Andrew Allard '25
Editor-in-Chief
Max Stearns is the Venable, Baetjer & Howard Professor of Law at the University of Maryland Carey School of Law. His new book, Parliamentary America: The Least Radical Means of Radically Repairing Our Broken Democracy is available for purchase online.
Pictured: Maxwell Stearns
Photo Credit: Hopkins Press
Last Monday, the Journal of Law & Politics hosted an interview with Professor Max Stearns ’87 to talk about his new book, Parliamentary America: The Least Radical Means of Radically Repairing Our Broken Democracy. As the title suggests, Stearns’ proposal is ambitious—it involves three amendments to the Constitution.
Stearns’ three amendments would: (1) double the size of the House of Representative and institute a mixed-member proportional (MMP) voting system; (2) replace the Electoral College with presidential election by House party coalitions; and (3) allow the House to remove the President with a no confidence vote.
The three constitutional amendments Stearns proposes would replace the United States’ present presidential system with one that looks much more like parliamentary democracy, a system of government that has been widely adopted in democracies around the globe, especially in Europe. Stearns emphasized that MMP voting—which is used in Germany—is key to breaking the “stranglehold” that the two parties currently have on American politics. “Many people haven’t heard of mixed member proportionality. But it is a system that produces proportional representation and yet avoids the tragedy of many proportional representation systems that are hyper fragmented.”
Under an MMP voting system, Americans would still vote in federal elections every two years. But instead of one ballot, voters would now cast two: one for a candidate in their district—just like voting now—and one for a party. Party ballots would be assessed on a state-by-state basis to determine the proportion of seats for each party. For example, Texas’ House delegation would double from thirty-eight to seventy-six. If voters in Texas split evenly for four parties, each party would receive 25 percent of Texas’ seats in Congress, or nineteen seats each. Meanwhile, the candidates who won district votes would take one of their party’s nineteen seats until those seats are filled, with the remainder filled by party-list members.
Because a single party would be unlikely to capture the entire House of Representatives, parties would then have to form a coalition government. The resulting coalition would also appoint the President. A 60 percent supermajority of the House could then also remove the President for “maladministration.” While Stearns doesn’t supply a legalistic definition for maladministration, he noted that the supermajority requirement would prevent removal for mere policy differences because it would require members of the coalition government to also vote for removal.
Stearns acknowledged that these proposals are radical. But he suggested that they are “conservative” in the sense that they repair America’s democratic institutions through the most minimalistic reform needed. “We are past the point of bandaids,” Stearns said.
Stearns also explained his rejection of other—arguably more modest—proposals. “One of the things that gets a lot of attention is ranked-choice voting. I blame Andrew Yang for this,” Stearns said. “Ranked-choice voting does none of the things that its advocates contend.” Stearns argued that in a bimodal electorate, the elimination of candidates with the fewest votes, which characterizes the ranked-choice voting process, ultimately reallocates votes to major party candidates. “It punishes sincere voting. It doesn’t get you a centrist.”
To the extent that other problems, such as the polarized media environment, also contribute to democratic backsliding, Stearns argued that these problems will be easier to tackle under a parliamentary system. “Once we are a functioning democracy—which we are not—we can take on lots of things.”
Of course, a single amendment to the Constitution—let alone three—may be a dead end given the high bar for passage and the polarized public. Americans have amended the Constitution only twenty-seven times in 235 years, for an average of about one amendment every eight years. Excluding the Bill of Rights, which was quickly adopted after ratification, that average is about one amendment every fourteen years. By comparison, the global average lifespan of a constitution is just seventeen years.[1]
But Stearns insists that amendments are the only viable option. “The mistake that people make is to think that the thing to be avoided is proposals that require amending. No, the thing to be avoided is proposals that will not work and cannot be enacted.” Stearns suggested that, perhaps, Congress would become interested in democratic reform if a constitutional convention were initiated. “We may dislike these people—let them be the heroes of democracy.”
In short, Stearns is taking on a gargantuan task. Fixing American democracy, noble as it may be, is no easy feat. “For the same reason it is hard for a man to see where he placed his glasses, it is hard for a democracy to fix its political process.”[2] Vice Dean Michael Gilbert, interviewing Stearns, summed it up nicely: “I thought a natural place to start would be with the problems in American democracy. Now, the problem is, we only have one hour.”
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[1] Tom Ginsburg et al., The Lifespan of Written Constitutions, U. Chi. L. Sch. (Oct. 15, 2009). https://www.law.uchicago.edu/news/lifespan-written-constitutions
[2] Note, Pack the Union: A Proposal to Admit New States for the Purpose of Amending the Constitution to Ensure Equal Representation, 133 Harv. L. Rev. 1049 (2020).