Is the Constitution undemocratic?

While I realize that the title question is a bit counterintuitive (or just silly, depending on your preferences), it becomes an interesting one with a little more context. Saturday, at Outside the Beltway, Steven Taylor published an essay titled The Consequences of Design. I’ll warn you in advance that it’s a very anti-Trump analysis of what the author sees as a potential electoral crisis in November. This would be brought about by a combination of three things: a decrepit election infrastructure, including the Post Office, flaws in the original Constitution, and, of course, the Bad Orange Man and his nefarious plans.

You can read that if you like, but I was more interested in a response on the same site from James Joyner that focuses primarily on the second element in that list. Did the Founders somehow err in crafting our current electoral system, putting weaknesses in it that are only now being exposed in the era of Trump? Here are a few of his key thoughts, focusing primarily on the different structures of the House and the Senate, along with the electoral college and all the baggage that goes along with that.

So, yes, having equal representation in the Senate for all states, regardless of population, is inherently undemocratic. And the error is compounded by the fact that the Electoral College doubles down on this. Further, we legislatively capped the size of the House of Representatives at 435 in 1929 and have kept it there despite the population more than doubling since.

As we all learned in grade school, this was part of the so-called Great Compromise. Because the states came to the convention as sovereign equals in a Confederation, that was the starting point of negotiations. The small states had all the leverage and there was only so much they were going to be willing to concede. And, indeed, having the House constructed on the basis of the populations of the several states was a huge concession.

Likewise, amending the Constitution is absurdly difficult. The main path requires two-thirds of both Houses of Congress to approve a measure, which then needs to be passed by three-fourths of the states. That’s nearly impossible!

If all of that sounds like Joyner is concluding that the Constitution is somehow outdated and not suited to the needs of the 21st (or even 20th) century, you’re not far off. In his concluding paragraph, he describes our constitutional system of government as being one that was “devised to meet the needs of a fledgling nation of 4 million people clustered along the Eastern Seaboard half a century before the invention of the telegraph.” And this system is incapable of meeting the needs of “a continental superpower of 330 million incredibly diverse citizens.”

In order to accept Joyner’s proposition, we have to start with one fundamental assumption. The leaders of the 13 original states arrived at the convention as the representatives of independent entities, closer to being nations in their own right than subdivisions of some larger, national institution. And that’s precisely how they did arrive, flexing plenty of muscle as the details of the new country were hammered out. The smaller states held almost total veto power over the process and they ensured that the upper chamber in the legislative branch would be structured in such a way that those smaller states would share equal power with the larger ones. Joyner further notes that allowing the House of Representatives to be structured based on population was actually a major compromise on their part.

But to accept the idea that the system they developed is now not only antiquated, but dangerously flawed relies on yet another assumption. To accept this, we must believe that the states are no longer equal actors in any way and the smaller states are simply subdivisions of the larger whole. A casual glance at how our country evolved over the next two centuries and more might certainly lead you to believe this to be the case. The vaunted Commerce Clause of the Constitution was put in place because the Founders envisioned times of conflict, not amounting to civil war, but potential trade wars and embargos between the various states. That never wound up happening. (Well… aside from the Civil War part, but you see where I’m going here.)

In reality, both the legislatures and the courts embarked on a rather rapid evolution toward a powerful, central federal government never envisioned by the Founders. Both the Ninth and Tenth Amendments eventually became withered leftovers of a bygone era. The underlying expectation of strong, independent states working in a functional confederation slowly rotted away, leaving only the archaic structures of both the Senate and the electoral college as remnants of that earlier time.

With all that said, I can understand where Joyner is coming from here. But that doesn’t mean that I agree with it. I’m not arguing for trade wars between New York and Vermont over who gets to sell their cheese where, but the independence of the state governments should still be respected inasmuch as possible. If you wipe out those distinctions, then there’s no point in allowing the states to pass their own laws governing matters that don’t run afoul of the Bill of Rights. There’s no point in letting them decide their own state tax rates, minimum wages, or anything else. You may as well just have one standard template for the entire country.

And that’s definitely not what the Founders intended. Those vestigial structures from the era of the Founders (the structure of the Senate and the electoral college) are the last shields left allowing the states to maintain their individuality. Without those features, there’s really no point in even having states. And that’s something worth fighting for.