Beyond Formalist Sovereignty: Who Can Represent “We the People of the United States” Today?

David Chang*

To so many among us, it appears that our political system is broken. From the rigid partisanship in Congress, to the Senate’s rule of sixty, to the influence of lobbyists, to the vapid commercials and “robo-calls” used to influence voters, to the disproportionate power of small states in presidential primaries and in the Senate, to the disproportionate political influence of profit-seeking corporations, it seems that a system predicated on the people’s rule is badly in need of repair. The Supreme Court’s decision last term in Citizens United v. FEC, striking down a recent congressional effort to curb the influence of corporations in political campaigns, is just the latest occasion when pressing public needs have crashed against the barriers posed by an aging Constitution and a broad range of aging practices that have evolved within its framework.

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*Professor of Law, New York Law School. I would like to thank my colleague Steve Ellmann for his very helpful comments on previous versions of this article. Michael Cirigliano and Melissa Ferraro, both New York Law School Class of 2011, provided able research assistance. Michael Roffer, of the New York Law School library professional staff, provided helpful research support.