It Is Broken But No One Wants to Fix It: A Call for Constitutional Reform

1. It Is Broken But No One Wants to Fix It: A Call for Constitutional Reform

2. Why Americans Fear and Oppose Reform of the United States Constitution • The American Constitution serves as an icon in the American civil religion. • Many scholars question whether a better constitution would emerge from reform, whether pursued through a series of amendments or through a new constitutional convention. What unintended effects would emerge from reforms? • Many Americans believe that the Constitution is the solution, not the problem. Politicians are the problem. • But the familiar trope that I most frequently hear is “The Constitution isn’t broken. And if it ain’t broke don’t fix it.”

4. The Contours of My Argument • The Constitution contains deep structural flaws that cannot be fixed through interpretation or better administration. • Specifically, equal representation in the Senate, the Electoral College, and the amendment process fundamentally violate the constitutional principle of political equality. • The Electoral College also provides an unjust, irrational, and unacceptable means of selecting the President. • In addition to criticizing specific aspects of the Constitution, I also want to urge upon you a different attitude about the United States Constitution and the “Founding Fathers.”

5. What I am Not Arguing • I am not arguing that we need to replace the “long leash” republicanism of the Constitution with a direct democracy. • There are three dimensions of democracy on which the Constitution is normally judged: inclusiveness, responsiveness, and political equality. The United States Constitution fails primarily along the third dimension of democracy, not the first two. • It fails to give every citizen in our country an equal say in the selection of their leaders and it improperly privileges citizens from small states.

6. Some Embarrassing Features of the Constitution

7. The “Natural Born Citizen” Requirement for President • Presidents must be “Natural Born” Citizens. The Framers clearly wanted to prevent foreign monarchs from aspiring to and conspiring to assume the highest office in America. • But what does being a “natural born citizen” mean? Does it mean that to be eligible to become President a person must be born to the parents of American citizens (jus sanguinis) or that they must be born on American soil (jus solis) ?

8. The “Natural Born Citizen” Requirement for President (continued) Is this provision reasonable? Do people who are naturalized to become citizens have less loyalty to the United States or is this a nativistic provision that might prevent us from electing a truly exceptional leader? (Henry Kissinger or Arnold Schwarzenegger) Is there really a threat that the people of the United States will elect an agent of a foreign power or someone who will then betray them to a foreign power? Would this provision be better replaced with a provision that required a person to have been thirty years a citizen of the United States?

9. Residents of the District of Columbia Are Not Represented in Either the House or Senate 588,292 residents of Washington D.C. do not have representation in either the House or the Senate (more than in the state of Wyoming and roughly as many as Vermont and North Dakota). Almost 60% of them are African American and another 10% are Hispanic background. These residents pay taxes. Indeed, residents of D.C. pay more federal taxes per capita than the residents of every state but one. They must also register for military services.

11. “The Great Extortion” • What is celebrated in our textbooks as “the Great Compromise” was really an act of extortion. Small states refused to join the union without equal representation in one branch of the legislature. This was the Sine quo non (“without which, nothing”) presented by the small states as a condition of union. • The small state delegates argued that equal representation was necessary to protect the interests of the small states against a coalition of the large states against their interests.

12. “The Great Extortion” (continued) • James Madison, James Wilson, and Alexander Hamilton argued that the small states were not endangered by a union of the large states. Madison observed that there had been no such alliances of large states against the small states in the Confederation Congress. Madison also denied that states had interests as a result of their size. The objective and real interests that would be represented by the political system, Madison suggested, were the interests of individuals as members of interest groups such as manufacturers, farmers, traders, etc.

13. The United States Senate: The Most Malapportioned Legislative Body in Any Modern Democracy in the World. • The Great Compromise resulted in each state getting two Senators regardless of its population. Population growth and patterns of state settlement have made the United States Senate the most malapportioned legislative body in the world. • This can be illustrated in a number of ways. Approximately, thirty three million Californians elect two Senators and so do approximately 500,000 citizens of Wyoming. Wyomingians thus have almost seventy times the voting power of Californians with regard to electing a Senator.

