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Can We Make the Constitution More Democratic?

Recent years have seen a revival of proposals to reform the Constitution in order to make it more democratic. University of Texas law professor Sandy Levinson has recently published a prominent book on the subject, as has well-known political scientist and pundit Larry Sabato. In our contribution to a symposium on constitutional reform , William and Mary law professor Neal Devins and I raise some questions about both the desirability and feasibility of proposals to democratize the Constitution. Here's an excerpt from the abstract:

Recent years have seen renewed calls to revise the Constitution to make it more democratic. Unfortunately, efforts to "democratize" the Constitution face serious obstacles that advocates of reform have largely ignored. In particular, they have failed to grapple with the reality of widespread political ignorance, which both reduces the extent to which the Constitution can ever be fully democratic and makes the reform process more difficult.

Part I of this article notes that advocates of "democratizing" the Constitution rarely specify the theory of democratic participation they would like the Constitution to conform to. This is a very significant omission. There is more than one theory of participation and different theories have widely divergent implications for constitutional reform. Some theories such as "deliberative democracy," imply a much higher level of political knowledge in the electorate than is likely to be feasible in the foreseeable future....

Part III considers the implications of political ignorance and substantive concerns for the actual process of constitutional change. Widespread ignorance is likely to reduce the quality of constitutional reforms that can be instituted, since it might lead voters to support deeply flawed institutional reforms and create opportunities for manipulation by political elites. These dangers are heightened by the reality that any major constitutional changes are likely to occur as a result of a major political or economic crisis....

FantasiaWHT:

Part III considers the implications of political ignorance and substantive concerns for the actual process of constitutional change. Widespread ignorance is likely to reduce the quality of constitutional reforms that can be instituted, since it might lead voters to support deeply flawed institutional reforms and create opportunities for manipulation by political elites.


And this is different than the current system how?
10.24.2007 10:21am
Ralph Phelan (mail):
First questions first: Should we?

When the thing was first designed avoiding being "democratic" was considered a feature, not a bug. I see no reason to change this view.
10.24.2007 10:27am
Oren (mail):
Yeah, the lack of women's suffrage was also considered a "feature" at the time. Perhaps there was no reason to change that either?

PS. Reminds me of an episode of "The Man Show" in which the hosts convinced a significant fraction of women at a fair to sign a petition calling for the end of women's suffrage - comedy gold.
10.24.2007 10:38am
Robert Lutton:
Only professors think that you need to be such a big expert about things. I am an expert on software and technology but the CEOs and company presidents that I sell too are not...but that doesn't stop them from making shrewd decisions.

IMHO the obstacle to making the constitution more democratic is not ignorance. It is the fear of losing an advantage. For example, it is clear that the small or thinly populated states (there are seven with populations under a million) get far greater representation than the states with higher population.
California's two senators represent 35 million while Montana has little more than 500,000.

This is blatantly undemocratic, but changing it would be resisted by those who would lose their privelige and more importantly by those who think that their side in the partisan struggle would suffer.

Ignorance has nothing to do with it.
10.24.2007 10:45am
Sk (mail):
This may be a quibble, but the question itself is incoherent. The constitution is a document. It is impossible to be democratic, authoritarian, or otherwise. I assume (from little hints here and there in the post), that what you are studying is making constitutional change more democratic.
Or is that correct? Perhaps you mean making constitutional interpretation more democratic?
Or do you mean making decisionmaking embodied within the constitution more democratic (i.e. determination of rights subject to vote rather than by judicial oversight)?

Agree with the other posters-with my caveat.
First question, What do you mean by making the 'constitution' more democratic?
Second question: Should we?
Should we make constitutional interpretation more democratic?
Should we make constitutional change more democratic?
Should we make application of constitutional rights subject to popular oversight?
Third Question: If yes, how do we go about doing so?

Sk
10.24.2007 10:46am
Houston Lawyer:
Doesn't making it more democratic mean throwing it out in toto? If we can vote on anything and everything, what's the point of having a constitution at all?

If you put the first amendment, as currently interpreted, up for a vote, it would lose. On the other hand, this wouldn't be that much more dangerous than having judges just make up the law as they go.
10.24.2007 10:50am
Ilya Somin:
Doesn't making it more democratic mean throwing it out in toto? If we can vote on anything and everything, what's the point of having a constitution at all?

Making it MORE democratic doesn't necessarily mean making it COMPLETELY democratic.
10.24.2007 10:53am
Ilya Somin:
And this is different than the current system how?

The article specifically focuses on problems with proposals to change the current system.
10.24.2007 10:55am
Ilya Somin:
This may be a quibble, but the question itself is incoherent. The constitution is a document. It is impossible to be democratic, authoritarian, or otherwise.

That is not a very powerful distinction. By that standard, the Communist Manifesto can't be communist, because it's just a document and can't have any ideology. The point is taht the COnstitution mandates certain rules and institutions and those rules could (potentially) be changed in a more democratic direction - or at least so reformers argue.
10.24.2007 10:57am
Dave in the Corn (mail):
Look at Sen. Baucus' vote against a Rep. for DC - he didn't vote against it for constitutional reasons. He voted against it because it would dilute Montana's representation in the House...
10.24.2007 11:03am
Virginian:
While our constitution may be less than perfect, it is clearly one of the most effective, prescient, and well written governing documents in the history of mankind. I have ZERO faith that any of our current politicians could successfully improve it (if they tried some major re-work), and have every confidence that they would completely f**k it up if they tried.

Fortunately, the very smart dead white men who wrote it knew that too many politicians would try to mess with it so they made it very difficult to do so.
10.24.2007 11:05am
Arkady:
Wouldn't abolishing the Electoral College, in favor of the popular vote, count as moving the Constitution in a more democratic direction? The rocks and shoals of political ignorance don't seem so dangerous here.
10.24.2007 11:08am
Andrew Paterson (mail):
This brings to mind Winston Churchill's remark(remebered roughly as):" Democracy is the worst form of government...except for everything else."
10.24.2007 11:17am
Adam J:
Um, Houstan Lawyer, throwing out our system of rules and laws in total would make us an anarchy, which is definately not a democracy. The "ideal" democracy is one where there's still laws, but everyone has an equal voice in creating them. Of course, this ideal becomes less feasible when some people are less educated and can be "tricked" into voting for laws that are less favorable to themselves.
10.24.2007 11:24am
Temp Guest (mail):
I'm with Virginian. In fact, prior attempts at democratizing the Constitution have usually had unfortunate unintended consequences. An example would be the popular election of Senators which has converted the Senate from a deliberative body to a place of popular representation, which it is not designed to be. This explains much of the current political difficulties regarding the Senate's oversight of Court and other Presidential appointments, approval of treaties, supervision of the President's control over foreign relations, etc.
10.24.2007 11:24am
Unintended Consequences:
If anything, I would propose the requirement that all eligible citizens be required to vote, subject to draconian penalties.

But wouldn't that make our system less democratic?
10.24.2007 11:30am
Tony Tutins (mail):
My main objection to more democracy is the tyranny of the majority. Everybody likes democracy, but few want mob rule. A more democratic country might look much like the fifties, with colored drinking fountains, criminal penalties for sodomy, and back-alley abortionists -- all enacted by the legislature and struck down by anti-majoritarian courts.

And, although the U.S. has had some less-than-optimum leaders, only a direct (parliamentary) democracy democracy could have elected a leader like Hitler. Under parliamentary democracy, even a free country like Britain lurched from free enterprise to nationalizing every industry to privatizing the post office. Our current form of government is stable, predictable, and fairer to minorities.
10.24.2007 11:34am
DDG:
I always understood that the Constitution was designed to be "undemoctratic", we're a republic, not a democracy, etc.

Abolishing the Electoral College would make the Constitution more "democratic" in the sense that it would provide for nationwide popular election of the President. But it would radically change the way politicians campaigned. For example, they would never go to small states and would, instead, try to accumulate as many votes as possible in large states and particularly urban areas, rather than just get 50.1% in those states. They'd spend most of their time in big cities in big states, like NYC, LA, Chicago etc. To put it another way, GWB would have campaigned like crazy in Texas and Kerry would have campaigned like crazy in NYC.

As a practical matter, you'd never see such a change under the current political environment -- the small states would fight it and Republicans would fight it because the advantage such a change would give to Democrats.

