It Is Broken, but No One Wants to Fix It: A Call for Reform of the United States Constitution

Commentary by Alan Gibson, Department of Political Science

Americans almost uniformly oppose reform of their venerated Constitution. A variety of concerns and commitments are expressed in this opposition. The most sophisticated citizens are concerned that a second constitutional convention would be filled with partisan politicians, captured by interest groups, and conducted by men who cannot live up to the likes of James Madison. Others link America’s economic success and military prowess directly—and problematically—to its Constitution. Still others blame contemporary politicians for any problems. In general, Americans are angered at even the thought of reforming this icon in the American civil religion. But the old trope that most predictably and forcefully arises in opposition to constitutional reform is “if it ain’t broke, don’t fix it.”

While constitutional reform involves risks, the American Constitution is indeed broken and should be reformed. In particular, the Constitution contains deep structural flaws that violate one of our most fundamental democratic principles: political equality. The prime culprit here is equal representation in the Senate which creates the most malapportioned legislative body in any democratic nation in the world. Over 33 million Californians elect two senators, and so do the half a million citizens of Wyoming. Californians therefore cast votes for senators that have less than one-sixtieth the strength of Wyomingians.

Equally important, small-state senators and the residents they represent have a variety of advantages in the legislative process. Senators from small states are able to forge much more intimate relationships with their constituents than the senators of large states, face less competitive elections, and spend less time fund-raising. They thus have more time to seek out and secure leadership positions in the Senate. Securing leadership positions, in turn, puts senators from small states in a better position than senators from large states to secure massive and often monumentally wasteful “pork barrel” projects. More broadly, the residents of small states receive substantially higher per capita benefits from federal programs than large-state residents, and billions of taxpayer dollars are transferred every year from the residents of large states to small states. Finally, equal representation in the Senate disadvantages racial minorities—especially Hispanics. Minority populations are concentrated in large states. This not only means that their votes influence the election of only a relatively few number of senators, but that minority candidates have a more difficult time winning elections in vast electoral districts that contain mostly citizens of a different race.

If equal representation in the Senate creates a privileged minority of citizens based on the arbitrary consideration of where they live and disadvantages real minorities in the political process, the Electoral College is a constitutional remnant that serves no useful purpose today. Contrary to the claims of its defenders, the Electoral College does not broaden the base of campaigning by presidential candidates or require candidates to build a cross section of support. Such claims are refuted by charting the travels of recent presidential candidates and examining the electoral maps from 2000 and 2004. Furthermore, direct national election would not cause a sweeping search for election fraud, unduly strengthen third-party candidates, or weaken the legitimacy of the elected president. Most importantly, the Electoral College inappropriately weights the votes of some citizens over others, raises the prospect of electing a president who did not win the popular vote, and prevents the residents of many states from ever casting a meaningful vote for president of the United States (because they live in a state dominated by the opposing political party).

What are the chances that the Senate and the Electoral College will be reformed? Reform of equal representation in the Senate would require either unanimous consent of all the states (because Article 5 stipulates that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate”) or a constitutional amendment to alter this provision. Reform of the Electoral College has repeatedly been blocked by the small states in Congress, while the chances for an “interstate compact” to effectively abolish the Electoral College were greatly reduced recently when Gov. Schwarzenegger vetoed this proposal in California in October.

To say that reform is unlikely is not, however, to concede that pursuing it is imprudent. There is nothing prudent about idly accepting the injustices and ill effects caused by the Constitution. Put more bluntly, Americans need to confront the unreflective obeisance toward all things Founding that too often parades as wisdom in our country, take a sustained and detached look at the highest law of the land, and systematically reform it to satisfy the democratic values that we all cherish.