What would it take to make constitutional law genuinely representation reinforcing? The answer is: radical change. Constitutional law that reinforced healthy politics would be different in nearly every respect from current law. Its animating goals would be to ensure legality and fight discrimination, not to protect privacy and extend jury power. It would focus more on macro incentives-the kind that drive legislation and the allocation of money and manpower-and less on the micro kind that dominate the law today. It would be more flexible and open to innovation, hence more political market-friendly. to use michael Dorfs and charles Sabel's helpful terminology, such law would be both more democratic and more experimentalist. 4 Though reformed constitutional law would be much less intrusive than the current regime, it would also better protect criminal suspects and defendants. who get little benefit from the legal doctrines that allegedly safeguard their rights My goal in this article is two-fold: to explain why radical change is needed and to sketch what it might look like. Part I addresses the first of those two tasks exploring the relationship between constitutional law and the politics of crime. Part II lays out the key characteristics of a more democratic experimentalist approach(hat tip to Dorf and Sabel)in this area. Part III applies these ideas, sketching a reform program for four areas: policing, adjudication and crime definition (legally two different topics, though they should be seen as one), punishment, and federalism Part Ill concludes with a brief discussion of how these reforms might happen-and why they probably wont All proposals have their downsides; different readers will prefer different reform packages. Yet the basic argument does not depend on the particulars of any package. Current constitutional law makes the politics of criminal justice worse more punitive, more racist, and less protective of individual liberty. That state of affairs is not inevitable. a different approach to constitutional law in this area would DEMOCRACY AND DISTRUST 97(1980)(calling the Fourth Amendment"a harbinger of the Equal Protection Clause"). The basic idea dates(at least)to Chief Justice Stone's opinion in United States v Carolene Products Co., 304 U.S. 144, 153 n 4(1938)(PRejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. See Michael C. Dorf Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 COLUM. L REV 267(1998)DEMOCRACY AND DISTRUST 97 (1980) (calling the Fourth Amendment “a harbinger of the Equal Protection Clause”). The basic idea dates (at least) to Chief Justice Stone’s opinion in United States v. Carolene Products Co., 304 U.S. 144, 153 n. 4 (1938) (“[P]rejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.”). 14See Michael C. Dorf & Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 COLUM. L. REV 267 (1998). 6 What would it take to make constitutional law genuinely representation reinforcing? The answer is: radical change. Constitutional law that reinforced healthy politics would be different in nearly every respect from current law. Its animating goals would be to ensure legality and fight discrimination, not to protect privacy and extend jury power. It would focus more on macro incentives — the kind that drive legislation and the allocation of money and manpower — and less on the micro kind that dominate the law today. It would be more flexible and open to innovation, hencemore political market-friendly. To use Michael Dorf’s and Charles Sabel’s helpful terminology, such law would be both more democratic and more experimentalist.14 Though reformed constitutional law would be much less intrusive than the current regime, it would also better protect criminal suspects and defendants, who get little benefit from the legal doctrines that allegedly safeguard their rights. My goal in this article is two-fold: to explain why radical change is needed, and to sketch what it might look like. Part I addresses the first of those two tasks, exploring the relationship between constitutional law and the politics of crime. Part II lays out the key characteristics of a more democratic experimentalist approach (hat tip to Dorf and Sabel) in this area. Part III applies these ideas, sketching a reform program for four areas: policing, adjudication and crime definition (legally two different topics, though they should be seen as one), punishment, and federalism. Part III concludes with a brief discussion of how these reforms might happen — and why they probably won’t. All proposals have their downsides; different readers will prefer different reform packages. Yet the basic argument does not depend on the particulars of any package. Current constitutional law makes the politics of criminal justice worse: more punitive, more racist, and less protective of individual liberty. That state of affairs is not inevitable. A different approach to constitutional law in this area would