The US Constitution is Broken

The US Constitution is permanently broken

The American form of government has been amazingly resilient for over 230 years.  It has withstood economic panics, world wars, depressions, do-nothing Presidents, Presidents with delusions of grandeur, incompetent leadership and dazzling leadership.  It has vacillated between Republicans and Democrats, liberals and conservatives, and has always, seemingly intuitively, course corrected when it seemed on the edge of going too far in any direction.  It is a testament to the genius of the Founding Fathers who drafted the Constitution with the zeal of academics grounded by a solid understanding of human nature.

But the Constitution is broken, and it can’t be fixed, at least not easily.

This is the result of a number of cultural forces in American life, coming to a head in the early 21^st century.  The Founding Fathers were (I sincerely believe) geniuses, but even James Monroe couldn’t have envisioned the impact of social media and Fox News.

When the Constitution was formed, the Founders were skeptical of pure democracy and so put a number of safeguards in the document to avoid a “tyranny of the majority” from throttling minority rights.  One of these safeguards was the composition of the US Senate, where each state got the same number of senators despite the state’s relative population.  This was to protect states with smaller populations from having their opinion over-ridden by the more populous states.

Back at our country’s origins, everything was smaller, including the size difference between states.  Let’s look at data from the 1810 census (the third census done after the nation’s founding) to give them a couple of tries to get it right (and only looking at the original thirteen colonies, to exclude newly created states from territories).

state	pop	% of NY
New York	959,049
Virginia	877,683	91.5%
Pennsylvania	810,091	84.5%
North Carolina	556,526	58.0%
Massachusetts	472,040	49.2%
South Carolina	415,115	43.3%
Maryland	380,546	39.7%
Connecticut	262,042	27.3%
Georgia	251,407	26.2%
New Jersey	245,555	25.6%
New Hampshire	214,360	22.4%
Rhode Island	76,931	8.0%
Delaware	72,674	7.6%

The largest state was New York with 959,049 inhabitants, and the smallest was Delaware with 72,674, or 7.6% of New York’s total.  The second smallest state was Rhode Island with a population of 76,931, or 8.0% of New York’s; the third smallest was New Hampshire with 214,360 people, or 22.4% of New York.

Obviously, the spread has gotten wider as the population grew, but the gulf between small states and large states is now a chasm.  In the 2010 census the most populous state was California with 37,253,956 people.  The smallest state is Wyoming with 563,782 people, or 1.5% of California.  To find a state with a population that is 7.6% of California’s you have to go all the way up to Kansas, which is the 33^rd largest state population.  So, the United States now has 17 states with a percent difference in population from the biggest state that is larger than the difference in 1810.  And 1810 had two unusually small states; using the figure from the third smallest (New Hampshire’s 22.4% of New York), in 2010 you’d have to go all the way up to #12 Virginia.  There are now 38 states with a relative population to the largest state that is larger than the spread between the biggest state and third smallest in 1810.

Now the United States has a plethora of teeny tiny little states.  But each of these states has as many Senators as California or New York.  The population of the 26 smallest states, which controls a majority of the Senate, is a little under 51 million, or 16.5% of the nation’s total population.  Yes, 17% of the country’s people control a majority of the Senate.

But wait, as the ads say, there’s more!  Given the fact that there is a correlation between population density and political leaning, then the Senate is effectively gerrymandered for Republican control.  According to the FiveThirtyEight article linked to above, 31 states lean to the right, mostly small, homogenous ones.  The Democrats made large gains in the more representative House of, um, Representatives in 2018, but even with a hugely unpopular GOP President and a motivated Democratic Party, it seems unlikely that the Democrats will take the Senate in 2020.

The skewing of the Senate towards small states also skews the Electoral College, where votes are apportioned by the number of Representatives and Senators. This gives small, conservative states extra influence, which has manifested itself in two Republican Presidential candidates winning despite getting fewer popular votes than their opponent.  Quick, name the last non-incumbent Republican candidate to win the most votes in a Presidential election: if you said Ronald Reagan in 1980, you win the prize.  No GOP candidate has won a Presidential election without the benefit of incumbency in 38 years, yet the GOP have controlled the White House for 22 of the past 40 years.

Maybe you consider this good news.  Maybe the though of permanent Republican control of the White House and the Senate makes you chortle with joy.  Fine.  But it’s not sustainable.  Given the partisanship that currently exists, and is likely to continue to grow, a Democratic Party permanently subjected to minority status by an increasingly radical Republican Party, despite being favored by a majority of American voters, will lead to . . . well, I don’t know what.  Democratic Party control isn’t regional so there can be no secession like the Civil War (unless the coasts can secede from the mid-west and south).  But at some point, and soon, there will be a breaking point.

What is the answer?  I have no idea.  The problem lies deep in the heart of the US Constitution, a document conceived before social media, mass communication, and leaders without souls or morals.  This will take a fundamental re-thinking of the structure of the Government, more than tinkering with the composition of the Supreme Court.  And it will have to be done by leaders who care more about creating a valid system of government than winning political advantage.

The three people in Washington, DC, that qualify can meet in a phone booth, if DC still has phone booths.

Update: A quick clarification based on one of the comments (thanks for the comment!).  George HW Bush won in 1992 as the incumbent Vice President running to succeed a termed-out President, so he was the incumbent in that election.

And while Bill Clinton won in 1996 with less than 50% of the vote, he did get more popular votes than George HW Bush.  So, in the past twenty years, the number of Republicans who won the Electoral College despite getting fewer popular votes = 2, Democratic winners in the Electoral College despite getting fewer popular votes = 0.

And by the way, Clinton got fewer than 50% of the popular vote largely because of third party candidate Ross Perot who, contrary to myth, did NOT cost Bush the election.