Our Constitution Is No Longer Working For Us

The following is the first installment in a TPM series, “Not Safe At Home: Solutions For Our Democratic Crisis.” As America battles the coronavirus, this series takes a look at fixes the next Congress and President should consider to how our democracy works — ideas that predate the coronavirus, and that will resurface after it has passed. 

One of the truly exceptional things about American constitutional discourse is that so much attention is paid to the Framers and to their presumptive views. Presumably serious people ask, “What would Madison, Hamilton” — or whoever else might be a favorite — “do?”

So let me play my own version of this game by asking if the Framers would necessarily share in the remarkable veneration that is paid to them and their handiwork, the United States Constitution.

The answer, I believe, is almost certainly not. One need only point to the presence in the Constitution of Article V, a clause that explicitly contemplates the possibility of amendment (and that was used to add twelve amendments in the first 15 years of the new government). Equally telling, though, is a letter written shortly after the Philadelphia Convention by George Washington to his nephew Bushrod (who would go on to become a member of the Supreme Court some thirty years later). The man aptly named “the Father of our country” freely noted that even the “warmest friends of best supporters” of the new Constitution “do not contend that it is free from imperfection.” It was the best the delegates in Philadelphia could come up with, given constraints of time, climate, and, most importantly, deep political cleavages between small and large states and between slave and free states. These limitations required what many delegates rightly believed were awful compromises defensible only (if at all) by the realization that they were necessary to writing a Constitution on which all could agree.

The two most obvious such examples are the so-called Great Compromise by which the larger states acceded to the demand by smaller states for equal voting power in the Senate and the compromise with slaveowners and their states. As to the former, Madison described it as a “lesser evil” to having no constitution at all, though he was in fact tempted to walk out of the convention himself. But an “evil” remains such, even if one must swallow hard and submit to what is thought to be its necessity. And, of course, it took the sacrifice of 750,000 lives between 1861 and 1865 to generate the end of what we now universally recognize as the evil of slavery and the beginning of what was in fact a highly imperfect attempt at regime change, which we know as Reconstruction.

After the imperfect Constitution was crafted, George Washington acknowledged in his letter that future generations would be able to update the document. “I do not think,” he wrote, “we are more inspired, have more wisdom, or possess more virtue, than those who will come after us.”^[1] In emphasizing what were often called the “lessons of experience,” Washington most clearly identified himself with the empiricist thrust of American political thought. This spirit is captured at literally the very beginning of the first of the 85 essays we know as The Federalist, where Publius (Hamilton) says that what makes Americans so exceptional and historically significant is their ability to engage in “reflection and choice” about how they wish to be governed, instead of submitting to whatever has been handed to them. My own favorite paragraph of the entire collection is the conclusion of Federalist 14, in which Publius (this time Madison) writes that the “true glory of the people of America” is that “they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience.” Madison praised his fellow Americans for forming “the design of a great Confederacy, which it is incumbent on their successors to improve and perpetuate.”

This typified the attitude of a generation that not only rebelled against British rule, but also felt free to denounce the system put into place by the Articles of Confederation in 1781 as “imbecilic” and to advocate for (and attain) the radical overturning of the status quo in favor of a far different governmental design.

So, frankly, we are most faithful to the spirit — and I would say the audacity — of the founding generation when we apply a similarly critical eye and ask how well we are being served today, well into the 21^st century, by the Constitution designed in 1787 and amended only minimally.

I would say that we are not being served very well at all. In fact, when I am asked, as is the case more and more frequently these days, if we are in a “constitutional crisis,” my answer is that the Constitution itself is the crisis. The malaise that afflicts contemporary American politics — where an overwhelming percentage of the population expresses disdain for Congress and believes the country is headed in the wrong direction, not to mention the fact that we’ve debated impeaching a president for the third time in less than fifty years — is attributable in part to the deficiencies of the 1787 framework. This is obviously not to deny the importance of many other factors, like a global economy and rising inequality and anxiety among the middle class, the ever-increasing role played by big money in politics, the corrosive role of social media, the continuing costs of our legacy of slavery and white supremacy, and, of course, the existential threat posed by climate change. But it would be a mistake to ignore the Constitution itself, which was “rigged” in 1787 to make it unusually difficult to actually pass legislation and otherwise confront the great problems of the day.