I love the way our Constitution pits various power groups against each other ...
10.24.2007 11:37am
AnonLawStudent:
@ Adam J:

Your concept may indeed be the "ideal democracy," but it is far from the ideal form of government. If one goes beyond simplistic notions of fairness and equality, you quickly realize that the popular will is just one force among many, and one which also needs to be checked, a fact recognized by the Framers. The current system serves at least three functions quite well. First, it helps ensure that a geographically small portion of the country doesn't control the laws in geographic areas where majority is ignorant, i.e. would it really be "democratic" for people in California and New York to control the life of a rancher in Montana? Second, by doing so, the current system helps maintain stability by requiring that laws be passed by both a numeric majority and a geographic majority. In 1861, we saw what happens what a large region of the country feels that its interests aren't being considered. I, for one, rather like attempting to sure that diverse parts of the country are generally on board with an idea before it gets passed into law. And third, the current system achieves temporal political stability by insulating the government from the (often) quite radical changes in popular attitude. Hence the current stall in Congress: the House, which just turned over from a relatively conservative body to a relatively liberal body, is being moderated by the temporally stable Senate.

Before you consider "how" to make the country more democratic, one should first ask "should" we.
10.24.2007 11:40am
DDG:
Tony: yes, in theory, every Parliamentary system is one election away from tyranny. But the Parliamentary usually comes on top of a British culture which, for some reason, is historically pretty resistant to tyranny.

It is difficult and takes a long time for a person or party in the US to accumulate tyrannical level power (the closest we've come is FDR, and perhaps Lincoln).
10.24.2007 11:42am
Unintended Consequences:

It is difficult and takes a long time for a person or party in the US to accumulate tyrannical level power (the closest we've come is FDR, and perhaps Lincoln).



Some people would say that George W. Bush has steadily accumulated power (in that he is not accountable to anyone) in the aftershocks of a national emergency. Whether that level of power is in excess of that exercised by Lincoln or FDR is still open to question. The next question, which will be answered by historians, will be whether this monopolization of power was wise in the long run.
10.24.2007 11:47am
Tony Tutins (mail):
But the Parliamentary usually comes on top of a British culture which, for some reason, is historically pretty resistant to tyranny.

The growing UK Muslim population seems pretty resistant to the British culture. I'd say there's a five percent chance of an Islamic Republic of Britain after the old lady dies.
10.24.2007 11:51am
H. Tuttle:
Frankly, I'd like to see the repeal of the 17th Amendment before any attempt to make the Constitution "more democratic".
10.24.2007 12:02pm
Dave Griffith (mail):
Some people would say that George W. Bush has steadily accumulated power (in that he is not accountable to anyone) in the aftershocks of a national emergency. Whether that level of power is in excess of that exercised by Lincoln or FDR is still open to question.

Well, no. Not by anyone who knows much about the history of Lincoln or FDR. Not to in any way defend this administration, but imagining that its extensions of executive power have approached anything like those seen in WW2 or the Civil War requires the sort of historic blindness that leads teenagers to assume that their generation invented oral sex.
10.24.2007 12:02pm
DDG:

Some people would say that George W. Bush has steadily accumulated power (in that he is not accountable to anyone) in the aftershocks of a national emergency. W



Some people have absolutely no understanding of history or current events. GWB's current actions don't even remotely compare to what Lincoln, FDR or Wilson did, among others. Or even J. Edgar Hoover in the his realm.
10.24.2007 12:03pm
PatHMV (mail) (www):
Ralph Phelan and the others are quite correct. Last year at Stubborn Facts we had a lengthy debate over proposed reforms to effectively abolish the electoral college. Those proposing the changes insisted that they were necessary to make things "more democratic." When pressed, however, we never got a good answer as to why making it "more democratic" was the goal. "Democratic" was assumed as an inherent good, with no support of the proposition necessary.

Let's go back to the words of someone much wiser than the lot of us, Thomas Jefferson:

That to secure these rights [life, liberty, and the pursuit of happiness, among others], Governments are instituted among Men, deriving their just powers from the consent of the governed
...
It is the Right of the People ... to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness


The primary purpose of any government is to effect our safety and happiness, to protect our inalienable rights. If that could be accomplished by a dictatorship, fine. If it could be accomplished by pure, unadulterated democracy, fine. But in analyzing structural reforms to our constitution, we must realize that the form of government is never an end, but only a means. The end is the protection of our rights as human beings. The question is never whether the proposed reforms will make the constitution more "democratic," but whether they will make the government more likely to protect our rights and secure our safety and happiness.
10.24.2007 12:07pm
Adam J:
AnonLawStudent- I never claimed it was a perfect form of government- I simply defined what was the purest form of democracy since I thought Houstan might be confusing democracy and anarchy
10.24.2007 12:13pm
byomtov (mail):
Abolishing the Electoral College would make the Constitution more "democratic" in the sense that it would provide for nationwide popular election of the President. But it would radically change the way politicians campaigned. For example, they would never go to small states and would, instead, try to accumulate as many votes as possible in large states and particularly urban areas, rather than just get 50.1% in those states. They'd spend most of their time in big cities in big states, like NYC, LA, Chicago etc.

You mean they would spend more time where the people are? What's wrong with that?

would it really be "democratic" for people in California and New York to control the life of a rancher in Montana? Second, by doing so, the current system helps maintain stability by requiring that laws be passed by both a numeric majority and a geographic majority.

First of, as far as the Electoral College and the Senate are concerned a geographic majority is all that is needed. That's really quite silly, when you think about it.

Second, is it really a good idea for ranchers in Montana and Wyoming to exert as much control as they now do over New York and California? Why should we assign political power to land with no people in it? Suppose you live in an apartment. Do you think the guy who lives in a house on a big lot should get more votes than you do?
10.24.2007 12:19pm
Annway Oultercay:
Yeah, the lack of women's suffrage was also considered a "feature" at the time. Perhaps there was no reason to change that either?
Oren


What goals was woman's suffrage supposed to accomplish? There has been enough time that we should be able to make a judgement as to the track record of woman's suffrage.

Suffrage was not invented for the heck of it. It was invented with goals in mind. Namely:

"to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity"

The same questions should be asked about making America more of a democracy. Are we proposing it just for the heck of it, or do we think that will accomplish the stated goals better?
10.24.2007 12:21pm
rarango (mail):
OK--I'll bite: whats wrong with the current document? Precisely in what way is not democratic enough--remembering of course, that the framers rejected a democracy in favor of a representative republic.

Now--if the constitution requires more "democratization" the framers thought of that: we can amend it or better yet, let's call for a constitutional convention that would presumably keep the federal legislative branch out of it (unless some of the congresscritters would be elected by the states--which I highly doubt).

Think about attempts to create constitutions in this modern era--particularly the efforts of the European Union to draft a constitution. Does anyone seriously think that abomination that group of bureaucrats produced would not be the result of such an effort here? Ok--the ghost of Burke has now left my side and I resume my regularly scheduled wingnut fantasies.
10.24.2007 12:27pm
KevinW:
"Democracy" has unfortunately been elevated to a status it doesn't deserve. People often confuse "democracy" with other distinctives of free society (rule-of-law, liberty, etc.), and there is now a false legitimacy given to decisions simply because >50% of the people said so. Does ">50% said so" equal "correct"? As other commenters have pointed out, there are flaws to democracy - in particular, the tyranny of the majority.

Suppose my neighborhood decides to vote on what's for dinner tonight. We all vote, and the majority decision is enforced within each household. Why is this democratic solution superior to just having every household decide on it's own what to have for dinner and not worrying about what everyone else is having?

Democracy should only be used as a check to prevent a minority from ruling over the majority. But there are other ways to prevent this (e.g. moving some federal powers back to the states). For a given issue, democracy may not be the best solution (although for other issues, a democratic process of some sort is necessary).

So, I think we should instead focus on making our constitution more "free" (promoting freedom for all) than more "democratic" (subjecting everyone/everything to the will of the majority).
10.24.2007 12:32pm
c.f.w. (mail):
1) Making the senate a proportionate body seems like a no brainer. CA should have more senators than ND.

2) Extend voting rights to those under 18 - helps shift assets to the less affluent, reducing troubling income/wealth inequality issues.

3) Provide for nationality or citizenship blind "hiring" (including for SCT, President, Congress, Senate). McKinsey, Bain, ExxonMobil, PwC, Goldman Sachs, Google all get to hire the best in the world, bar none. This helps make those institutions far more globally relevant and vibrant than say the SCT, which tells us routinely what 25% of 300 million think about issues (including many with global implications), leaving aside 95% of a world of 6 billion. Globalization needs to be kept in mind when staffing the government (at all levels), or we get a 10 mile by 10 mile village in DC that is collectively about twice as stupid as it needs to be.
10.24.2007 12:34pm
Dan Simon (mail) (www):
In particular, they have failed to grapple with the reality of widespread political ignorance, which both reduces the extent to which the Constitution can ever be fully democratic and makes the reform process more difficult.

