Another Election, Another Split-Decision: How Constitutional Roadblocks to Democracy Continue to Bedevil Us
Two hundred and twenty-nine years after the Constitution was ratified, the nation-founding document continues to pose a minefield of obstacles to a true democracy adhering to the principle of “one person, one vote.”
We permit the United States Constitution to thwart democracy because we refuse to consider real changes that would better serve true representational democracy.
Let’s put aside, for a moment, everything wrong with the way this country conducts its elections, including all the blatant tricks, cheats and deceptions that political parties and partisan office holders use their power to keep qualified Americans from voting.
Let’s simply look at how a creaky, compromise-ridden document written to meet the needs of 1789 fails to meet basic criteria of democracy as most people understand it today: one person, one vote.
Problem number one: the United States Senate.
Last week American voters registered a desire to change substantially the membership of the country’s legislative arm of government, the two branches of which are presently controlled by one party. Nationwide, Americans voted for members of the opposition party by an 8 percent margin (54 to 46 percent, excluding third-party candidacies). By the standards of national elections that’s a significant mandate.
What did voters get for their votes? In the House of Representatives, majority control switched from the party in power (Republicans) to the part out of power (Democrats), a result that reflected the desire of the majority of voters.
When we look at the other branch, the Senate, voters did not get what, by the democratic currency of the vote, they clearly wished. Instead, Republicans increased their majority of seats.
That’s because the constitutionally established make-up of the US Senate has nothing to do with representative democracy and everything to do with protecting the interests of less populous states.
Since 1789, the make-up of the Senate — two senators from each state, no matter how populous or negligibly peopled — calls for two (and only two) Senators from each state. This formula, known as the “Great Compromise” was written into the Constitution to placate the fears of the ‘small states’ that the interests of the large states would dominate the new nation.
That objection has weight only if we accept the notion that our nation consists of ‘sovereign states’ — entities that had been colonies of the British Empire through their entire existence until the successful culmination of the American Revolution in 1783— which should retain certain rights or powers that are beyond the scope of national (or ‘federal’) authority.
That notion of ‘states’ rights’ made some sense to the Constitutional framers in 1788, though it has always been problematic, leading in part to a civil war. But it makes absolutely no sense today.
The fear that the long-ago interests of Rhode Island, Maryland and Delaware would be overpowered by the wealth and populations of larger states were it not for the protections of the US Senate is hardly a justification today to give voters from Montana, Wyoming, the Dakotas and all the other under-populated Western states (along with still tiny Rhode Island, Delaware and new buddy Alaska) an absurdly disproportionate power in the makeup of the Senate — to the disadvantage of voters in California, Texas, New York, Florida or any of the more populous states.
Most Americans today live in or near big cities, and in the surrounding communities we call suburbs. Some 60 percent of Americans dwell in metropolitan areas of more than a million residents. But the two-for-each Senate continues to over-represent those who live in small states. Wyoming has 600,000 people. California 40 million. That means that a single vote for Senator in Wyoming is worth approximately 70 times what a vote is worth in California. As we say up North, you Wyoming folks sure must be important.
How do we square this fact with one-citizen, one-vote? We can’t.
The obvious point is that the US Constitution never intended the Senate to be a ‘democratic’ institution any more than the House of Lords is in Great Britain. Or the Roman Senate was.
Our Constitution created a form of government best described as a ‘republic.’ Not the ‘democracy’ Americans believe they are living in.
A republic, such as the Roman Republic — our framers’ go-to model for the system they created for the US — is a government with an elected head of state.
A democracy is a form of government in which citizens play a deciding role in choosing the members of all their major governing bodies. Such as voting for them.
Further, the constitutional framework for the United States Senate, a point completely ignored today, called for the members of the Senate — this ‘sovereign state’-protecting body — to be chosen not by popular vote but by the state legislature. This body, seldom numbering 100 citizens in early days (all male, those days), was given the power to choose two people (men) to represent their state’s interests in the US Senate.
Remember that this body is Constitutionally awarded some particularly important powers: approval of treaties, confirmation of the President’s principal advisers (cabinet heads), confirmation of Supreme Court justices, and trying a President brought up on impeachment charges.
This selection process for Senators is one of the few provisions that has been amended; changed in 1913 from legislative appointment to general election.
But since the Constitutional ‘great compromise’ still governs the make-up of the Senate, small states still retain a highly disproportional representation in that important body.
In last week’s election Republicans gained seats in the Senate, while the majority of Americans were voting against their party’s Congressional candidates because — to reiterate — smaller, more rural states are still entitled to a disproportionate degree of representation.
As columnist Paul Krugman recently pointed out, given this divergence between what a majority of Americans voted for and what an archaic system allows less populous, more rural states to do, “Trump and his Senate friends will spend the next couple of years stuffing the courts with right-wing loyalists.”
“We may,” Krugman concludes, “be looking at a growing crisis of legitimacy for the U.S. political system…”
I think we’ve been looking at a crisis of legitimacy in our political system for quite some time.
