Make Me Democratic, But Not Yet: Sunrise lawmaking and Democratic Constitutionalism

Abstract

"Sunrise amendments"-constitutional provisions that only take effect after a substantial time delay-could revolutionize American politics. Yet they remain undertheorized and unfamiliar. This Article presents the first comprehensive examination of sunrise lawmaking. It first explores a theoretical puzzle. On the one hand, sunrise lawmaking resuscitates the possibility of using Article V amendments to forge "a more perfect union" by inducing disinterested behavior from legislators. On the other, it exacerbates the "counter-majoritarian difficulty" inherent in all constitutional lawmaking. When one generation passes a law that affects exclusively its successors, it sidesteps the traditional forms of democratic accountability that constrain and legitimate the legislative process. The Article accordingly argues that while sunrise lawmaking holds considerable promise, it should be confined to "democracy-enhancing" reforms that increase future generations' capacity to govern themselves. With this normative framework in place, the Article turns to the question of how time delays have actually been used in American constitutional history. It identifies six different instances of sunrise lawmaking in the U.S. Constitution. It argues that several of these illustrate how sunrise lawmaking can enhance the democratic character of American government, but at least one offers a cautionary tale of how temporal dislocation in constitutional lawmaking can have pernicious consequences.