A Democratic Crisis
No, I’m not talking about Bernie/AOC vs. the ‘moderates;’ thankfully, they have figured out that four more years of Trump would not only prevent any of Bernie’s goals in his lifetime, but make them pretty tough in AOC’s, and have gotten in line.
Nor am I talking about that hardy perennial: the electoral college, although it is connected to my topic today. The EC is a democratic problem, but it is one that is fixable by constitutional amendment or, more likely, by any of several statutory/inter-state agreements ending the “winner-take-all” problem which drives the biggest share of the difference between the EC vote and the popular vote.
Neither is it the upcoming final battle over the minority filibuster in the US Senate to determine whether the will of the “majority” (presumably the President, the House, and the Dem’s slight likely edge in the “upper chamber”) will crash upon the rocks of Mitch McConnell’s long-talking and desperate GOP minority; although this, too, is connected.
Rather, it is the simple fact that the Constitution provides for two senators per state, regardless of size. This is democratic if you’re a state; but not if you’re a person. Supreme Court precedents of “one person, one vote” mean nothing if the Constitution expressly says otherwise. Almost a quarter-millennium ago, when the US was set up, this was grounded in theory, “rough justice,” and political deal-making. The distribution of population among the states has changed pretty dramatically in the meantime, with the result that small states’ voting power in the Senate is larger than it ever has been, and increased urbanization is going to make it worse. If current partisan polarization continues (which also has a big state/little state differential), things will come to a head in about twenty to thirty years.
The equal representation of the states was one key to the legendary deal at the Convention in Philadelphia in 1787; the compromise between those who wanted the US to be represent the “people” (i.e., the white, male, usually property-owning people) and those who saw the US as a federation of independent states of equal dignity, sovereignty, and power who came together to form a “more perfect union.” The result, a House of Representatives allocated every ten years by population was conjoined with a Senate which represented the states (originally elected by state legislatures, not popular vote). An ugly and perhaps necessary compromise among many which enabled the deal to be done and the country to move forward.
However, unlike every other provision of the Constitution, the provision for equal representation can’t be changed; at least not through the ordinary methods of amendment. Article V says that “no State, without its consent, shall be deprived of its equal Suffrage in the Senate.” So, fixing this problem requires unanimous consent.
Not bloody likely. Flying pigs and parkas in Hades are more likely than Wyoming and North Dakota agreeing to give up a second Senator; after all, what can California, Texas, and Florida do about it? But before we get to the likely denouement of this constitutional conundrum, let’s look at the data.
I’ve taken the population data of the states at every census and added the projections for the next twenty years. To illustrate the issue of inter-state inequality, I’ve ranked the states by population and divided them into four groups and compared the top quartile with the bottom quartile. So, for the 16 states in 1800 (when Jefferson was elected) the average state in the top quartile was 6.5 time more populous than that in the bottom quartile. By 1850, the ratio was 9.5, by 1900 it grew to 14.6 and it crept up from there to 16.7 by the last census in 2010 (with a total US population of 309M).
We have had a long-term problem, continuously getting worse. Indeed, by now, the size of the problem has tripled from our nation’s founding. In 2010 a majority of the nation lived in the most populous nine states (i.e. represented by 18 Senators), while the least populous 12 states (with 24 senators) together comprised only 11M. Going forward, in 2030, US total population is projected to be about 358M, of which the top 12 states will have 223M and the bottom 12 will have 13.3M, for a ratio of almost 17:1. Hardly the picture of representative democracy.
Historically, we can look back to the British Parliament which hadn’t undergone ‘redistricting’ for centuries, with the result that by the early 1800s, booming cities such as Birmingham and Manchester, were drastically underrepresented as compared with rural areas. In the US, the provision for redistricting the House every ten years, means that such a mis-match doesn’t arrive. But the Senate, fixed as it is on state boundaries, has got a democratic problem. Vermont, Wyoming, Alaska, and North Dakota have a combined population about equal to that of Brooklyn.
But for the unanimity requirement in Article V, we could see a constitutional amendment that resolved this sensibly, for example, leaving every state with one senator and allocating the other fifty by population, or, to be truly democratic, we could divide the country into fifty districts with about the same population (about 6.5M each at today’s numbers) and they would each elect two senators. Lots to argue about in the details; but conceptually, not too complex.
So, let’s gaze into a political crystal ball and see what’s actually likely to happen. Issues arise around allocation of resources, or partisan differentials between rural/conservative views and cosmopolitan/progressive views lead to an impasse. Tensions mount. Die-hards for the dignity of Delaware or Montana insist on their traditional power. What do the large states with big metropolitan areas and more diverse populations do?
Here’s two ideas: First, there could be noises about secession; but since that didn’t work out so well last time, it would be couched differently, likely as a new constitutional convention to reconceptualize the United States and ensure democratic representation. I will talk some other time about what might come up at such an event, but if representatives of two-thirds of the people propose and ratify a new constitution, it’s hard to see how anyone (even a conservative Supreme Court) will stop that.
Second, the large states could start to split up. Texas’ admission to the Union in 1845 envisioned that it might into five states. California could split into ten states of 4M each (concurrently enacting an ‘inter-state compact’ among them to keep the scale efficiencies of certain functions in a single administration in Sacramento. Ditto for Florida, Pennsylvania and others. With at least a majority of the Senate in line, Congress could just admit San Diego, Pittsburgh, and Houston as new states and there is little Rhode Island or South Dakota could do about it.
Of course, the threat of either such course might do the trick and force a compromise. Small states would be smart to do so (they’d get a better deal), but they won’t until they’re forced to.
Stay tuned, and let me know in 30-40 years how this all turns out.