For the umpteenth time, Professor Somin, the vast majority of advocates of a more democratic system haven't "failed to grapple with the reality of widespread political ignorance"--they acknowledge it, and disagree with you about its implications. Rather, it is you who have consistently failed to grapple with the serious moral and pragmatic issues involved in this debate, hiding instead behind an endlessly droned factual claim--one that all serious participants have long ago conceded--and pretending that your assertion of fact directly implies the correctness of your position, when it most certainly does not.

If advocates of greater democracy were to assert loudly that you and other defenders of strong constitutionalism had "failed to grapple with the reality of" judicial corruptability, I'm quite confident that you would point out that citing a widely acknowledged fact, and then treating one's own inferences from it as both equally factual and decisive all by themselves, is a patently dishonest form of argument.
10.24.2007 12:36pm
John C:

Abolishing the Electoral College would make the Constitution more "democratic" in the sense that it would provide for nationwide popular election of the President. But it would radically change the way politicians campaigned. For example, they would never go to small states and would, instead, try to accumulate as many votes as possible in large states and particularly urban areas, rather than just get 50.1% in those states. They'd spend most of their time in big cities in big states, like NYC, LA, Chicago etc. To put it another way, GWB would have campaigned like crazy in Texas and Kerry would have campaigned like crazy in NYC.


Spend most of their time in cities - that would be great! For once, maybe presidential candidates would have incentive to focus on issues that matter most to the majority of the population that lives in urban and semi-urban areas. Maybe it would force these candidates to discuss ideas and put forth policy proposals about things that have far more import to the daily lives of most people than most of what gets discussed now - infrastructure improvement, mass transit, water rights, urban crime, etc.

We see these things generally as "local" issues, but they are (or can be) national issues, and the one of the main reasons they are not discussed as national issues is because presidential candidates have no incentive to discuss them, because they can troll for votes in lightly-populated areas.
10.24.2007 12:42pm
abb3w:
I'd like to make sure Democracy doesn't trump certain principles of Limited Government, such as Free Speech, Free Assembly, Reasonable Search, Trial by Jury, and so forth.

There are some things that the government should not be allowed to do... even if the Majority like the idea.
10.24.2007 12:43pm
Don Miller (mail) (www):
I'll bite,

I think we forget the original purpose of the Senate. The Senators were appointed by the State Legislators/Governors to represent the interests of the various States. Under the Constitution, the opinion of Montana is just as important at that of New York or California. When we changed the constiturion to allow the direct election of Senators, we inherently made the process more democratic and introduced the problem of campaign financing into the Senate. Senators no longer represent their various State Governments. They are more interested in supporting the interests of their campaign donors, whether those donors represent the people of their State or not is up for debate. I would say no for the most part.

The House of Represenatives was supposed to be the People's house. They are put out by population. I personally believe that we no longer have enough Congressmen. When they capped the number of congressmen at 435 (or whatever it is), it increased the power of the individual congressmen and started limiting the power of an individual constituent to have his/her voice heard. I believe that we would be better served to have the cap on the total members of the House removed. Set a number, say 250,000 people. For every 250,000 people, you get one Congressman. It would seriously dilute the power of individual congressmen. It would also reduce the importance of campaign financing. It is not very expensive to run a campaign targeting 250,000. It would 3rd party canidates a better chance at getting elected. With 1200 congressmen, the House of Represenatives would be way more entertaining. We would see a greater variety of power blocks forming and dissolving. I think we would see the power of incumbency reduced as well. They would have to develope whole new processes for bringing a bill to the floor for a vote. It would be fascinating.
10.24.2007 12:44pm
DDG:
I suspect that many of the people trying to make the Constitution more "democratic" (by which, I think they mean, more majoritarian) are simply trying to make the nation more "Democratic" (as in party).

I, for one, am pretty comfortable with our republic and have no need to see it become a purer democracy.
10.24.2007 12:48pm
DDG:
Don: very good suggestion re: House. I've heard it before, but still a very good suggestion. As I understand it, they capped the number because they ran out of room in the chamber ...

As for Senators, that system wasn't perfect. There was a serious problem of machine control back in those days. But that's not too different from today, except the machine is special interests.
10.24.2007 12:54pm
Adam J:
DDG- It's the vast left wing conspiracy at work once again. Muh hah hah!
10.24.2007 1:00pm
Tony Tutins (mail):

1) Making the senate a proportionate body seems like a no brainer. CA should have more senators than ND.

California's current Senators are hardly representative of the state's population. The percentage of the population that are Jewish women and/or ex-Brooklyn chicks is microscopic. Before Cal is awarded more senators, the laws should be changed to favor Hispanic women and Asian men.


I suspect that many of the people trying to make the Constitution more "democratic" (by which, I think they mean, more majoritarian) are simply trying to make the nation more "Democratic" (as in party).

No, California Democrats hate direct democracy. They freaked out when the people recalled Gray Davis and replaced him with a popular Republican movie star. Right now the legislature's Democrats are trying to weasel around the expressed will of the people by passing a same-sex marriage law. Because the man-woman marriage law was passed by citizen initiative, the Cal constitution mandates it can be overturned only by another initiative.

Bottom line: the voice of the people means nothing; your California Democratic legislators know better than you.
10.24.2007 1:01pm
Tim (mail):
I would like to preserve the right NOT to care about government. This is the essense of freedom. This talk about making government more democratic is by and for people who care about government.

In most presidential elections the don't care (not-voting) selection usually wins.
10.24.2007 1:07pm
Adam J:
Tony- thanks for citing a perfect example of the flaws of pure democracy- oppression by the majority, it's good to see California Democratic legislators recognize this and act upon it.
10.24.2007 1:11pm
Brett Bellmore:

Now--if the constitution requires more "democratization" the framers thought of that: we can amend it or better yet, let's call for a constitutional convention that would presumably keep the federal legislative branch out of it


I'd assume that, in the event the states call for a constitutional convention, Congress would respond by declaring it's own members to be the delegates, and the Court, seeing that nothing in the Constitution explicitly forbade this, would either sign off on it, or, amounts to the same thing, declare the matter "non-judiciable".

Why would the federal government go to the trouble of usurping the power of amendment by 'living constitutionalism', and then let the states take it back by a convention?
10.24.2007 1:19pm
Random Commenter:
"Tony- thanks for citing a perfect example of the flaws of pure democracy- oppression by the majority, it's good to see California Democratic legislators recognize this and act upon it."

This assertion would carry more weight were CA not gerrymandered into absurdity.
10.24.2007 1:20pm
therut:
Beware wols in sheep clothing. I vote NO. Sabato also in his greatest of moments of thinking wants to get rid of that evil democratic 2nd amendment. NO Way. Want another civil war. I personally am to the point I hope we can just DIVORCE peacefully this time.
10.24.2007 1:28pm
H. Tuttle:
Glad to see that someone picked up on the direct election of Senators problem. I believe direct election of Senators has made them less beholden to the states they are suppose to represent and allowed them to freelance on their own interests. Senators were never intended to represent the interests of the "people" of the state, but the state as a whole -- and certainly not their own ambition. And I also agree that capping the number of House members has likewise had an effect, for better or for worse, that has been little explored.
10.24.2007 1:33pm
AnonLawStudent:
Adam J: My appologies for the misunderstanding.

Byomtov: In the Senate, a geographic majority is needed; in the House, a popular majority, and the Electoral College effectively, if imperfectly, requires a combination of both geographic and popular majorities. The assignment of power to geographic regions wasn't intended as an assignment of power to "land" per se, but land as a proxy for local [state] interests. As originally intended, the two serve as a blocking mechanism - the majority doesn't get to issue dictates on issues about which they are ignorant, but the minority doesn't dictate to the majority; collective action is required. And I'll stand by my assertion of ignorance - do you really think that a lawyer in Brooklyn knows anything about what policies are necessary to ensure that food is delivered to her table? Nor does the Montana farmer, on average, have a clue as to Wall Street Finance or the impetus for greater authoritarian power in an urban setting. Preventing dictates by the unknowing other works to the benefit of both. It's all about ensuring local control, which, both philosophically and pragmatically, is a good thing. I'll second the statements above that popular control is not a per se good; it's a means to an end - an application of the power of markets and networks to facilitate liberty and good government.
10.24.2007 1:35pm
Matty G:
Ilya:

I enjoyed your article. Well written, fun to read, and I think largely correct.

One thing that I didn't see addressed was the Madison/Dahl debate over the importance of institutions. To a certain degree, I side with Dahl here: no matter what institutional structure you devise, at a fundamental level, you can't constrain the will of the majority. Here's an example:

Nothing in the Constitution itself can prevent Congress from becoming a unitary, sovereign body, responsible only to the voters. If Congress so chose, they could go on the record that they would immediately impeach any President who vetoed any bill (or they could just impeach all Presidents and VPs after the election, placing the Speaker of the House in the Presidency), and they could immediately impeach any judge who struck down any federal legislation. It can be done. (Sure, there are collective action problems, leave them aside).

