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Consent, Legitimacy and Elections: Implementing Popular Sovereignty Under the Lockean Constitution University at Buffalo School of Law Digital Commons @ University at Buffalo School of Law Journal Articles Faculty Scholarship Fall 1990 Consent, Legitimacy and Elections: Implementing Popular Sovereignty Under the Lockean Constitution James A. Gardner University at Buffalo School of Law Follow this and additional works at: https://digitalcommons.law.buffalo.edu/journal_articles Part of the Election Law Commons, and the Political Science Commons Recommended Citation James A. Gardner, Consent, Legitimacy and Elections: Implementing Popular Sovereignty Under the Lockean Constitution, 52 U. Pitt. L. Rev. 189 (1990). Available at: https://digitalcommons.law.buffalo.edu/journal_articles/226 This work is licensed under a This Article is brought to you for free and open access by the Faculty Scholarship at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Journal Articles by an authorized administrator of Digital Commons @ University at Buffalo School of Law. For more information, please contact [email protected]. CONSENT, LEGITIMACY AND ELECTIONS: IMPLEMENTING POPULAR SOVEREIGNTY UNDER THE LOCKEAN CONSTITUTIONt James A. Gardner* Table of Contents I. The Consent of the Governed as the Basis of Governmen- tal L egitim acy .................................... 192 A. The Reshaping of the Historical Landscape ...... 194 1. The Identification of Multiple Influences on the Founders ............................ 194 2. The Republican Revival ................... 196 B. Popular Sovereignty and the Consent of the Gov- e rn ed ....................................... 2 0 0 1. Some Basics of Lockean Theory ............ 200 2. The Constitution and the Lockean Theory of Popular Sovereignty ...................... 205 a. Textual Evidence .................... 206 b. Historical Evidence ................... 209 c. Judicial Interpretation ................ 210 C. The Lockeanism of the Constitution ............. 212 II. Elections and Governmental Legitimacy .............. 213 A. The Multiple Meanings of "Election" in Lockean T heo ry ...................................... 2 13 1. The Election as a Specialized Act of Sovereign C h o ice ................................. 214 .2. The Election as a Social Rule of Decision ... 219 t Copyright © 1990, James A. Gardner * Assistant Professor of Law, Western New England College School of Law. B.A. 1980, Yale University; J.D. 1984, University of Chicago. This article has benefited from the helpful suggestions and comments of Akhil Amar, Lise Gelernter, Jim Gordon, Angelo Grima, Leora Harpaz, Cathy Lanctot, Bruce Miller, Dennis Patterson, Cass Sunstein, Barry Stern, and my colleagues who participated in a faculty forum at which I presented an earlier draft. Special thanks are due to Don Korobkin for his patient and probing exploration of my assumptions and arguments, and to Dean Howard Kalodner and Western New England College School of Law for providing financial support. UNIVERSITY OF PITTSBURGH LAW REVIEW (Vol. 52:189 3. The Election as a System for Discovering Pop- ular Decisions .......................... 220 B. The Need for Electoral Accuracy ............... 222 C. The Influence of Electoral Procedures on Electoral O utcom es ................................... 223 D. Electoral Outcomes and Governmental Legitimacy 227 1. The Limits of Consent .................... .227 2. The Role of the Court .................... 230 III. The Newtonian Mechanics of Electoral Accuracy: Nine- teenth Century Legislative Attempts to Clean Up Elec- tio n s ............................................ 2 3 1 A. The Persistence of Electoral Abuses ............. 232 B. Legislative Controls on Electoral Abuses ......... 236 1. Newtonian Election Laws ................. 237 2. Legislative H istory ....................... 239 3. Judicial Interpretations: Electoral "Purity" and the "Free" Vote ......................... 242 IV. M odern Election Laws ............................. 245 A . The N ew Legislation .......................... 246 B. Enhancement of Accuracy ..................... 249 C. Judicial Treatment of Modern Election Laws ..... 252 D. Free Speech and the Lockean Constitution: Toward a Judicial Approach to Modern Election Laws .... 255 1. The First Amendment in Lockean Perspective: T w o V iew s .............................. 255 a. Strong Lockeanism ................... 256 b. W eak Lockeanism ................... 261 2. Judicial Analysis of Modern Election Laws .. 266 V . C onclusion ....................................... 267 Sirs, count the votes; make strictest scrutiny, With holy fear, lest Judgment go awry. A vote o'er-looked may work most grievous wrong: A single pebble save a tottering house.