14. Our Malapportioned Senate (continued) • Senators representing as few as 17% of the American population may make up a majority in the United States Senate. Four states – New York, Texas, Florida, and California – have 26% of the American population but only 8 of 100 Senators. • Often the “Majority Party” represents a minority of the American population. Until the 2006 elections, Republicans held 55 Senatorial seats and Democrats 44 (with one Independent). Democratic Senators, however, “represent states with a total population of roughly three million more persons than do Republicans (splitting the population evenly in the cases of states represented by one Democrat and one Republican.” (Levinson, Our Undemocratic Constitution, 53). The reverse has also been true in American history. • Malapportionment is growing as the largest states continue to outpace smaller states in population growth.

15. The Consequences of Equal Representation: The Small State Advantage • Citizens in small states expect and receive much more personal contact with their Senators than those in large states. Citizens in small states are more likely to ask for help from their Senators rather than simply expressing their opinions. • Senators in small states have much more direct and intimate contact with their constituents. • Senators in small states face less competitive elections and do not need to spend nearly as much time on fund raising. • Senators from small states thus have more time to govern- to serve their constituents and to serve in leadership positions. • Citizens from small states receive greater benefits from the national government than citizens from large states. Porkbarrel legislation is hardly exclusive to small states, but for a variety of reasons they generally benefit more from pork than large states. E.g. the bridge to nowhere. • They receive greater per capita benefits across a range of governmental programs. Indeed, federal revenues from all sources are redistributed from large to small states. E.g. Distribution of Funds from the Federal Gas tax and Distribution of Homeland Security Funds.

16. Distribution of Federal Gasoline Tax Revenues • The wide gap in the distribution of gas-tax money should be enough to make some taxpayers see red. Alaska, for instance, receives $6.60 for every dollar paid in federal gas taxes; Texas gets 86 cents on the dollar. • Alaska $6.60 District of Columbia $3.53 3 South Dakota $2.28 4 Hawaii $2.23 5Montana$2.22 6North Dakota$2.17 7Rhode Island$2.17 8Vermont$1.83 9West Virginia$1.69 10Delaware$1.60 11Idaho$1.46 12Connecticut$1.4113Wyoming$1.40 14New York$1.21 15Pennsylvania$1.17 16New Mexico$1.12 17Nevada$1.08 18New Hampshire$1.08 19Minnesota$1.07 20Utah$1.07 21Wisconsin$1.05 22Iowa$1.03 23Alabama$1.02 24Arkansas$1.02 25Kansas$1.01 26Oregon$1.01 27Maine$1.00 28Washington$0.99 29Mississippi$0.98 30Nebraska$0.97 31Illinois$0.96 32Maryland$0.95 33Massachusetts$0.95 34Virginia$0.95 35Colorado$0.93 36Missouri$0.92 37California$0.91 38Kentucky$0.91 39North Carolina$0.90 40Tennessee$0.90 41Indiana$0.89 42Louisiana$0.89 43Ohio$0.89 44Arizona$0.88 45Michigan$0.88 46Oklahoma$0.88 47South Carolina$0.88 48New Jersey$0.87 49Florida$0.86 50Georgia$0.86 51Texas$0.86Source: Federal Highway Administration. Data based on a five-year average from 1998-2002. It includes discretionary funds.

17. Disadvantages to Racial Minorities from Equal Representation in the Senate • African Americans and Hispanics are concentrated in the four largest states in the nation (NY, CA, FL, and TX). Since large states get the same number of Senators as small states, the votes of minorities influence the selection of a relatively few number of Senators. • Equal Representation in the Senate effectively serves as a form of white gerrymandering. Historically, minorities have a more difficult time securing election when the electorate is large and when they are not a majority in the district. State electorates fit these patterns. Even in the large states where they are concentrated, minorities are not a majority. In most small states, they are a very small percentage of the population. In United States history, there have been three African American Senators popularly elected to the Senate and an equal number of Hispanics. There have been over 100 African American representatives.

