Disregard for the Constitution? That’s on Us.
Many people love to hate the Constitution these days. (It’s not democratic enough! It was created by racist, white men! It envisions an oligarchy! It undermines government today!) Progressives in particular increasingly demand sweeping revisions to our founding charter, so as to align it more closely with what they take to be the nation’s contemporary values.
As a matter of civics education, this is not a good idea. One of the great advantages of our Constitution is that it remains an eminently readable document. The average person can read and comprehend it during the length of time between dinner and bedtime. Its prose, while dated, is still crisp, thanks in no small part to the stylings of Gouverneur Morris, who led the committee that transformed the rough draft of the Constitution into its polished version. And this accessibility enhances the republican quality of our government. Compare the federal Constitution to the state constitutions, which are overlong and overladen precisely because they are so easily amendable. Nobody can practically read the constitution of Illinois—nobody except lawyers getting paid to do so would even try.
The practical reality is that the Constitution is a very hard document to amend. In the 236 years since the Constitutional Convention of 1787, it has only been altered 27 times, including the original 10 amendments in the Bill of Rights. One of them (the 21st Amendment) negated another (the 18th amendment), correcting the policy mistake of Prohibition. Most of the remaining 15 amendments were either modest adjustments to the process of government or expansion of the scope of civil society. There has only been one major change to the way the government functions: the 17th Amendment, allowing the direct election of senators.
For good reason. Besides keeping it accessible for the people—a major concern of the framers—the Constitution privileges consensus. The animating idea behind its rules for government is that the larger, broader, and more durable majority, the more power it will should have to govern. The framers’ thinking was that such majorities are likely to operate in the interest of the whole community, rather than just a faction within it. Conversely, small, narrow, and fleeting majorities are less likely to have the public good in mind and will usually face gridlock. As the stakes for governance become higher, the supermajority requirements in the Constitution tend to increase, which is why it is so hard to change the document itself. Alterations to a community’s fundamental law should be approved by the vast majority of the community. Such majorities are rare, so the Constitution is rarely amended.
Critics of the Constitution complain that this is unfair—a trap set by the framers to lock us in 1787. That certainly was not their motive, and it’s worth noting that the framers established that burden for themselves. The Constitution lacked the force of law until it was ratified in nine of 13 states (more than two-thirds, a supermajority) and nobody was subject to it until their own state had ratified it.
In other words, the American people in 1788 and 1789 found the common ground that we today claim cannot be found. Maybe our inability to achieve consensus is an “us” problem, not a “they” problem.
In fact, we often do not need to change the Constitution to effect the political outcome we desire. Many aspects of our system could be transformed without touching the Constitution. And as we consider what ails our body politic, it makes sense to prioritize the least drastic ways to cure it.
For instance, many progressives bemoan that the Electoral College elected “minority” presidents—or presidents who won an Electoral College victory despite having lost the popular vote—twice in the last 20 years. In 2000, the gap between Al Gore and George W. Bush was so narrow Gore could have conceivably won the Electoral College but lost the popular vote. Not so in 2016, when Hillary Clinton won the popular vote by millions of votes but lost the Electoral College. And if Donald Trump were to defeat Joe Biden next year, there’s a good chance he would do so while losing the popular vote.
Progressives are not wrong to be upset about this. “Minority” presidents are excusable in the case of a virtual tie like 2000, but they’re otherwise a violation of what James Madison in Federalist 10 called “the republican principle, which enables the majority to defeat” a faction “of less than a majority.” But this doesn’t mean we should abolish the Electoral College. There are less dramatic ways to ameliorate the problem of minority presidents. For one, we could expand the House of Representatives.
Expanding the House of Representatives would actually make it more representative. That would be a good thing. The total number of House seats was capped at 435 over 100 years ago, and the typical House district now has more people in it than the largest state in 1787. To say that a single individual can meaningfully represent three-quarters of a million people—the average size of a House district—might work for the Senate, which is supposed to bypass swings in public opinion, but not for the House, which is supposed to be responsive to the people. A 435-member House is hardly stretching the bounds of practicality. After all, the British House of Commons and the German Bundestag both have more members than our House.
A larger House would also redistribute political power in the Electoral College to the more populous states, as they would get the additional House seats and therefore more Electoral College votes. For instance, we might cap the number of House seats by formula, such that the least populous state sets the maximum number of people in a district. Right now, that would be Wyoming; if each House district was the size of the Equality State, that would yield a House of approximately 573 members—still less than the Commons or the Bundestag. A larger House would also mean a larger Electoral College, and more political power for the more populous parts of the country, while still keeping the historic role the small states have enjoyed. The framers themselves preferred a continuous expansion of the House, and one of Madison’s proposed amendments in the Bill of Rights would have set a very low ceiling for House district sizes.