Why isn't it done? Well, because Congress is responsive to the electorate, and many of them would lose their jobs if they tried some of things suggested above. But that's the point: the Constitutional structure isn't holding separation of powers in place. The electorate's belief in the separation of powers is holding it in place.

Thus, there's no reason to believe that a Constitutional convention would either A)reveal a mass preference away from separation of powers or B)be necessary if such a preference dominated the electorate.

Obviously, this is a different focus of thought than the smaller issues of equal Senate represenatation or the electoral college. Any fundamental change to the legislative branch will have to be done through Constitutional amendment. But any change outside the legislative branch could, in theory, be accomplished by the legislature.

Your thoughts?
10.24.2007 1:39pm
Pluribus (mail):
Abolishing the Electoral College would . . . change the way politicians campaigned. For example, they would never go to small states and would, instead, try to accumulate as many votes as possible in large states. . . .

Under the existing system, Kerry didn't campaign in Texas, because he knew he wouldn't get any electoral votes there, and Bush didn't campaign in California or New York or Massachusetts, because he knew he wouldn't get any electoral votes there. Do voters really need to see the candidates in person to know who they are and what they stand for? It's more important for candidates to address issues that effect large groups of people than to shake a few hands in Providence, Rhode Island, or Cheyenne, Wyoming. Under the electoral college, the election is routinely decided in a handful of toss-up states--Florida in 2000 and Ohio in 2004--while millions of voters in other large states are virtually ignored, because their electoral votes are conceded to the opposition. What's good about that?
10.24.2007 1:42pm
Adam J:
Random- I'm not sure how the gerrymandering makes my assertion any less correct- simply because the California legislators were elected in gerrymandered(?) districts doesn't make it any less true that they are attempting to protect a minority from oppression.
10.24.2007 1:59pm
Pluribus (mail):
[T]here's no reason to believe that a Constitutional convention would either A)reveal a mass preference away from separation of powers or B)be necessary if such a preference dominated the electorate. Obviously, this is a different focus of thought than the smaller issues of equal Senate represenatation or the electoral college.

Would you classify the right to habeas corpus, separation of church and state, the exclusionary rule, or the prohibition against cruel and unusual punishment, as "smaller issues"? I tremble at the thought that a convention, elected by a post 9/11 population, could vote vote up or down on a whole host of basic constitutional rights, developed over centuries of Anglo-American history at the cost of bitter blood and tears.
10.24.2007 2:08pm
David M (mail) (www):
Trackbacked by The Thunder Run - Web Reconnaissance for 10/24/2007
A short recon of what’s out there that might draw your attention, updated throughout the day...so check back often.
10.24.2007 2:11pm
Smokey:
Democracy: when a Special Interest Wolf and a Congress Wolf sit down with a Taxpayer Sheep to decide what to have for dinner.
10.24.2007 2:11pm
Kelvin McCabe:
Agrees with don miller - --

In fact, the Constitution itself used to have the representative ratio set in stone - i think it was one congressman for every 40,000 citizens. Th 14th amendment changed that - ironic, that the bill that gave us equal protection and due process rights vis a vis the States - - also severely limited the House's role as a voice of the people themselves. Either way, if we had stayed with the original ratio, it seems there would be somewhere near 10,000 reps...perhaps an unmanageable number. I think 1,500 wouldnt be too much to ask.

Tis a pity. Now the two party system controls 99% percent of the country - which really means that corporations/special interests who control the legislators via election $ control 99% of the country. And the 14th amendment is to blame - go figure.
10.24.2007 2:11pm
bruhaha:
Don looks like he checked his census numbers. As a matter of fact, the first Congress with 435 representatives was the 63rd, which began to serve in 1913. Based on the national census of 1910 (a bit over 92 million), that would be an average of 212,000 per representative (though obviously the 'minimum of one per state' rule meant Congressmen from more populous states represented a larger number). When the number was "fixed" at 435 by the Reapportionment Act of 1929, the proportion was more like 275,000 per rep., but not too far off.
10.24.2007 2:13pm
rarango (mail):
The classic Burkean formulation: "I tremble at the thought that a convention, elected by a post 9/11 population, could vote vote up or down on a whole host of basic constitutional rights, developed over centuries of Anglo-American history at the cost of bitter blood and tears." Who said conservatism is bad!
10.24.2007 2:13pm
Smokey:
Oh, and David M, kindly take your shill elsewhere. It's getting tedious.
10.24.2007 2:13pm
David Drake:
Re GWB's alleged accumulation of power--

The federal government in general and therefore the President have been steadily accumulating power. Starting at the latest with Andrew Jackson, accelerating under Lincoln, TR, Wilson and FDR, and Clinton.

I second the comments above that the Bush Administration's alleged misuses of power pale in comparison with prior wartime administrations.
To assert otherwise betrays a either a woeful ignorance of American history or, more probably, the desire to paint GWB as "the worst" regardless of the facts.
10.24.2007 2:13pm
rarango (mail):
Oh--hit the post button to quick--after the convention votes up or down, 3/4 of the states get their say--there are some checks and balances involved.
10.24.2007 2:14pm
Vivictius (mail):
It is obvious that most of the people whining about making the constitution more "democratic" live in the larger cities and high population states. If they got what they wanted the only states that would matter would be California, Texas, Florida, New York, and Illinois. That would be 38% of the country making all of the decisions. The rest of the country will not allow that.

Not that it really matters. As a resident of one of the smaller (population) states I know that you cant change the constitution with out the support of most of the Senate. We will not give you that support.

That fact that many people in cities never seem to grasp is the simple fact that what works for a city of 3 million doesnt work for a town of 8 thousand. The still try and squish us all in to the same box however.
10.24.2007 2:17pm
Matty G:


[T]here's no reason to believe that a Constitutional convention would either A)reveal a mass preference away from separation of powers or B)be necessary if such a preference dominated the electorate. Obviously, this is a different focus of thought than the smaller issues of equal Senate represenatation or the electoral college.



Would you classify the right to habeas corpus, separation of church and state, the exclusionary rule, or the prohibition against cruel and unusual punishment, as "smaller issues"? I tremble at the thought that a convention, elected by a post 9/11 population, could vote vote up or down on a whole host of basic constitutional rights, developed over centuries of Anglo-American history at the cost of bitter blood and tears.


Pluribus: My point is that nothing is protecting your rights to those things right now besides the electorate and the plain language of the Constitution. If Members of Congress believed that the electorate would back them in the next election, they could destroy the executive and judicial-branch, as well as any other check on them not explicitly stated in the Constitution, and it would all be perfectly legitimate.

Dahl's point is that there are very, very few institutional structures that can insulate a democracy from the will of the majority. You have to trust the majority to some point, because when the majority truly turns against something, separation of powers won't be worth the paper it's written on.
10.24.2007 2:17pm
Libertarian1 (mail):
Regarding the suggestions to eliminate the electoral college or give California more than 2 Senators. Those proposals remind me of sports fans. Their team has just made a fair trade eg a good pitcher for a good hitter. The next year the fans complain if we still had our good pitcher and the newly acquired good hitter we would have won more games. They made a trade. Afterwards you can't take back only your half of the contribution.

Historically to form our country and have the smaller states ratify we gave them the electoral college and 2 senators each. If you wish to renege on the deal the smaller states- maybe the entire sun belt- have the right to withdraw from our union. Is that acceptable?
10.24.2007 2:20pm
bruhaha:
Kelvin - Not exactly. What the Constitution "set in stone" was the exact number of reps for each state BEFORE the first census, and that "The Number of Representatives shall not exceed one for every thirty Thousand". So it actually does the opposite of what you're thinking, by setting a MAXIMUM number of representatives allowed. Of course, with our current population that number is meaningless.

As for the 14th amendment, it says NOTHING about how large a block each representative should represent. The only limitation it places is that any particular state that disallowed the vote to a portion of its male population would lose that proportion of its representation in Congress.

The situation was this -- slave states had formerly benefited by being allowed to count 3/5 of their slave population in determining their representation in Congress, hence getting extra representatives for people not allowed to vote. But as a result of the 13th amendment those state could suddenly count the FULL number of that population (former slaves) which was STILL not allowed to vote! Shocking as it may seem, the North didn't particularly like the idea of "winning" the war, only to hand the South MORE power via an increased proportion of representatives in Congress(and Presidential electors)!

