Rosen, Jeffrey, Constitutional Commentary
The biggest constitutional mistake? As the recent wave of constitution-making in Eastern Europe suggests, future Solons and Lycurguses aren't likely to be very interested in quibbling over the details of a Bill of Rights. Instead, the critical question is how to structure democratic elections. And on this point, the most misguided provision in the U.S. Constitution is not the Electoral College, which remains theoretically mystifying but hasn't bothered anyone for more than a century. Far worse are sections 2 and 4 of Article I, and (if I'm allowed more than one villain) section 2 of the Fourteenth Amendment, which divide responsibility for defining the nature and scope of suffrage between Congress and the states. This unfortunate compromise, more than any other, is responsible for all the most traumatic electoral crises since Reconstruction.
"To have reduced the different qualifications in the different States to one uniform rule would probably have been as dissatisfactory to some of the States as it would have been difficult to the convention," Madison explained apologetically in Federalist 52. Allowing the states to restrict the suffrage in different ways was the only politically feasible compromise, because "it cannot be feared that the people of the States will alter this part of their constitutions in such a manner as to abridge the rights secured to them by the federal Constitution."
But of course, abridging federal constitutional rights is precisely what the states proceeded to do in their decisions restricting the suffrage in the nineteenth century and manipulating electoral districts in the twentieth. Maybe there was some logic for allowing states to exclude broad classes of voters in 1789, when only propertied, educated citizens were thought capable of casting informed votes; but in an age when uniform as well as universal suffrage has been embraced as a national ideal, it makes little sense to tolerate a patchwork of inconsistent and parochial state restrictions.
More fundamentally, the constitutional tragedy of the post-Reconstruction era--the subversion of African American suffrage by the states--could have been avoided if the Reconstruction Republicans had granted Congress plenary control over the franchise, as Senator Jacob Howard and Congressman George Boutwell proposed. Imagine how the racial politics of the next century might have been transformed if the Committee on Reconstruction had endorsed Boutwell's draft of the Fourteenth Amendment ("Congress shall have the power to abolish any distinction in the exercise of the elective franchise in any State, which by law, regulation or usage may exist therein"), or Howard's draft ("Congress shall have power to make all laws necessary and proper to secure to all citizens of the United States in each State the same political and elective rights and privileges....").(1) Instead, by refusing to displace the states' control over the franchise, and by compounding the error with section 2 of the Fourteenth Amendment, the Reconstruction Congress paved the way for the nullification of the Fifteenth Amendment in the 1890s, as defiant states restricted black suffrage with literacy tests, grandfather clauses, dual registration requirements, and so forth.
Similarly, the great redistricting crises of the twentieth century--malapportionment, partisan gerrymandering, and the confusion over race-conscious districting--might have been avoided or moderated if States had been stripped of their powers to draw congressional districts. …