We are taught to fixate on the threat of the “tyranny of the majority,” but as real as that sometimes can be, that way of thinking ignores the threat of the “tyranny of minorities,” which benefit from maintenance of the political status quos. Candidates run for president promising major changes, for example, without ever once confronting the fact that Congress is structured in order to make it difficult, if not politically impossible, for these changes to be realized (short of attempts to push the envelope of executive power in ever more extreme directions).

The most obvious example of minority tyranny is what Madison accurately recognized as the “evil” of the United States Senate. In 1787 there was a 17-1 ratio between the then-largest state (in population), Virginia (assuming one counted slaves), and the smallest, Delaware. Today, California, approaching 40 million residents, has the same voting power in the Senate as does Wyoming, with less than 600,000 people. Vermont, with about 650,000, balances Texas with its approximately 28 million. As a matter of fact, more than half the American population now live in 9 states, represented by a total of 18 senators. By definition, this means that the remaining number, a minority, live in 41 states that receive 82 of the 100 senators. Demographers are predicting that by 2040, a full 70 percent of the population will live in fifteen states. This means, of course, that the remaining thirty percent will enjoy 70 percent of the votes in the Senate. There is no defense for this imbalance. It not only violates any notion of the “one-person/one-vote” that the United States Supreme Court announced as the fundamental principle of state legislative institutions back in 1964 by essentially serving as a gigantic affirmative action program benefiting the residents of less populous states. It also turns out to be a tremendous boon to white voters who are, frankly, fearful of the increasing urbanization and cosmopolitanism of the United States and of the people who live in cities.

So, generally speaking, there is a good explanation for the fact that the United States Senate has, with rare exceptions, been the place that civil rights legislation goes to die. That was true in 1890, when Reconstruction breathed its last gasp as the Senate refused to consider and pass a bill that would have given the federal government real power to resist discrimination (and terror) against African-American voters in the states of the former confederacy; it is still true in 2019. Much is being written, and justifiably so, about the suppression of minority voters in such states as North Carolina, Georgia or Texas. But the grim fact is that no such suppression is needed in the states where non-whites comprise too small a voting population to be a major factor in elections.

The anti-democratic aspects of the Senate are reflected in the Electoral College, where small states get a disproportionate share because their votes include the two senators on top of the number of representatives they are assigned following the decennial census. Even more important, however, is that Article V itself, by requiring that congressionally proposed amendments get two-thirds of the votes in both the House and Senate, and then three-quarters support from all 50 states, assures that almost no significant change is actually possible. The United States Constitution is the most difficult to amend overall, both in the world at large and, just as importantly, in the United States itself, given that the 50 state constitutions make amendment considerably easier. At the national level, a serious constitutional amendment, especially if it concerns the basic structures that limit us today, seems quixotic, an almost certain waste of one’s scarce resources of time, money and energy. In a terrible inversion of the sensible adage, “If it isn’t broken, it doesn’t need fixing,” we seem to have adopted the view, “If it can’t be fixed, as a practical matter, then let’s pretend it isn’t broken.”

There is so much more that could be said about what reflection and lessons of experience could teach us about our system of governance. But the major point should now be obvious: As much fun as it might be to focus on the particular heroes and villains among our would-be leaders, the over-personalization of politics blinds us to the fact that our politics are dictated and limited by the structural frameworks established in 1787. Avoiding the implications of that fact is like fish swimming in an ever-more polluted ocean focusing all of their attention on predators like sharks. Fish may in fact lack our intellectual and organizational capacities to think more structurally. We have no such excuse.

Sanford Levinson is a professor of government at the University of Texas and holds the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law at the University of Texas Law School.

[1] Letter of George Washington to Bushrod Washington, November 10, 1787, in Michael Kammed, ed., THE ORIGINS OF THE AMERICAN CONSTITUITON: A DOCUMENTARY HISTORY 83 (1986), quoted in Sanford Levinson, RESPONDING TO IMPERFECTION: THE THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT 3 (1995).