How can anyone look at the confirmation of right-wing ideologue, hatchet-man, serial perjurer, and sexual abuser to the Supreme Court by a band of nasty old white sexists and not think there is something wrong with the make-up of the Senate? We cannot have a major branch of government controlled by a minority of the population and claim to be functioning as a “democracy.”
What should we do about the US Senate? Short Answer: Blow it up.
In fact, we need more than a few minor fixes to the American system of government, with its patchwork of compromises that might have made sense in 1788, but makes no sense two hundred and thirty years later.
Consider — problem number two — the way we elect our presidents. The root of the dysfunction here begins with that same catering to the small ‘states’ (nee colonies) that gave us the two-for-all-sizes Senates. It’s called (and you may recall this name from recent events) the ‘electoral college.’
Once again, we are faced with an essentially non-democratic system for choosing an important official, in this case our chief executive. Instead of a clearly democratic election process — one person, one vote, count all the votes and announce the winner — our founding document once more bows to the semi-sovereign states and says, ‘OK, each one of you chooses your electors.’
The framers distrusted the whole idea of ‘democracy’ — a word that etymologically means rule of the people. To late 18th century students of political philosophy, it meant ‘mob rule.’ So state legislators, rather than a popular vote, were given the job to choose the state’s electors. These electors, once chosen, are empowered to vote for whoever they believe are the best candidates for President and Vice-President.
From here, it just gets worse — if, that is, you believe that America is, or ought to be, a democracy. The number of electoral votes each state is entitled to determined by its number of congressional representatives. That is, the number of its Congressmen in the House of Representatives plus those two senators.
As we know from the discussion above, the two-for-each Senate substitutes favoritism for small states over one-person, one vote. Again, folks from Wyoming and Rhode Island are over-represented; Californians and New Yorkers under-represented. Carry this disproportion across the whole country, and you see the structural imbalance that puts a thumb on the scale and creates Presidential victories for one party — the party of the rural white folks who live in the under-populated states — even when the candidate for the other party received more votes.
This is what happened in both 2000 and 2016.
So when popular-vote losers are declared the winner, remember that the “electoral” system was created to allow a privileged few to choose a President. Even when the original electoral process was amended to allow all registered voters into the game, the structural flaw remains a significant injustice.
The latest consequence sits in the White House.
Aside from the habit of a couple of centuries, why should the states (and state governments) have any role whatsoever in electing a President for our national government?
When France votes for a president, do the French sit around worrying which candidate will be awarded a full electoral total from the Left Bank, or Normandy, or the district of Aix-la-Chapelle?
Parliamentary systems choose their chief executive (the prime minister) in a significantly different way, omitting any direct popular vote for competing candidates. But we can keep our our presidential system and directly select our President in an equitable and democratic fashion. We just can’t keep the result hanging on the technicalities devised to meet the local worries and prejudices of the 18th century.
Direct democratic elections do not necessarily produce good presidents — Brazil just elected a monster, whose policies may well bring all human civilization closer to disaster. And popular election gives the Russians Putin. But these are the risks inherent in any system that entitles its citizens the right to participate in choosing a chief executive — i.e., what most people call ‘democratic’ elections. Still, that’s the route most ‘democracies’ choose.
In the United States we have no way of vetting how well we would manage with a direct popular election of our President. We’ve never tried it!
Just as we still don’t have a democratically representative Senate.
A new book by historian Joseph Ellis, titled “American Dialogue: The Founders and Us,” makes the deep point that underlies not only our ongoing problems with holding fair and truly democratic elections, but also many other flaws (with growing consequences) within our governmental structure. With sympathetic and admiring portraits of the contributions of major founders such as James Madison, Thomas Jefferson, and John Adams, the book offers a sensitive, balanced look at the ideas of these early leaders who took part in both the independence movement and the framing of a new political system.
But the founders never expected that their Constitution would be the last word on how the country should be governed. Ellis quotes Jefferson: “laws and institutions must go hand in hand with the progress of the human mind.”
Ellis argues that Madison, who had the most influential hand in the Constitution’s framing, did not expect that the document he midwived should be petitioned — like an oracle of the gods — to provide the answer to every political question the nation would face in the decades and centuries to come. Ellis is particularly critical of the “originalist” judicial theory put forth by conservative judges and politicians that the answers to today’s questions can be found by discovering what the framers really meant by this or that clause in their document; i.e. that there exists a “single source of constitutional truth back there at the founding.”
The Constitution’s framers were not thinking about, and could not have been anticipating, today’s realities and problems. Dealing with current issues and new realities is our job. To say that “the Constitution won’t allow” a single-payer national healthcare system, for example, is absurd. The Constitution gave us fundamental principles and practical institutions, protected by those famous checks and balances, through which to make our own carefully considered decisions in the light of current circumstances.
It gave us — also — a Senate that does nothing but protect privilege.
It gave us a presidential election system that is inherently undemocratic.
It empowered the “several states” with powers that are no longer justified in an age when all Americans are Americans first — not New Yorkers or Texans or Virginians, or Oakies from Muskogee.
And it gave us an opportunity to get to this point as an independent nation, 230 years later, a position from which to do our own thinking and make our own decisions about how to govern ourselves as a democratic nation.
Let’s do it.
