The Constitution's Anti-Majoritarian Bias

AP Photo/Elaine Thompson

Protesters hold signs outside the Washington State Capitol before Electoral College electors begin voting following the 2016 presidential election in Olympia.

The battle over the Constitution has been joined. Writing in the New York Post, National Review editor Rich Lowery has taken it upon himself to counter many of the arguments that liberals have lodged in the wake of the Kavanaugh confirmation that the Constitution is anti-majoritarian. Those arguments have pointed out that the two most recent Republican presidents decisively lost the popular vote but were elected nonetheless due to the anti-majoritarian Electoral College; that the Senate’s one-state, one-vote structure greatly magnifies the power of small states at the expense of popular majorities; and that as a consequence of those two anti-majoritarian distortions, we now have a far-right Supreme Court devoted to imposing its beliefs and biases on its disconsolate compatriots.

To which Lowery responds, in essence: Yes, and isn’t that great!

Lowery casts this battle as one of regions, asking why the fly-over nation should have to submit to the coasts. Noting that the Senate is hard-wired into our governing document, he opines:

The Constitution says the arrangement is un-amendable, stipulating in Article 5 setting out the amendment process that “no state, without its consent, shall be deprived of its equal suffrage in the Senate.” Even if this language can be struck by amendment anyway, it would require the assent of some smaller states that wouldn’t be enamored with reducing their own relative power so California can have more.

In other words, this is about Boise versus Los Angeles. It’s not about 100,000 Americans outvoting ten million.

But Lowery is certainly right that small states are hardly likely to strip themselves of their power in the Senate, and that even if Article 5 could be amended in Congress or a special convention, the requirement that three-quarters of the states must ratify that change would likely make that amendment unratifiable. For that matter, the disproportionate weight that the Electoral College gives to small states, by adding two College votes to their totals, would likely be resisted by many small states as well.

What compounds the anti-majoritarian bias of our Constitution is geographic clustering—the fact that big-city states are more diverse, younger, and more liberal, while smaller, more rural states are more culturally traditionalist, less diverse, and more prey to white nationalism and racism. We’ve seen such a division before, in the great sectional battle between North and South before the Civil War. The three-fifths rule was put in the Constitution to bolster the South’s representation in the House, since minus their slave populations, Southern states would be routinely outvoted in that body. The North’s growing frustration with and anger at what it termed “the Slave Power”—the South’s ability to use the Senate and its added strength in the House to obstruct the Northern majority’s desire to block the spread of slavery—was the proximate cause of the geographic breakup of the Democratic Party in 1860 and the founding and rise to power of the Republican Party in the years leading up to the war.

So we are again a House Divided by the fundamental issue of whether our nation will be governed by majority rule. As a civil war is both unimaginable and undesirable, what we need is a new constitution. This has been a siren song for some on the right, but American politics have reached the point where the left is now able to outvote the right on Election Days and, presumably, could do so on the contents of a constitution that takes the principles of majority-rule and one-person, one-vote as the keystones of American democracy. 

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