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.