18. The Electoral College: Is This Any Way to Elect a President? • The Mechanics of the Electoral College • Number of Electors = Number of Representatives plus Senators. • 538 Total – 270 to win • Winner take all except in Nebraska and Maine • Popular Vote is a meaningless statistic and not even a constitutional requirement. State legislatures determine the way in which the states electoral votes are allocated. Also, the current “popular vote” statistic does not reflect a true national popular vote. It is an aggregated vote of the 50 states and DC, not necessarily a true count of the way that people would vote in a national direct election. • The exaggerated fear of “Faithless Electors” • Failure to Win 270 results in Election by the House of Representation

19. The Debate Over the Electoral College is not about Original Intent • Original Intent was to insure a choice by a judicious group of enlightened statesmen. • Enhance small state and slave state influence • Diminish the problem of regional loyalties and insure the selection of an individual of national reputation. Part of the Delegates’ goal was to overcome the problem of loyalty to a “Native Son.”

20. The Case for the Electoral College • Direct Election Would Lead to Geographically Narrower Campaigns. Rural states and counties would receive no attention. • “Fifty Floridas”: Election–Fraud Concerns and the necessity of multiple recounts. • Would lead to a multi- candidate, multiparty system. • Candidates seeking publicity would run and turn the election into a farce. • Would result in “weaker” (less legitimate) Presidents who would receive only a small percentage of the national vote.

21. “Is That the Best That You’ve Got?” Sam Gibson

23. Response to this Parade of Hypothetical Horribles Against Direct Election of the President • The Electoral College leads to narrow campaigns. Confines campaigning to “battleground” and “swing” states. • Electoral College discourages campaigning in significant rural areas in large states, especially Texas, California, and New York. • Direct Election will discourage the search for voter fraud. E.g. the 2000 Election. • Electoral College actually strengthens third party candidates when compared to national direct election. With the Electoral College, a strong third party candidate (especially one with strong regional support) could throw the election into the House of Representatives.

24. “In a system of direct election where every citizen’s votes are given equal weight, presidential candidates will be even more eager than they are now to win votes wherever they might be available; and the closer they expect the election to be, the more eagerly they will search out those votes.” Robert Dahl

25. Real and Realized Negative Effects of the Electoral College • Small state voters cast weighted votes • Election of the President who did not win the popular vote • Tyranny of the Majority in the States in which one political party is dominant.

26. The Amendment Process: Minority Power in the Supposedly Super-Majoritarian Process Mechanics of the Amendment Process Amendments can be proposedupon the assent of two-thirds of members presented in both houses of Congress or by a special convention called upon the request of two-thirds of the states. Ratification requires passage either by three-fourths of the state legislatures or by special conventions held in three-fourths of the states.

27. “The most difficult to amend of any constitution currently existing in the world today” • There have been over 10,000 proposals for constitutional amendments proposed in Congress. There have only been 27 amendments to the Constitution. • A small minority of nation’s citizens may block or propose and ratify amendments or even call a constitutional convention. As it has been historically exercised, the amendment process has given power to the small states to block amendments. • Shouldn’t it be hard to amend the Constitution? Yes, but it should not place arbitrarily place undue power in the hands of people from small states.

28. Tilting at Windmills: Proposals for and the Prospects of Constitutional Reform • Reform of the Equal Representation in the Senate • What Kind of Reform? Abolish the Senate or Greatly Diminish Its Powers? Divide the Large States? Some scheme of more equal apportionment? • Barriers: There is no widespread discontent about the Senate or knowledge of the consequences of equal apportionment in the Senate. • The Unanimity requirement of Article V: “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” • Reform of the Electoral College – Proposing or Imposing Direct Election • Cannot pass the regular amendment procedure despite support by a substantial majority of Americans. • Prospects of the Interstate Compact.

29. Reasons for Thinking about Reform Even Though Reform is Unlikely • Faith in the possibility of public reason. People can be persuaded to adopt reform. • Illuminates the character of our regime and gets us to think about our foundational constitutional values. Political Equality Versus Federalism • Develop a more reflective, mature, and healthy understanding of the Framers and the Constitution.