But again, this had nothing at all to do with the size of the House relative to the population.
10.24.2007 2:29pm
Don Miller (mail) (www):

Don looks like he checked his census numbers. As a matter of fact, the first Congress with 435 representatives was the 63rd, which began to serve in 1913. Based on the national census of 1910 (a bit over 92 million), that would be an average of 212,000 per representative (though obviously the 'minimum of one per state' rule meant Congressmen from more populous states represented a larger number). When the number was "fixed" at 435 by the Reapportionment Act of 1929, the proportion was more like 275,000 per rep., but not too far off.


Thanks for giving me credit for research, but it has been more of an intuitive approach. The 40,000 in the original constitution felt like too many for our current lifestyle and media access, 1 per million is worse than the current situation. 4 per million passed the gut check.
10.24.2007 2:30pm
Pluribus (mail):
My point is that nothing is protecting your rights to those things right now besides the electorate and the plain language of the Constitution.

I agree that the electorate (following Lincoln, I would prefer to say "the people') will ultimately decide what form of government we have, and what rights are protected. I think we tread on dangerous ground when we tinker with the "plain language of the Constitution." It is not "the people" who make me tremble. It is the tinkering.

This doesn't mean I oppose constitutional amendments per se. I would heartily endorse an amendment abolishing the electoral college, which made sense in 1787 but makes no sense in 2007. I would not endorse a constitutional convention with free rein to change anything or everything in the "plain language of the Constitution."
10.24.2007 2:42pm
byomtov (mail):
ALS,

Clearly, winning an Electoral College majority usually means winning a popular majority. Equally clearly, it doesn't always mean that, and I fail to see any sensible reason for letting that happen.

The trouble with your argument is that Congress deals with matters of national policy. Sure, there are issues where local control is important, and these are best accommodated by letting states and localities make decisions. Letting Montana have some control of New York and vice versa in the hope it will all work out is not the best approach.

But when it comes to policies that affect the entire country there really is no justification for giving Montana the same voice as California or Texas. All the complaints about how only the big states will be listened to ignore the fact that the reason they are big is because that's where the people are. There is no magical "Montana interest" or "New York interest." There are political disagreements within states as well as between states. There are only the interests of the people living in Montana or New York, and there is no reason why the interests of a Montana rancher on matters of national concern should carry more weight than those of a Brooklyn lawyer. Yet that is what those who talk about small-state interests are arguing.

I do understand that equal representation in the Senate was a way of getting sort-of-independent states to form a stronger union, but I don't think that we are well-served today by that idea.
10.24.2007 2:47pm
HappyConservative:
I don't think Somin's real objection is ignorance.

For some reason, libertarians think that the reason people do not agree with them is ignorance. Liberals think the same thing. The conceit goes: "If only people were more 'educated' they would think just like me."

I don't think our Constitution should be more democratic, because people naturally arrange themselves in hierarchies, and more democracy is anti-hierarchical. Some people are golfers and some people are caddies. And that is the way it should be.
10.24.2007 2:53pm
Bretzky (mail):
I think another question that should be asked is "more democratic in its structure or in its performance?". In other words, are we talking about making the constitution more democratic in the way that decision makers are selected or more democratic in the way the government creates laws and regulations, or maybe even both. I'm not as concerned about the former as I am the latter.

I do think that the current structure of the Senate is an idea whose time has passed. The division of Senators should be based on population, just as it is in the House. The Senate could still have a different structure from the House by keeping the number of Senators at a two-for-each-state ratio.

Although, I would definitely keep the electoral college. The 2000 election is the perfect example of why. The controversy in that election was over Florida, and Florida alone. The electoral college kept that brush fire from spreading to the rest of the country as a raging inferno.

Making the constitution more democratic in its performance (i.e. +50% decides on every issue) is a possible recipe for tyranny. As some posters have already said, the purpose of government is not in its form but in its ability to secure our inalienable rights. If 50.1% of the people decide that 100% must follow "X" religion, then you have a tyranny. In fact, if you have 99.9% of the people deciding that 100% must follow "X" religion, then you also have a tyranny.

The best form of government is that which keeps the people safe from external invasion and from internal disorder/crime and which provides a genuinely neutral judicial system for sorting out personal disputes, and which can perform these functions over the long-term without easily degenerating into an oppressive or anarchic system. Whichever form of government can secure the following is the best one. And, at least for a country like America, I believe the framers hit the nail fairly close to right on the head.
10.24.2007 2:56pm
Pluribus (mail):
As a practical matter, you'd never see such a change under the current political environment — the small states would fight it and Republicans would fight it because the advantage such a change would give to Democrats.

If you think the electoral college favors small states, think again. Presidential elections are not decided in Rhode Island or Wyoming or Alaska, and candidates do not cater to the voters of these states. Presidential elections are decided in large toss-up states. That's where the candidates go, with their advertising messages, their money, and their campaign rhetoric. Voters in the small states are ignored, as are voters in large states which are preordained to cast all of their electoral votes for the opposition. Thus Texas (strongly Republican) and New York and California (strongly Democratic) were virtually ignored in 2004. (Except of course, for visits to big money donors, who wanted to effect the vote in the toss-up states.) And Republicans should not concede that a popular election, in which votes would count equally whether they are cast in small states or large states, will favor Democrats. Many Republicans in California in 2004 didn't bother to vote because they knew their votes wouldn't count in the electoral college. Why bother to vote when you know before you cast it that it won't make any difference? Under a popular election system, every vote—in small states and large states, among Republicans and Democrats and Libertarians and independents—would count as much as any other vote, no more and no less.
10.24.2007 3:00pm
AnonLawStudent:
byomtov,

The problem is that, in reality, Congress and the Courts have arrogated the power to regulate a whole host of local issues. Any issue becomes "national" if viewed at a sufficient level of abstraction. Growing grain for your own family's consumption - a national issue. Likewise, signing a mortgage with your local bank. Even issues that truly are national have different regional aspects. War is a national interest by any definition. Yet why should those who live on the coasts have the power to commit troops largely supplied by the rural regions? Again, the current system serves to balance popular will with varied regional interests. In the case of war, it takes the agreement of those paying for it (New York and California) and those supplying the men (Montanan and Mississippi).
10.24.2007 3:11pm
Pluribus (mail):
I do think that the current structure of the Senate is an idea whose time has passed. The division of Senators should be based on population, just as it is in the House. The Senate could still have a different structure from the House by keeping the number of Senators at a two-for-each-state ratio.

How would a system under which senators are elected "at a two-for-each-state ratio" different from the current system under which two senators are elected from each state?

Even assuming the arithmetic could be worked out, the wisdom of making the chnage is arguable. The clear language of Article V isn't: "No state, without its consent, shall be deprived of its equal suffrage in the Senate."

It's probably a good idea to limit discussions of constitutional amendments to the real world, not to fantasy.
10.24.2007 3:14pm
TruePath (mail) (www):
Dear god WHY? Other than sounding spiffy what's the reason to make the constitution more democratic? As Bryan Caplan outlined quite effectively in "The Myth of The Rational Voter," there is extremely compelling evidence that suggests people don't vote in their own interests. This isn't even that the people are dumb, if we elected any one of them to be a dictator they would put in the time to figure out what is going on and the cost of making a bad decision would overwhelm the costs of changing their beliefs but when they vote neither of these conditions attains.

Why is it better for a country to be more democratic? The ultimate goal is to produce a government that makes correct decisions, i.e., acts to increase overall utility. Now it's generally clear that in the developed world dictatorships tend to be worse than states with some significant influence of the people on the democratic process (this is less clear in the developing world) but whats the evidence that more democracy than we have now makes the state better? You don't get to skip proving this step just because democracy is a feel good word!
10.24.2007 3:20pm
glangston (mail):
no matter what institutional structure you devise, at a fundamental level, you can't constrain the will of the majority



That's certainly what the Constitution does. It takes 3/4 to change it.

Were we to apply this same advanced thinking to judicial matters we could go back and forth and ignore precedent because of course, we don't want to constrain the will of the majority.

I agree with those posters who contend the framers knew a lot about human nature and provided specifically in the Constitution to avoid the tyranny of the majority. The nice feature of 2/3 majorities and 3/4 majorities is that it discourages legislative efforts and keeps the workload manageable for our representatives and the House of Lords.
10.24.2007 3:25pm
TruePath (mail) (www):
Ohh, and I should add that the electoral college system actually does more than merely throw extra votes to small states as does the senate.

For instance in a presidential election the electoral college system limits the benefit that a candidate can get from turning out their base. While in a pure direct election one might win merely by being so extreme that you generate extreme turnout among the very conservative or very liberal the electoral college at least requires that you have enough appeal that you can gain a majority of votes in swing states. Similar considerations apply about the senate.
10.24.2007 3:28pm
Vivictius (mail):
Obviously, Pluribus, math is not your strong pont. Currently my state has 3 out of 538 electorial college votes or 0.56%. If it went to a straight popular vote we would have approximately 0.33%. So the current system actually more heavily weights the votes of smaller states.

