The Supreme Court has effectively decided to consider the question of who qualifies as the constituent of a legislator, and, as Joey Fishkin has pointed out, it got into this question from a different perspective in its most recent campaign finance decision, McCutcheon. There the Court included in that category donors, including out-of-jurisdiction donors. Is it possible that this Court would conclude that a donor is a constituent but that for purposes of the constitutional question presented in Evenwel , a resident under the age of 18 or a noncitizen is not? Fishkin writes: “[W]ho counts as a constituent? That’s the question, long latent, that the Court has decided to decide in Evenwel.”
This question can be attacked by the Court’s application of High Theory, or the resolution can be left with…. the politicians, entrusted with the judgment of how to define their representative relationships. This is one way to reconcile the McCutcheon decision with the right decision in Evenwell: the Court should not jump in and shape that choice by insisting on the one definition of constituency—eligible voters. To the extent that the Constitution does not dictate the answer, the Justices would be unwise to do so.
In McCutcheon, the Court referred repeatedly to donors as constituents who were free to enlist the gratitude of officeholders for their support. This was not corruption, the Court found: it was politics, and even more, it was fundamental to our proper conception of what a representative democracy must allow for. The Court stressed that there was nothing troubling about this “responsiveness” of politician to supporter:
Constituents have the right to support candidates who share their views and concerns. Representatives are not to follow constituent orders, but can be expected to be cognizant of and responsive to those concerns. Such responsiveness is key to the very concept of self-governance through elected officials.
Full Article: The Supreme Court and the “Constituent” –.