Democracy As Collective Action

For the Balkinization Symposium on Neil S. Siegel, The Collective-Action Constitution (Oxford University Press, 2024)

Guy-Uriel Charles 

Neil Siegel’s The Collective Action Constitution is an important book for scholars of law and democracy.  Admittedly, The Collective Action Constitution is broadly about constitutional interpretation and not about the law of democracy. However, understanding the Constitution through the telos of resolving collective action problems demonstrates the utility of Neil’s book outside his target area.  Commendably, Neil does not ignore democracy, though understandably, most of what he has to say is relatively short and comes toward the end of the book. In what follows, I’m interested in highlighting The Collective Action Constitution’s contribution to law and democracy.

Self-Government as Collective Action

Scholars of law and democracy should be strongly interested in a book that sees solving collective action problems as one of the Constitution’s core principles. One might argue that the utility and effectiveness of a system of government rests in its ability to solve collective action problems.  Representative democracy, like all systems of government, can hinder or facilitate collective action.  One way of evaluating a system of government is based on how well it solves the problem of its citizens. 

Moreover, there is, perhaps, no greater and more challenging collective endeavor than the enterprise of self-government.  Representative democracy requires a lot of coordination and cooperation by a myriad of institutions and individuals.  Citizens are best able to impact their polity through collective action.  Indeed, one might argue that politics are not possible without collective action. 

Thus, a constitution that has as one of its main purposes the removal of barriers to collective action in the pursuit of self-government should be of great importance to those whose primary subject of inquiry is understanding the structural barriers to developing a well-functioning system of government.  Moreover, the aims of representative democracy should have significant implications for how we understand the Constitution. 

The Constitution on Democracy 

Ironically, the Constitution has too little to say about democratic self-governance, and much of what it has to say seems to allocate power—at least a significant first-mover advantage—to the states.  As Sam Issacharoff and Rick Pildes once pointed out with their characteristic insight, the Constitution is generally silent on important matters of representative democracy, and where it is not silent, the text “reflects the pre-modern world of democratic practice and the long-since rejected assumptions of that world on which the Constitution rests.”  If there is one area in which the Constitution is inutile, if not dangerously outmoded, it is in the area of democratic practice. 

For example, the Constitution says nothing about political parties, which are indispensable institutions in a modern democracy for collective action.  Indeed, the Framers were disdainful of parties, which they saw as factions.  Consequently, political parties, the lifeblood of advanced democracies, are dependent upon the whims of the states and the Court for their shape and content. 

Additionally, the Constitution of one of the world’s most vibrant democracies does not guarantee a positive right to vote for federal offices.  This is a tremendous oddity, to put it mildly. At best, by linking voter qualifications in federal elections to those of the state in which the voter resides, the Constitution implies a federal constitutional right to vote for members of Congress. Article 1 § 2 and the Seventeenth Amendment dictate that voter qualifications for the House and the Senate, respectively, will depend on each state's qualifications for its largest house. This arrangement makes the states the most important actors in this domain and creates variation instead of uniformity for what should be a national legislature.  Similarly, the Elections Clause makes the states—and perilously substate entities—the primary actors in the administration of federal elections, though it also provides Congress residual and supervisory authority. 

It is true that subsequent amendments to the original constitution remove certain criteria from the discretion of the states and transfer power to Congress to enforce these prohibitions.  Specifically, the Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendment forbids the states from conditioning eligibility based on race, gender, the failure to pay a poll tax, and age, respectively.  However, these amendments are the exception that proves the rule: the states set voter qualifications in federal elections, except where explicitly prohibited by the Constitution.  The states also administer federal elections, with the possibility of federal oversight looming in the shadows.  Fundamentally, the practice of democracy is predominantly, though not exclusively, a creature of state regulation. 