As far as the breakdown of electorial college votes in each state there is no requirement that it be all or nothing. That decision is up to the individual state.
10.24.2007 3:32pm
jdh (mail) (www):
What does it mean to make the Constitution more democratic. Does it mean voting for more politicians? The original democracy, Athens, would have laughed that proposal to scorn. The Athens knew that electing government officials would lead to oligarchy and government by the rich. Lo and behold, that's exactly what we've got.

Of course:

"The Constitution has no inherent authority or obligation. It has no authority or obligation at all, unless as a contract between man and man. And it does not so much as even purport to be a contract between persons now existing. . .Those persons, if any, who did give their consent formally, are all dead now. . .[T]he constitution, so far as it was their contract, died with them. They had no natural power or right to make it obligatory upon their children. It is not only plainly impossible, in the nature of things, that they could bind their posterity, but they did not even attempt to bind them." - Lysander Spooner, No Treason: The Constitution of No Authority
10.24.2007 3:43pm
byomtov (mail):
War is a national interest by any definition. Yet why should those who live on the coasts have the power to commit troops largely supplied by the rural regions? Again, the current system serves to balance popular will with varied regional interests. In the case of war, it takes the agreement of those paying for it (New York and California) and those supplying the men (Montanan and Mississippi).

I think you are still talking about states when what is involved is individuals. It is not "Missisippi" that provides the soldiers who come from there. Individuals choose to enlist; they are not drafted by the State of Mississippi. The state is not assigned any sort of quota of soldiers to provide.

I would turn your argument around and ask why an individual Montana voter should have more say-so about going to war than an individual New York voter. Because his neighbor is in the Army?
10.24.2007 3:54pm
Pluribus (mail):
Obviously, Pluribus, math is not your strong pont. Currently my state has 3 out of 538 electorial college votes or 0.56%. If it went to a straight popular vote we would have approximately 0.33%. So the current system actually more heavily weights the votes of smaller states.

I don't recall arguing the math, but since you brought it up, does the fact that your state now wields 0.56% of the vote in the electoral college mean that major party candidates especially court your votes? And how exactly do the interests of the voters in your state differ from those of voters in New York or Texas or California or Florida or Ohio, in all of which there are Republicans and Democrats, conservatives and liberals, rural voters and urban voters? What is it, other than the irresistible allure of your 0.56% of the votes in the electoral college, that draws candidates to your state? If I calculate correctly, if your state could only get 91 other states with a similar electoral vote to go along with you, you could command 51 percent of the vote and decide the election. (51 % divided by 0.56% = 91.) Care to explain why you're worried about giving up that terrific advantage?
10.24.2007 3:59pm
Vivictius (mail):
Your argument was that politicians do not currently cater to the smaller states. Moving to a straight popular vote would make smaller states count LESS not MORE, therefore the votes would be worth even less. There campain time will always be better spent in places with a higher population. There is NO advantage to a popular vote if you are not in one of the five states I listed previously.

What is will do is massivly increase the effective power of those people living the the most populus states.

It doesnt not mater anyhow. It can not be changed without 3/4 of the state legislatures support and you will not get that.
10.24.2007 4:26pm
AnonLawStudent:
byomtov,

Because the interests of "individuals" as such, will never be counted in anything short of a pure democracy. And yes, there is some commonality between the soldier and his neighbor that is not shared by a New Yorker. One would have to be blind not to see the difference in the way these types of issues are portrayed (and understood) in different regions of the country. There is a huge difference between saying "I think we should invade Darfur because what's going on there is just awful" and saying the same thing when it's little Billy from next door who is going to be shot at. I don't want to focus on this particular issue, but it is highly illustrative in the different regional interests which need to be represented in national decisionmaking. The war example is a clear example of reinforcing stability by (i) supermajoritarian consensus, and (ii) preventing resentment from building and boiling over because the interests of people a thousand miles from where you live are being forced upon you without any effective ability for you to stop it. In the South, military and morality are the big issues; on the Coasts, its government programs, in the Midwest, it's farm policy. What I am saying is that the current system provides a manner of (more or less effectively) representing each, and that disproportionate regional representation isn't problematic considering the Southeast disproportionately provides troops, the Coasts pay for troops and government, and the Midwest feeds everybody else. The Senate is a useful tool for checking the power of the majority to dabble too much in things that it doesn't clearly understand.
10.24.2007 4:26pm
Mark Field (mail):

Although, I would definitely keep the electoral college. The 2000 election is the perfect example of why. The controversy in that election was over Florida, and Florida alone. The electoral college kept that brush fire from spreading to the rest of the country as a raging inferno.


I don't understand this point. The national results were nowhere near as close as those in FL. It was only BECAUSE of the EC that we had a crisis.


Historically to form our country and have the smaller states ratify we gave them the electoral college and 2 senators each. If you wish to renege on the deal the smaller states- maybe the entire sun belt- have the right to withdraw from our union. Is that acceptable?


I don't accept the premises of your question, but even if I did, the obvious answer is No. The Constitution contains within it the possibility for change. As long as change occurs by following those provisions, that's part of the bargain.


In the case of war, it takes the agreement of those paying for it (New York and California) and those supplying the men (Montanan and Mississippi).


I understand this is probably intended as a hypothetical, but your factual premise is wrong. CA and NY supply far more soldiers than MT or MS. The larger states both pay for the army and supply the manpower.
10.24.2007 4:52pm
Unintended Consequences:
For those who believe that Bush has not done anything worse than what his predecessors have done in terms of the law, I would suggest that you read this.

Jed Rubenfeld's opinion

"According to Judge Mukasey’s statement, as well as other parts of his testimony, the president’s authority “to defend the nation” trumps his obligation to obey the law. Take the federal statute governing military commissions in Guantánamo Bay. No one, including the president’s lawyers, argues that this statute is unconstitutional. The only question is whether the president is required to obey it even if in his judgment the statute is not the best way “to defend the nation.”

If he is not, we no longer live under the government the founders established.

Under the American Constitution, federal statutes, not executive decisions in the name of national security, are “the supreme law of the land.” It’s that simple. So long as a statute is constitutional, it is binding on everyone, including the president.

The president has no supreme, exclusive or trumping authority to “defend the nation.” In fact, the Constitution uses the words “provide for the common defense” in its list of the powers of Congress, not those of the president."

And there are other examples such as the infamous signing statements and other examples of executive secrecy.

It cuts both ways. If you feel comfortable with Hillary Clinton wielding the same power, more power to you, but I feel very uncomfortable.

There is a fatal decrease in democracy when we suppress dissent and characterize all dissent as unpatriotic.
10.24.2007 5:01pm
Tony Tutins (mail):

I would heartily endorse an amendment abolishing the electoral college, which made sense in 1787 but makes no sense in 2007.

The electoral college makes as much sense now as it did then, because of the disparity between coast-dwellers and residents of "flyover land". We need a president elected by the whole country, and not just the coastal enclaves.
10.24.2007 5:07pm
GatoRat:
I think one of the best things we could do is repeal the 17th amendment and to increase the number of representatives to a fixed ratio one representative per 250,000 citizens.

For kicks, I'd add a provision prohibiting either house of congress from being in session more than 3 consecutive months and 5 months in the aggregate, and adding a term limit of 12 consecutive years for any elected office (15 for appointed offices, such as judgeships, all to be worded such that redistricting doesn't bypass the limit.)
10.24.2007 5:17pm
AnonLawStudent:
Mark Field:

The only way your statement is correct is if viewed in raw numbers on a per state basis, rather than regionally. As used above, the discussion was clearly focusing on regional interests.

The most recent data I could find in a quick google search was from FY 1997, at defenselink.mil, but the numbers indicate a fair degree of stability: The South accounted for 79,000 (42%) active duty recruits; the West and North Central regions 40,000 and 38,000 (about 21% each) recruits, and the Northeast only 29,000 (16%). New York provided 10,692 No-Prior-Service (NPS) recruits and California provided 19,387 NPS recruits, as compared to 2,210 from Mississippi and 1,171 from Montana. Based on Y2K populations, this means that NY, with a population twelve times as large as MS, provided only five times as many NPS accessions. Compared to MT, NY has almost 38 times the population, but provided only nine times as many troops.

We digress, but I stand by my previous assertion regarding regional interests and who provides military manpower. I would also hazard a guess that the discrepancy has become even greater since the start of the Iraq war. The "far more" isn't doesn't go as far as you think.
10.24.2007 5:25pm
Jay D:
The electoral college is cool. But it would be more cool if:
1) There were many more of them, like has been mentioned here.

