Credit: nshepard / flickr

Teachers of American government routinely turn to current affairs to illustrate the strengths — and shortcomings — of the U.S. Constitution.

In California especially, they’ll be able to point to the confirmation of Brett Kavanaugh to the U.S. Supreme Court as an especially compelling illustration of an enduring deficiency in the Constitution, and one that undermines the U.S. claim to to be a true democracy.

Especially egregious is the provision (Article I, Section 3) that provides each state equal representation in the Senate, regardless of its population — and then giving this unrepresentative body, rather than the far more democratic House of Representatives, the responsibility to confirm justices to the Supreme Court.

The effect of the “Connecticut Compromise” agreed to in 1787 was glaringly on display when Senate Majority Leader Mitch McConnell, R-KY and Judiciary Committee chair Sen. Charles Grassley, R-Iowa, made their case for Kavanaugh before the pivotal “cloture” vote on the Senate floor. Democratic Leader  Sen. Chuck Schumer, D-NY, and Sen. Dianne Feinstein, D-California, the ranking member of the Judiciary Committee, also spoke.

McConnell and Grassley represent states with a combined total population of 7.5 million, while Schumer and Feinstein come from states with a combined population of nearly 60 million.

That helps explain why the eminent Yale political scientist Robert A. Dahl described the Senate as a “monumental form of unequal representation” in his book “How Democratic is the American Constitution?”

Dahl, who died at age 98 in 2014, defined “unequal representation” as “any system where in contrast to the principal of one person one vote, the votes of different persons are given unequal weights.”

Lest you think Dahl was one of those radical Democrats routinely condemned by President Trump, the New York Times in its 2014 obituary wrote that Dahl was “widely regarded as his profession’s most distinguished student of democratic government.”

The 51-49 Senate vote that allowed Kavanaugh’s nomination to go forward came from senators who represented only 44 percent of the U.S. population.

“The inequality in representation is a profound violation of the democratic idea of political equality among all citizens,” wrote Dahl.

In this respect, Dahl noted, the U.S. is an outlier compared to most other democratic countries and even more so when compared to countries with a federal system — one that divides power between the federal government and smaller units like states.

“Unequal representation in the U.S. Senate is by far the most extreme,” he wrote. “In fact among all federal systems, including more newly democratized countries, the degree of unequal representation in the Senate is exceeded only by Brazil and Argentina.”

Kavanaugh may be familiar with these views, as Dahl was a prominent professor at Yale while Kavanaugh was a student there. Dahl points out that among the biggest opponents of the Senate equal representation provision were James Madison and James Wilson, two of the chief architects of the Constitution.

Madison expressed doubts about the need to protect the interests of states simply on the basis of how many lived there.  James Wilson asked memorably “Can we forget for whom we are forming a government? Is it for men, or for the imaginary beings called States?”

Alexander Hamilton also questioned the unequal representation provision.

“As states are a collection of individual men, which ought we to respect most, the rights of the people composing them, or the artificial beings resulting from their composition? Nothing could be more preposterous or absurd than to sacrifice the former to the latter. It has been said that if the smaller States renounce their equality, they renounce at the same time their liberty. The truth is it is a contest for power, not for liberty.”

Dahl says that Madison’s concerns have been affirmed by events in the ensuing two centuries. “Unequal representation has unquestionably failed to protect the fundamental interests of the least privileged minorities,” he wrote. “On the contrary, unequal representation has sometimes served to protect the interests of the most privileged minorities.”

Adding to millions of Californians’ unhappiness is the related issue of an undemocratic Electoral College. It too violates the principle of one person one vote, which should be a basic feature of any democratic system. The Electoral College is the only reason Trump is in the White House and was in a position to nominate Kavanaugh.

All this provides fertile ground for teachers of American government — a class needed to earn a high school diploma in California. Teachers will have to come prepared to answer tough questions from students about these democratic flaws in the U.S. constitution that voters in California are subjected to more than any other state, simply because of its size.

Teachers will also have to explain to their students that they will have to be prepared to live with these deficiencies throughout their lives, because legislators from small population states that proportionately benefit from them will never vote to repeal them.

Students could, of course, move to Wyoming when the are voting age. Their vote there vote would carry far more weight, at least in sending a senator to Washington. In 2016, Wyoming re-elected Mike Enzi to the Senate with a mere 121,000 votes, out of a total of 168,000 votes cast. By contrast, newcomer Kamala Harris garnered 7.5 million votes, out of 12.2 million cast by the California electorate.

Yet Harris and Enzi’s votes carried the same weight in the confirmation battle. That is why Kavanaugh is now a justice on the U.S. Supreme Court, and will likely be one for decades to come.

 

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  1. Dawn Ricker 3 weeks ago3 weeks ago

    Please, teach the Constitution not political agendas.

  2. Charles E. Martin 3 weeks ago3 weeks ago

    I am glad that California and Wyoming are exactly equal in the Senate. And I am thrilled with the Electoral College system. I do not want my nation run by the yogurt-crunchers out in California.

  3. Jason 4 weeks ago4 weeks ago

    Louis, There is one glaring problem with your attempt to denegrate powers given to the Senate. If you believed the House would have been more reflective, you would be right. The problem in that scenario is that there are at current 42 more Republicans in the House than Democrats. Why? Because the districts represented throughout the country elected Republicans in a greater number. So in the unjust confirmation of Kavanaugh you purport would have … Read More

    Louis,
    There is one glaring problem with your attempt to denegrate powers given to the Senate. If you believed the House would have been more reflective, you would be right. The problem in that scenario is that there are at current 42 more Republicans in the House than Democrats. Why? Because the districts represented throughout the country elected Republicans in a greater number. So in the unjust confirmation of Kavanaugh you purport would have only had a larger margin. Your only logical objection at this point can be that you object to the constitutional powers rendered only when your ideology sees an unfavorable outcome.