Expanding the House seems like an obvious improvement to our current arrangement, but one small group never mentions the idea: current House members. After all, the power of each individual House member would decrease as new seats are added, but it’s the height of cynicism to ignore the solution, especially for those liberal Democrats in the House who complain about the Electoral College. But the fact that our political leaders refuse to do what the framers did, keeping the House growing with the public, means that this is an “us” problem, not a “they” problem. Expanding the House doesn’t require a constitutional amendment; it requires a policy update.
Such a solution could be paired with reforms to how Electoral College votes are apportioned. The overwhelming majority of votes—527 out of 538—are apportioned on a winner-take-all basis. That means, for example, that a candidate who wins Wisconsin gets all 18 of its electoral votes, even if he or she carries the state by just a single vote. Only Nebraska and Maine operate differently, allocating electors in part based on whether candidates win the House districts in the state. The winner-take-all rules create massive “vote sinks,” especially for Democrats in California, where their oversized victories do not add any extra Electoral College votes.
But there is no constitutional reason for winner-take-all presidential elections. In fact, in the early decades under the Constitution, many states allocated electors in some kind of proportional manner. Why not do that now?
Getting rid of winner-take-all presidential elections would make the final Electoral College vote more reflective of the popular vote. It would also incentivize presidential candidates to pay more attention to states that aren’t purple. Importantly, the reform depends on Democrats and Republicans initiating the reform altogether. If Democrats were to allocate, say, California’s electors on some kind of proportional basis, but Republicans in Texas do not respond in kind, then Democrats would suffer a decisive blow to their presidential prospects. The same is true if Republicans were to act but Democrats did not reciprocate.
That might be politically inconvenient to do, but that is a testament to the failures of political leadership in 2023, not of the Constitution. The framers deferred questions of electoral allocation to the states as part of their overall pursuit of federal power-sharing. If political leaders choose to do so in a way that works to advance partisan advantages rather than benefit the whole political community, once again that is an “us” problem, not a “they” problem.
And what about the Senate? Critics of the Constitution complain bitterly that it’s a countermajoritarian institution that slows down the tasks of governance. And in part, they’re correct. The framers intended the upper chamber as a compromise between the populous and less populous states—and they were wise to do so.
In a nation as geographically large as the United States, simple majoritarianism would be dangerous. Political power would easily accrue in populous areas, leaving people outside high-density enclaves left to the rule of those within. Would the people in the disfavored places remain loyal to the regime? Maybe for a while. But free government ultimately requires the consent of the governed, which in turn requires the governed to believe that their interests are meaningfully reflected within its institutions. To hold a large country like ours together, we must make sure every place feels included. The Senate helps us accomplish that task: It’s both a geographical check on the House and the forum in which less populous places have a meaningful say in the formation of public policy.
Some may argue that the Senate has accrued too much power, especially through the courts. Again, a fair point. The courts wield vast power, and the Senate—by virtue of its authority to advise and consent on presidential nominations to them—serves as a major chokepoint on judicial authority. But in the original constitutional schema, the judiciary was far less powerful than it is today.
We have allowed the Supreme Court to grow its power by an order of magnitude over the last century, in ways that many of the framers, especially Madison, would downright detest. There is nothing in the Constitution that requires this. The Court has seized power in fits and starts, but ultimately the other branches have allowed it to do so. Perhaps retaking power from the courts, and returning it to the states or the political branches of the federal government, is a viable alternative. Maybe we need to reimagine the Court’s role in public life more as the framers did, giving it final say on individual cases and controversies, but expecting it to defer to the people on significant matters of community life. Once more, our problems are an “us” problem, not a “they” problem.
Pretty much everybody in this country—left, right, and center—agrees that our political system is deeply dysfunctional and in need of significant reforms. Maybe, in some instances, reform does require alterations of the Constitution. But when we think about many of our challenges, we can see that something less than an amendment is necessary. The problem is not with the Constitution, which does little more than set the basic framework of politics, but in how we have gone about filling in the details over the years. And our Constitution, with its simple and clear prose and its provisions that have generally worked so well for over 200 years, is a blessing. We shouldn’t adjust it when we don’t have to. Insofar as we can fix our problems without recourse amendment—and usually, we can—that is the course of action we should take.