** On June 4, 1989, a young man stood in Tiananmen Square in Beijing and surveyed the array of tanks and troops deployed by the Chinese government to crush a student-led movement seeking democ- racy. "Our government is already done with," he remarked to an ** Aeschylus, Eumenides, inGREAT BOOKS OF THE WESTERN WORLD 88, lines 748-51 (R. Hutchins ed. 1952) 1990] CONSENT, LEGITIMACY AND ELECTIONS American journalist. "Nothing can show more clearly that it does not represent the people." 1 Events have proved the young man wrong on the first count: the Chinese government has survived essentially intact. But the truth of his second statement is more difficult to assess. When does a government truly represent its people? How can we tell? In the United States, these questions seem to have simple answers. In the first place, we choose our government by election, so we know who represents us. In the second place, we do not have to contend with tanks enforcing the government's idea of who represents whom. Yet, many Americans would probably be surprised to learn that one of the first congressional delegates from Virginia, Francis Preston, won the election of 1794 when his brother, a federal military officer, arrived at the polls with more than sixty troops who, under orders, threatened physical violence to anyone who voted for Preston's opponent.2 Or that an armed group seized the polls during an 1860 congressional election in Baltimore and drove off voters under a hail of bullets while the po- lice looked the other way.' Or that in an 1882 congressional election in South Carolina the total number of ballots cast exceeded by six thou- sand the number of people who had voted.' Or that bribed, forged and otherwise fraudulent ballots accounted for fully ten percent of all votes cast in the November, 1982 general election in Chicago.' Can we be so sure that the winners of any of these elections really represented the people? If not, what is the status of officials who win election by vio- lence or fraud, and of the government in which those officials serve? The advent of the modern, heavily-financed, media-dependent election campaign has raised even more difficult questions. Many peo- ple, for example, think a candidate can essentially "buy" an election by outspending his or her rival on mass media advertising. If so, on what basis do we distinguish a candidate who wins an election by outspend- ing his rival on advertising from one who bribes voters directly? Simi- larly, what is the status of an election in which early media projections 1. Kristof, Crackdown in Beijing; Troops Attack and Crush Beijing Protest; Thousands Fight Back; Scores Are Killed, N.Y. Times, June 4, 1989, at 1, col. 6. 2. E. MORGAN, INVENTING THE PEOPLE: THE RISE OF POPULAR SOVEREIGNTY IN ENGLAND AND AMERICA 186-187 (1988). 3. HR. MISC. Doc. No. 4, 36th Cong., 1st Sess. 92 (1860), quoted in E. SIKES, STATE AND FEDERAL CORRUPT-PRACTICES LEGISLATION 36-37 (1928). 4. E. SIKES, STATE AND FEDERAL CORRUPT PRACTICES LEGISLATION 58 (1928). 5. Voting Rights Act: Criminal Violations, Hearing Before the Subcommittee on the Con- stitution of the Senate Judiciary Committee, 98th Cong., 1st Sess. 6, 17-18, 52, 55, 72-74 (1983). UNIVERSITY OF PITTSBURGH LAW REVIEW [Vol. 52:189 of the winner cause a sizable proportion of eligible voters to stay home thinking the election is all but over? In this Article, I shall address some of these questions in the con- text of the United States government by examining federal elections in light of the political theories underlying the Constitution. I shall argue that what is at stake in an election in this country is legitimacy, by which I mean rightful rule under a Lockean system of popular sover- eignty. As a result, election laws and procedures necessarily affect the legitimacy of an elected government by determining the extent to which election results accurately reflect the consent of the governed. Next, I shall argue that these factors suggest that the Constitution should be read to grant Congress broad power to enact election laws aimed at enhancing electoral accuracy, and that numerous judicial de- cisions striking down such laws on first amendment grounds rest on an incomplete analysis of the government interests at stake. More specifically, Part I of this Article argues that the Constitu- tion should be understood to embody a Lockean theory of popular sov- ereignty. Part II argues on the basis of this theory that election laws play a significant role both in implementing popular sovereignty and in mediating governmental legitimacy by enhancing electoral accuracy. Part III examines a group of what I call "Newtonian" election laws that attempt to prevent the most basic forms of election fraud, and the favorable treatment such laws have generally received from the Su- preme Court. Finally, Part IV examines
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