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    • Louis Freedberg 4 weeks ago4 weeks ago

      Not saying the House would have been more reflective .. just that it, in theory at least, is a more democratic institution, in that each representative is elected by approximately the same number of people. The problem is that gerrymandering means that representatives are elected by districts composed in different ways, barriers to voting are greater in some states than others, so it is not a purely democratic institution — but certainly is far more so than the Senate.

  4. Charles E. Martin 4 weeks ago4 weeks ago

    This is the United STATES of America. Not the united people. States set up this federal government and the states select the president. The Senate with equal representation for each state, protects the smaller states from being trampled by the larger population states. Good.

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    • Louis Freedberg 4 weeks ago4 weeks ago

      If all we cared about is having states represented, not people, why have a House of Representatives elected with disproportionate number of seats based on the population in the those states?

      • Jame White 3 weeks ago3 weeks ago

        Have you read our Constitution? The House of Representatives was designed to handle a certain amount of the work load required to operate the Government. The Senate was designed to handle the other areas of work. Both chambers require the approval of the other to pass bills on the President. The House was created to give a representative based solution to the issues facing the nation. States with larger populations have more representation; however, that … Read More

        Have you read our Constitution? The House of Representatives was designed to handle a certain amount of the work load required to operate the Government. The Senate was designed to handle the other areas of work. Both chambers require the approval of the other to pass bills on the President. The House was created to give a representative based solution to the issues facing the nation. States with larger populations have more representation; however, that doesn’t mean that all the state representatives have the same agenda. Take California for example, 53 representatives. You would think they are all Democrat based on how our state operates, but you would be wrong. The more conservative areas are represented by conservative officials and thus lessen the impact of the predominately democrat state.

        The Senate is in place to provide absolute equality in representation for each state. This eliminates the possibility of LA, San Fransisco, and NY deciding the complete and total destruction of our nation. Without this genius bit of Constitution from our forefathers, I doubt our county would have made it through the industrial revolution, that we would have the 13th, 14th, 15th, 17th, 19th, 22nd, 23rd, 24th, 26th and 27th amendments. If the Senate was based by population, you can bet that none of these would pass, but because there is equal representation throughout the country regardless of population, we have these.

  5. John McConnell 4 weeks ago4 weeks ago

    The United States in a “republic” not a “democracy.” Applying your reasoning to the world, China and India should rule the world.

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  6. Cynthia Kaitfors-Smith 4 weeks ago4 weeks ago

    I find your article extremely one-sided and offensive. Why can’t you all just be fair and not stir the pot. Many of us are so tired of the divisive rhetoric.

    Replies

    • Louis Freedberg 4 weeks ago4 weeks ago

      With respect, sure how quoting Founding Fathers James Madison, James Wilson and Alexander Hamilton — and basically stating what one of the most distinguished political scientists of our time has argued — can be dismissed as “divisive.”

  7. James STEELE 4 weeks ago4 weeks ago

    So, the teachers don't like the process under which Supreme Court judges are decided. That problem was caused by a demented minority attacking Senators in the halls and providing false witnesses under oath to block a legal confirmation. Two: The Electoral College was designed to prevent the exact mob rule we saw the Democrats pulling to destroy the constitutional process. The Electoral college was set up so that the population centers would not be … Read More

    So, the teachers don’t like the process under which Supreme Court judges are decided. That problem was caused by a demented minority attacking Senators in the halls and providing false witnesses under oath to block a legal confirmation. Two: The Electoral College was designed to prevent the exact mob rule we saw the Democrats pulling to destroy the constitutional process. The Electoral college was set up so that the population centers would not be able to dictate the outcome of a Presidential election. This way, the candidates have to go to everyone to ask for their vote, not just nine cites in America and the rest of us stand there and have no voice. Teachers should know this, as they should be teaching civics and the Constitution. This has zip to do with education and everything to do with Democrat waning power.

  8. Brenda Adams 4 weeks ago4 weeks ago

    I understand that Trump is office because of the electoral votes.What I don’t understand is why spend millions of dollars, long lines of voters, bickering over voter fraud and people losing money to support their families for having to take time off of work to stand in those long lines to vote, when no-ones vote counts anyway when it’s the electoral college that puts a president in office. Can someone explain that one foe me?

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    • Joe 4 weeks ago4 weeks ago

      We're not in a truly democratic system. We have appointed electors based upon whom we have voted into office. This is simply how the Constitution was written, and if enough of the states wanted to change it, they could (though not "quite" as simple as that). As far whether or not this is a good thing is a matter of perspective. For someone who favored Trump, this would be a great … Read More

      We’re not in a truly democratic system. We have appointed electors based upon whom we have voted into office. This is simply how the Constitution was written, and if enough of the states wanted to change it, they could (though not “quite” as simple as that). As far whether or not this is a good thing is a matter of perspective. For someone who favored Trump, this would be a great thing. It also affects how candidates campaign, why you don’t see candidates typically heading off to Alaska or Rhode Island, with their 3 votes.

      However, I’m sure that same Trump support person is likely rather miserable in a state like California, whose one side is so overwhelming, it doesn’t really matter what the other side says, and I’m sure they feel “why bother” at the polls as well.

      In the end, its rather sad how polarized, entrench, antagonistic, and down-right nasty each side has gotten towards one another. I honestly believe each side has contributed to the mess (and I refuse to get into a debate as to the degree-its bad enough that it simply exists). We’ll likely be like this for some time.