The Constitution Is the Crisis

The system is rigged, and it’s the Constitution that’s doing the rigging.

The Democrats running for president this year seem to be converging on a new and notable consensus for the party: Innovative policy ideas are not enough. The “system” needs reform. Most notably, several candidates are strongly—and correctly, in my view—calling for the elimination of the Electoral College. Some candidates have also gotten behind proposals to pack the Court and to eliminate the filibuster, all strategies for overcoming what they see as a fundamentally dysfunctional system of government.

But hovering over the Democratic debate are incredibly tough circumstances for any structural reforms at all. After all, whatever presidential candidates may promise, they must surely know how weak the powers of the presidency are, especially with regard to domestic issues, unless there is a fully cooperative Congress. Had Hillary Clinton won the presidency (and Mitch McConnell remained majority leader of the Senate), there is no reason whatsoever to believe that she would have been successful at attaining any of her objectives, save for those that might have been achieved through pushing the envelope of executive power every bit as much as President Donald Trump has.

And that, too, is a big part of the problem, for a very simple reason going back to 1787: The Senate violates any principle of “one person, one vote” that ostensibly structures the American polity at least since the “reapportionment revolution” of the 1960s. Gerrymandering, of course, grievously affects the House of Representatives, but the Senate’s disproportion is, quite possibly, worse. Just nine states—meaning 18 Senate votes—are home to roughly 52 percent of the American population. The remaining 41-state minority enjoys 82 votes. By 2040, it is estimated that 70 percent of the population will live in 15 states—30 Senate votes—while the remaining 30 percent of Americans will have 70 senators. The presence, and importance, of the Senate thus raises fundamental issues of political legitimacy akin to those raised by American patriots in 1776 who rejected the authority of the British Parliament.

The upshot of all this is that perhaps the most fundamental question facing the United States today, especially for those who correctly argue that the system is “rigged” in favor of maintaining an untenable status quo, is the extent to which the Constitution itself does much of the “rigging.” One might well speak of a “constitutional crisis,” but one should recognize that it is the Constitution itself that is the crisis. The question, then, facing the United States today is simple: Can the Constitution be fixed?

Any discussion of “structural reform” that includes reference to the Constitution itself runs up against the harsh reality that Article V—the section of the Constitution that lays out the process for amending it—makes doing so, practically speaking, nearly impossible. The reason is not only that it is very difficult even to propose an amendment; it is even more difficult to get one ratified after proposal. Although Article V provides for a convention triggered by a petition of two-thirds of the states, one has obviously never occurred. All amendments that have ever been successful were proposed and then approved by Congress before being sent to the states. An “Article V Convention” would allow an end run around Congress inasmuch as the convention could propose new amendments, but those, too, would need to be submitted to the states, and three-quarters of them would have to agree before an amendment would be ratified. Clearly, none of this is easy to do. If one imagines the amendment process as a game, one would clearly prefer to play defense rather than offense. Think only of the thus-far-failed Equal Rights Amendment, for which support in Congress and in a hefty majority of the states with a majority of the population was irrelevant.

In addition to the barriers set out by Article V, one might emphasize the degree to which the national Constitution, unlike its 50 state counterparts, is revered and often treated as the equivalent of a sacred text. But, even so, one can wonder if the country might have a more serious (and long overdue) discussion of the need for constitutional reform if doing so were thought to be possible. Of course, it is not only the case that the country could do better in terms of a serious public discussion. It in fact did do better a full century ago, when, in the span of less than a decade, the country ratified four amendments.

The country celebrated Constitution Day earlier this month, on September 17. I am quite happy to celebrate the Framers themselves, but that is very different from mindless endorsement of their handiwork. America today seems utterly unable to emulate what is truly most admirable in the model they set for us—their audacity in rising up first against British oppression and then against what they described as the “imbecility” of the Articles of Confederation, America’s first (and almost completely forgotten) constitution. They had no illusions that they were creating a perfect political order. And yet, the public treats them as demigods who must be followed blindly more than two centuries later. They knew better, and so should we.