Siegel on Democracy 

If solving collective action problems is the best way of making sense of the Constitution, what should we make of the fact that the Constitution has little to say about representative democracy? Neil’s book brilliantly engages almost all areas of constitutional law, including the law of democracy. Most of what Neil has to say about democracy is in Chapter 9 of the book.  An important purpose of the chapter is to demonstrate how “a collective-action theory of the Constitution can help account for many constitutional rights that protect the integrity of the democratic process at both the state and national levels.” (356) Neil discusses several constitutional provisions in this chapter but he anchors the chapter's discussion about representation largely in the Guarantee Clause of Article IV, § 4, which provides: “The United States shall guarantee to every State in this Union a Republican Form of Government . . . .” 

Neil makes three distinctive contributions in this chapter: one about individual rights, one about structure, and one about “democratic process rights.”  I find the individual rights and structural contribution extremely useful but limited.  I found the “democratic process rights” contribution insightful and wanted more. 

For Neil, the Guarantee Clause, like many constitutional provisions, “serve[s] dual purposes,” an individual rights purpose by “protect[ing] the individuals who invoke them,” and a structural purpose by “prevent[ing] the states from causing collective action problems.” (357).  On the individual rights side, the Guarantee Clause implicitly grants United States citizens who are residents of states the right to vote for state legislative offices.  The Guarantee Clause “expresses a commitment to individual rights against one’s own state by championing popular sovereignty, or government by the people.” (364). 

On the structural side, Neil borrows from civil liberties lawyer Daniel Korobkin and Yale Law Professor Akhil Ahmar to argue that representative government in the states protects sister states from the threat of authoritarianism posed by non-representative states.  Non-representative states “are likely to impose negative externalities on neighboring states, including by invading them or encouraging violent disturbances within them.  These actions impose very high costs, whether measured in terms of lives lost or money spent, and so cause a cost-benefit collective-action problem.” (366). 

However, the Guarantee Clause also protects the federal government, in addition to the states. Because the states set voter qualifications for federal elections, Neil argues that “democratically-illegitimate state governments will undermine the legitimacy of federal actions, including solutions to collective-action problems that Congress imposes after concluding, amid disagreements among states, that such problems exist and warrant a regulatory response.” 

These interpretations of the Guarantee Clause make sense to me.  But, I do find them a bit limiting.  As a safety valve, it is important that states remain broadly representative, and no one wants one state invading another.  But these interpretations do not help us resolve the vast majority of issues of questions raised by our representative democracy, such as whether our political parties are committed to representative democracy, or whether oligarchs control our politics, or whether local officials will certify the results of a federal election. 

However, Neil suggests a more robust utility of a theory of collective action for law and democracy.  Neil argues that one can derive a conception of political rights, what he calls “democratic process rights,” (388), from the theory of the collective-action constitution. These include “free political speech, expression, and association, a free press, peaceful assembly, a right to petition the government for redress of grievances, voting rights, the apportionment principle of one-person, one-vote, and, arguably protection from extreme partisan gerrymanders.”  (388).  Neil justifies these and other rights on the ground that they “encompass[] rights that help secure the integrity of the democratic process at the state and federal level.” (388). 

I think the implications of Neil’s theory are more forceful than he lets on.  A collective-action constitution should be interpreted to address the pathologies of representative democracy and ensure its ability to solve the fundamental problems of its citizens. When one combines Neil’s indispensable and penetrating insight that our Constitution is best understood—structurally, descriptively, and pragmatically—as a framework document for addressing each generation's collective action problems with the aims and purposes of representative democracy, the implications for the field of law and democracy are significant. For example, Neil provides a different way of bemoaning the Court’s lamentable decision in Shelby County v. Holder. 

However, the possibilities of the collective-action constitutionalism theory are not limited to judicial interpretation. Instead, the challenge can be directed to the demos.  What responsibility does Congress have for protecting democracy against its current challenges? What is our responsibility as citizens? Neil’s theory compels the demos to reorient our approach to the Constitution to make it consistent with one of its fundamental purposes. 

Guy-Uriel Charles is the Charles Ogletree Jr. Professor of Law at Harvard Law School. You can reach him by email at gcharles@law.harvard.edu.