2) There weren't selected by state winner take all.

One feature is that the electoral college avoids an outcome where someone who doesn't get a majority can become president. A plurality president just looks bad.

Think on this. What if Candidate A gets 45% of the electors and Candidtate B gets 45% of the electors and Candidtate C gets 10%.

The electors for Candidate C now have a choice. They can steadfastly vote for their guy, thus throwing the election to the congress, or they can choose to back Candidate A or B.
10.24.2007 5:33pm
Mark Field (mail):

The only way your statement is correct is if viewed in raw numbers on a per state basis, rather than regionally.


Ok, but I was responding to your own post, which in fact made the claim regarding individual states.

Your regional numbers aren't very helpful, since they have nothing to do with the issue of the EC, though you introduced the issue in defense of the EC. That would require treatment of individual states, since EC votes are allocated that way, rather than by region.

Your regional numbers don't indicate which states are in which region (is TX South or West?) nor are they adjusted for population.

All that said, my a prior assumption would be that the more rural states, and the less economically successful states (lots of overlap there) would supply a higher percentage of their population as soldiers. That, again, strikes me as irrelevant to the EC.
10.24.2007 5:35pm
Pluribus (mail):
I wrote:

I would heartily endorse an amendment abolishing the electoral college, which made sense in 1787 but makes no sense in 2007.

Tony Tutins answered:

The electoral college makes as much sense now as it did then, because of the disparity between coast-dwellers and residents of "flyover land". We need a president elected by the whole country, and not just the coastal enclaves.

I certainly agree that we need a president elected by the whole country. (I won't point out that we had no "flyover" land in 1787. That would be a digression.) The question is how will "the whole country" cast its vote. Should every voter in every state be given an equal say in the decision? Or should the weight of a vote vary from state to state, depending on whether the state is a small state or a large state, a blue state or a red state, a state where the vote is about equally divided between the parties or one in which one party greatly outnumbers the other?

There are Democrats in flyover land and Republicans on the coasts, and lots of them. The way people vote isn't preordained by their proximity to salt water.

There are millions of Republicans in California and New York, but their votes counted for zilch in 2004. And there are Democrats in Texas. Their votes counted for zilch 2004. You may think that's as it should be. I don't.
10.24.2007 5:51pm
Kent G. Budge (mail) (www):
A couple of thoughts occur to me as I look through the comments here.

First, as Pluribus pointed out there is exactly one nonanachronistic feature of the Constitution that is exempt from the usual amendment process: No state can be deprived of its equal representation in the Senate without its consent. This puts the scotch on any proposal to award proportional representation the Senate, because you'd basically have to either get unanimous ratification of such a proposal (will never happen) or you will have to throw out the Constitution completely and start from scratch (very unlikely to happen in our lifetimes.)

Second, the whole point of representative democracy is to get around the rational ignorance problem. A representative is confronted with a different incentive structure than the average voter, one in which ignorance is no longer rational. I don't think it takes a very large number of voters to support such a representative (assuming the idea is sound in the first place); certainly not a quarter of a million. My local city council are noticeably less ignorant about local issues than the average voter, and each represents maybe 3,000 people.

Once you have established a system of representatives for whom it is not rational to be ignorant, it seems less critical to me whether they can sit conveniently in one large and musty room to debate or not. Most of the work in Congress presently takes place by committee. I see no great leap in having 10,000 Congressmen working through a large system of committees. Of course, I'm not in favor of swift lawmaking to begin with...
10.24.2007 5:51pm
bittern (mail):
First question for any folks that think that, given the modern primacy of the national government, it is moral and fair for our brothers and sisters in small states to have a greater per capita electoral power than our brothers and sisters in large states? Second question is, if they are to have greater representation, shouldn't their per capita federal tax burden likewise be higher? As my Bay State (average size) political forebears would say, no diminished representation without diminished taxation!
10.24.2007 6:35pm
New Pseudonym (mail):
The assumption that any of the proposals suggested would make anything more democratic [sic] rests on an unstated presumption that States are nothing more than geographically defined administrative districts, and have the same relationship to the nation that counties (et al.) have to the States. IMHO, that point is invalid, and such things as proportional Senate representation and substitution of the popular vote for the Electoral College are, therefore, irrelevant. If one wants to make things more democratic on a national basis, why to we limit voting to citizens? Shouldn't all residents have an equal voice in how the area in which they reside is governed?

OTH Amend. XVII just substituted nationwide or regional special interest groups for statewide special interest groups, so it didn't really change much.
10.24.2007 7:15pm
Vivictius (mail):
If your state has an all or nothing policy for the electorial college (i.e. you are not in Maine or Nebraska) and you think that is unfair, get YOUR STATE to change. This is not a federal issue.


As far as states like California thinking they should have more senators, the Senate is suppose to represent the State, not the populus of the State (thats the House). There is only one State of California so it only gets 2 Senators, just like the one State of Rhode Island.
10.24.2007 7:19pm
byomtov (mail):
ALS,

Because the interests of "individuals" as such, will never be counted in anything short of a pure democracy.

A representative democracy with legislative seats allocated to states by population would suit me just fine.

And yes, there is some commonality between the soldier and his neighbor that is not shared by a New Yorker. One would have to be blind not to see the difference in the way these types of issues are portrayed (and understood) in different regions of the country.

So you think people who live next door to soldiers should get extra votes? And of course enlistment numbers don't tell the whole story. Since cities are much more densely populated than rural areas any given urban enlistee has many more neighbors, and probably actually knows many more people, than a rural one. Does that count?

Of course the issues are seen differently, in general, in different parts of the country. But why does that suggest that parts that differ greatly in population should get equal representation? Certainly differing points of view should be heard, but if 30% of the population tends to share certain political views and 70% feels differently, why should the 30% get disproportionate representation just because they happen to live near each other? No reason. What if the 30% minority were spread out over the country? (To forestall the inevitable, I do know that there are many matters that should not be decided by majority votes. I'm talking about the normal sorts of questions that legislatures address.)
10.24.2007 7:34pm
Toby:
I have a question for those who want the senate to be based upon population. If, as you suggest, the basis for the senate become people rather than states, then the distinction between senate and hose goes away. Why maintain the distinction? My question is,, to those who believe this, why keep a bicameral legislature at all?

Personally, I am with those who would prefer no direct election of Senators, and that the move toward direct election had unintended bad consequences. But if we move further in that direction...keepingg the senate seems incoherent.
10.24.2007 7:57pm
Pluribus (mail):
If your state has an all or nothing policy for the electorial college (i.e. you are not in Maine or Nebraska) and you think that is unfair, get YOUR STATE to change. This is not a federal issue.

Not a federal issue? The Constitution regards it as a federal issue, at least insofar as the federal charter prescribes rules for the election, sets minimum qualifications for the occupant of the office, and provides for election in the federal House of Representatives if the federal electoral college can't make a decision. And if there is a dispute, as there was in 2000, then the federal Supreme Court will step in to resolve it. When elected and sworn in, the president becomes the head of the federal government. That makes it sound pretty much like a federal issue to me.

The president and vice president are the only officers elected on a nationwide basis. Changing the laws governing allocation of votes in the electoral college on a state-by-state basis would make a difference if a sufficient number of large states did it. Otherwise, it wouldn't affect the imbalance, because other states with winner-take-all rules would still control the outcome.

I don't object to the fact that Wyoming has a winner-take-all provision, and I wouldn't be ecstatic if it decided to split its three electoral votes on a proportional basis. By the way, how would the votes be proportionally split—say if Wyoming voted 70-30 for Bush? I take it Kerry would still get zilch. Yep, that would be a big improvement!
10.24.2007 8:12pm
Raghav Krishnapriyan (mail) (www):
Vivictius: As far as states like California thinking they should have more senators, the Senate is suppose to represent the State, not the populus of the State (thats the House).

But of course the original original idea behind the Senate was to represent the upper classes. This idea of states having rights or interests seems pretty strange. As James Wilson asked at the Convention, "Can we forget for whom we are forming a government? Is it for men or for the imaginary beings called States?" Of course, what is really meant here is not so much equal representation for states as extra representation for the residents of smaller states—affirmative action for the people of Idaho, if you will.

To steal an example from Robert Dahl, imagine if the Constitution represented historically oppressed minorities like African Americans at the level it does the residents of smaller states. There's one African American in the Senate; African Americans make up 13% of the US population. It turns out that the 13% of Americans who live in the smallest states have 42 senators. (44 if you count Connecticut.) I'd venture to say that many of us here in the Volokh comment threads aren't too hot on the idea of affirmative action for blacks: do people from Wyoming really deserve it that much more?

