbated by polarization, such as income inequality, climate change, and the response to the pandemic. Indeed, because of the structural issues discussed above (a fundamentally unrepresentative Senate and a gerrymandered House), Congress is far more polarized than the public.

Certain conservatives argue that our constitutional system creates fertile ground for a tyranny of the majority. That’s a straw man invoked to suppress voting and protect the filibuster — devices that enable minoritarian tyranny and flout the purposes and text of the 15th and 19th Amendments, among other measures. Therefore, we present here constitutionally and circumstantially grounded suggestions for enabling elections to reduce the risk of tyranny.

Owing to the structure of the Senate laid out in Article II as well as demographic trends, smaller, less populous, and more rural states are and will remain numerous enough in the Senate for the foreseeable future to prevent majoritarian oppression even without the filibuster — as is evident right now within and across the two major parties as they consider pending legislation. So the Senate first should end the filibuster now by re-empowering itself to cut off debate by a simple majority in any legislative matter. Without this vital change, we will not see any of the modifications to our electoral system needed to save our democracy.

To avoid another lawless president, we also must recognize that the Founders’ system of checks and balances — which includes impeachment — can function only if our elections do. For that reason, we think that other near-term remedies must focus on our election processes and laws.

To protect the constitutionally contemplated power of an ever-fluid majority in crafting public policy (and in support of Madison’s preference for a larger republic in lieu of a smaller one), Congress should pass the John R. Lewis Voting Rights Advancement Act to restore preclearance authority over states’ voting procedures to the federal government. Congress also should pass the Freedom to Vote Act, which would help make voting easier, less resource intensive, and available to more eligible voters and also address the bane of gerrymandering.

After these recommendations concerning the filibuster and new federal election legislation are implemented, voting results will reflect more accurately the will of the majority, subject to restraint by and accommodation of the minority. From issue to issue, majorities and minorities will evolve and mutate, because issues are complex, solutions have diverse impacts, and voters have crosscutting interests. The Constitution, however, plainly establishes the will of the majority, with explicit minoritarian and judicial restraints, as the ultimate engine of public policy. It’s long past time to effectuate that process. This newly revitalized majoritarian system would bolster checks and balances, and elections would reliably be a check on future tyranny.

 

Caroline Fredrickson, senior fellow at the Brennan Center and distinguished visitor from practice at Georgetown Law, served as the president of the American Constitution Society from 2009 to 2019. Before joining ACS, Fredrickson served as the director of the ACLU’s Washington Legislative Office and as general counsel and legal director of NARAL Pro-Choice America. She also served in senior positions on Capitol Hill and in the White House. She has published on many legal and constitutional issues and is a frequent guest on television and radio. She is also the author of Under the Bus: How Working Women Are Being Run OverThe Democracy Fix: How to Win the Fight for Fair Rules, Fair Courts, and Fair Elections; and most recently The AOC Way. Fredrickson received her JD from Columbia Law School with honors and her BA from Yale University. She clerked for Hon. James L. Oakes of the United States Court of Appeals for the Second Circuit.

Alan Neff most recently served as coeditor of The Rule of Law This Week for the American Constitution Society. Previously he was a senior corporation counsel for the City of Chicago, where he concentrated his practice in complex civil litigation. Over the course of his career in academe and practice, Neff has researched and written on a variety of subjects: federal judicial selection, international environmental protection, libel law, the Mueller investigation, and partisan gerrymandering. His work has appeared in the New York TimesWashington PostChicago TribuneEcology Law QuarterlyNorthwestern Journal of International Law and Business, and the American Constitution Society’s Expert Forum blog. He is a graduate of the University of Michigan, from which he received BA, JD, and MS degrees.