Of course, this provision has cleverly been kept out of the reach of the amendment process in Article V, so there's a snowball's chance of changing it. But I think we may as well acknowledge that this aspect of our Constitution originated more out of blackmail on the part of small states than any real considered judgment of the framers. (Many of them opposed it.)

It almost makes you want to sign up for Jefferson's crazy idea of redoing the Constitution every nineteen or twenty years. But then, Jefferson had other harebrained beliefs:
Some men look at constitutions with sanctimonious reverence and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human and suppose what they did to be beyond amendment. I knew that age well; I belonged to it and labored with it. It deserved well of its country. It was very like the present but without the experience of the present; and forty years of experience in government is worth a century of book-reading; and this they would say themselves were they to rise from the dead.
10.24.2007 8:49pm
Raghav (mail) (www):
Toby: Personally, I am with those who would prefer no direct election of Senators, and that the move toward direct election had unintended bad consequences. But if we move further in that direction...keepingg the senate seems incoherent.

I've always been baffled as to why all the states except Nebraska maintain bicameral legislatures when so-called "geographic representation" in state legislatures was struck down in Reynolds v. Sims.

I guess it's the same reason why the UK keeps the Lords around long after the Parliament Acts were punched through.
10.24.2007 9:03pm
KeithK (mail):
I've always been baffled as to why all the states except Nebraska maintain bicameral legislatures when so-called "geographic representation" in state legislatures was struck down in Reynolds v. Sims.

Even with purely proportional representation a bicameral legislature makes sense. Having two houses means you need a greater consensus to pass any law. This is a good thing and a prime feature of American government.
10.24.2007 9:38pm
Raghav (mail) (www):
Even with purely proportional representation a bicameral legislature makes sense. Having two houses means you need a greater consensus to pass any law. This is a good thing and a prime feature of American government.

I don't know why we should be seeking consensus decisions for their own sake, rather than seeking consensus between different interests. If we did want to do that, it seems less arbitrary to require some sort of supermajority than to have a bicameral legislature, if the houses are elected at the same time, with PR.

Condorcet, for what it's worth, thought that qualified majorities were superior to bicameralism as a check: bicameralism only protects consensus along the dimension that defines the difference between the way the houses are elected (e.g., small states versus large states in the US Congress), while qualified majorities do so along all dimensions that require the qualified majority. Modern analyses (cf. Tsebelis, Veto Players) seem to agree.

On an unrelated note, I think this subject calls for a lot more empirical analysis than it's generally given.
10.24.2007 11:48pm
Jay D:
If the Senate were elected by state legislatures, it would, in theory, bring government power closer to the people.

Senators, who are counting on reelection from state legislatures would not have incentive to vote for federal laws that trump state laws.
10.25.2007 12:00am
byomtov (mail):
why keep a bicameral legislature at all?

KeithK gives one reasonable answer. Another is that the different election cycles for the two houses produce different results. A third is that bicameral legislatures in fact may make no sense, but are simply be a historical accident.
10.25.2007 12:05am
Pluribus (mail):
Jay D wrote:

If the Senate were elected by state legislatures, it would, in theory, bring government power closer to the people.

No, it wouldn't, and it didn't work that way when the senators were elected by the state legislatures. You state that government should be closer to "the people." I agree. Senators should represent "the people" of their state, not "the government" of their state. Inserting another body—the state legislature—between "the people" and the senators who represent them would take the federal government further away from the people. We had it that way once, didn't like it, and changed it. It was a good change.
10.25.2007 11:26am
c.gray (mail):

Whether that level of power [obtained by Bush] is in excess of that exercised by Lincoln or FDR is still open to question.


It's only an "open question" to somebody either ignorant of history or delusional.

Lincoln suspended habeas corpus (in defiance of the plain language of the constitution) and locked up newspaper editors who defied government censorship in military prisons without trial for years.

But even thats small potatoes compared to FDR. FDR deported the entire Japanese-American population of the Pacific coast, including 10s of thousands of native-born citizens, and imprisoned them in the American equivalent of a Siberia gulag. A lesser known fact is that he placed 10s of thousands of American conscientious objectors into forced labor camps in 1940, _BEFORE_ Pearl Harbor and the US entry into war. And the courts cheerfully upheld both as perfectly acceptable under the US constitution.

In comparison, since the September 11 atrocity, the Bush administration has attempted to hold a single US citizen in a navy brig without access to the civilian court system, and was eventually rebuffed in these efforts by the federal courts. And Bush is the first president to experience a federal judiciary claiming to have jurisdiction over POWs of any sort, let alone foreign nationals seized on foreign battlefields and held on foreign soil.

The truth is that our current president has experienced more extensive, and more skeptical, judicial and legislative oversight of that office's war powers than ANY of his predecessors, let alone Lincoln or FDR. As a result, the "War on Terror" has been the most over-lawyered war since the collapse of the Roman Republic.
10.25.2007 12:36pm
Vivictius (mail):
Raghav, origionaly the only people who could vote were white male land owners over the age of 21. That was the upper class of the US at the time. The Senate was made partly as a consesion to the smaller population states who would not have approved the Constitution without some system to prevent the larger population states from making all the desisions (iirc those would have been New York, Mass, and Virginia at the time).

*sigh* Pluribus, yes, the Constitution sets minimum requirements for occupants of the office but NOT how the states appropriate their electorial collage votes. No, there probably isnt a way to divide the votes in Wyoming in such a way that Kerry (and incidentally Dewey) would win the election. But since the States electe the President, not the people that really doesnt matter.
10.25.2007 12:53pm
Josh644 (mail):

The truth is that our current president has experienced more extensive, and more skeptical, judicial and legislative oversight of that office's war powers than ANY of his predecessors, let alone Lincoln or FDR. As a result, the "War on Terror" has been the most over-lawyered war since the collapse of the Roman Republic.


The main difference being that Lincoln and FDR oversaw major conflicts that threatened our nation - while Bush II's Iraq invasion lasted all of three months. The disparity between these situations is staggering, and to use them as a backdrop for comparing civil liberties curtailment is hysterical.
10.25.2007 1:41pm
Pluribus (mail):
c.gray wrote:

Lincoln suspended habeas corpus (in defiance of the plain language of the constitution). . . .

I just checked my copy of the Constitution and couldn't find that "plain language." Would you be kind enough to quote it for me?
10.25.2007 4:25pm
Pluribus (mail):
Vivictius wrote:

*sigh* Pluribus, yes, the Constitution sets minimum requirements for occupants of the office but NOT how the states appropriate their electorial collage votes. No, there probably isnt a way to divide the votes in Wyoming in such a way that Kerry (and incidentally Dewey) would win the election. But since the States electe the President,
not the people that really doesnt matter.


*sigh* Your're getting in deeper and deeper, Vivictius. Since the president is a federal officer, elected pursuant to provisions of the federal constitution, subject to rulings of the federal Supreme Court, how the president is elected is clearly a federal issue, your statement to the contrary notwithstanding.

Further, the president is elected by the electoral college, a federal body prescribed in the federal constitution. He/she is not elected by the states. And please don't come back with a statement that, yes, but the electoral college is chosen in the states. Yes, I know that. But that isn't what you said, and that doesn't make the electoral college any the less federal. Senators and representatives are also chosen in the states, and the Senate and the House of Representatives are nontheless federal. Congress is the federal legislature, even though its members are chosen in the states. You should read these provisions before you expound on them.
10.25.2007 5:53pm
Kent G. Budge (mail) (www):
"...given the modern primacy of the national government,..."

I think that's were we part ways on the issue of proportionate representation in the Senate. Some of us like federalism and are inclined to cling tightly to its tattered remnants.
10.25.2007 7:16pm
Raghav (mail) (www):
Vivictius: origionaly the only people who could vote were white male land owners over the age of 21. That was the upper class of the US at the time.

In point of fact, enfranchisement rates varied among regions, from 40-50% of white males to 70-80% in some places. In general, it was higher than the (unreformed) House of Commons in the UK, and certainly included more than the "upper classes." Hamilton and Morris wanted to actually institute an aristocracy in this country, but luckily didn't manage it.

By the way, George Reid of Delaware wanted to abolish the States. The Framers were considerably more imaginative than many of their defenders today.

The Senate was made partly as a consesion to the smaller population states who would not have approved the Constitution without some system to prevent the larger population states from making all the desisions (iirc those would have been New York, Mass, and Virginia at the time).

More than that, they said they would ally themselves with a foreign power if they weren't given their disproportionate representation. Today we might call that treason. (And delegates did call it that at the Convention.) But this was exactly my point: "this aspect of our Constitution originated more out of blackmail on the part of small states than any real considered judgment of the framers."
10.26.2007 12:13pm