A few blocks from the glittering Constitution Center in Philadelphia is America’s oldest continuously inhabited street, Elfreth’s Alley. The houses are tiny and cramped, because people were significantly shorter in the eighteenth century,1 and because the Framers and their friends generally did not believe that you needed to invent new names for extraneous spaces in your homes—there are no great rooms on Elfreth’s Alley and no bathrooms large enough to host an intimate dinner party. People actually live in some of these houses, but no contemporary real estate company would ever design such dwellings.
The American Constitution is the Elfreth’s Alley of global governance documents, a text that should be seen and admired by tourists, appreciated by historians, and lauded for its contribution to the progress of human liberty. What it should not be, however, is precisely what it currently is: the immobile operating system for an advanced, postindustrial democratic society in the year 2018. This archaic document systematically disadvantages progressives in national elections, both by design and by accident; the American Constitution is a teardown. Unfortunately, like a building that has been designated as a historical landmark by the municipal government, we can’t tear down the Constitution. The Framers, with a combination of diabolique and ingenuity, made it almost impossible to amend. Other countries, when faced with serious political, social, or economic problems, are generally able to adapt their constitutions to suit changing times. In America, we are still arguing over the meaning of sentences drafted over candlelight by slaveholders nearly one hundred years before Darwin posited the theory of evolution.
The U.S. Constitution is tremendously lucky to have in its corner a group of cheerless fanatics who believe that our laws must conform to the literal text of the Constitution with no allowance made for changing times, developments in human society, or the objective needs of the present. This doctrine, which was rightly considered completely insane by legal scholars and practitioners within living memory, is known as originalism, and in any other (say, religious) context its adherents would with some justification be referred to as fundamentalists or zealots. The late Antonin Scalia argued that the Constitution should mean what it meant in 1787, or when it was amended. As he argued, “It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.”2 In other words, the will of the people, as enshrined in a document drafted more than two centuries ago, will always override the will of the people today. As University of Chicago law professor William Baude puts it, originalists believe “that the words in the Constitution have the same meaning over time, even if modern circumstances change, and even if we wish the words meant something else.”3 For Scalia, those meanings are to be derived from the words in the text as they were understood at the time, rather than what we can glean about the authors’ intent from other sources. Other originalists do care what the Framers actually intended when they drafted the Constitution.4
The success of originalism can be traced to an ingenious movement launched by judicial radicals in the 1980s, who wanted to build a counterhegemonic movement to fight prevailing liberal interpretations of constitutional jurisprudence as embodied by the many decisions of the Warren Court, including Roe v. Wade. Recognizing that conservative political victories since 1968 had not been sufficient to transform the courts, conservative legal scholars, donors, and activists built a movement to compete with liberals on the level of law schools, professional networking, and judicial appointments. As Johns Hopkins University political scientist Steve Teles notes, what they realized was that “ideas need networks through which they can be shared and nurtured, organizations to connect them to problems and to diffuse them to political actors, and patrons to provide resources for these supporting conditions.”5 They built these networks by pursuing an “indirect approach”6 that involved the creation of the hard-right Federalist Society, a group that started out as a conference at the University of Chicago but has morphed into a lavishly funded group of originalists from which nearly all Republican judicial appointments since George W. Bush have been drawn. By contesting liberal legal theories in “the professions and universities where many of the key resources for elite political change are rooted,” Federalist Society legal entrepreneurs were able to increase the visibility and hence the legitimacy of their ideas.7 What was once shocking and unthinkable—that contemporary problem-solving should be totally subsumed to the literal interpretation of the Constitution—gradually became mainstream conservative judicial philosophy when members of the Federalist Society graduated from law school and made their way into important positions of power in the academy, the legal world, and the federal and state judiciaries.
The Federalist Society and its allies did indeed succeed in building a formidable philosophical movement, linked to conservative activist networks, designed to execute a slow-motion takeover of the federal judiciary. That project came to fruition last year when President Trump replaced the retiring Anthony Kennedy with hardliner Brett Kavanaugh, giving conservatives their first-ever originalist majority and the opportunity to realize their dreams of rolling back the administrative state and returning America to an imagined pre–New Deal utopia. At heart, “originalism” as a doctrine is used as a convenient smokescreen to pursue a highly conservative interpretation of the Constitution. Perhaps the most egregious example is the Second Amendment, which has been interpreted by the Roberts Court to mean an unlimited right for private citizens to carry arms. This interpretation makes no sense when looking at the literal words of the text, which contain no such provision, nor by the intent of the Framers, who explicitly rejected an individual-rights model of firearms, which was available to them in certain state constitutions, including Pennsylvania’s.8 By creating a new right (an individual right to bear arms) that is plainly not supported by the text of the Constitution or the debates that surrounded the issue at the time, originalists engaged in the very behavior—judicial activism—that they claim to abhor, by overturning the clear will of the public as expressed through state and municipal legislation. When, for instance, the Roberts Court invalidated Washington, D.C.’s prohibition on firearms, the justices were engaging in the very “legislating from the bench” that they so objected to during the Warren Court.
To make matters worse, originalists are often unwilling to head down the staircase and into the basement where their own doctrine leads them. For instance, the Framers clearly did not intend for their descendants to have the right to walk into the town square carrying their own personal semiautomatic machine guns capable of gunning down an entire British regiment in three minutes. They surely did not intend for their free speech protections to be used as justification for hollow-hearted billionaires to dump millions of dollars into unwatchable campaign attack ads designed by the five worst human beings in every graduating class. But according to the acolytes of this particular school of the jurisprudence, the Constitution is, in the words of Antonin Scalia, “not a living document. It’s dead, dead, dead.”9 Nothing matters other than the narrow meaning of the document’s words, even if it means saddling the United States with a series of medieval problems that other societies have easily dispensed with.
Strict adherence to the literal text of the Constitution causes contemporary America all manner of needless problems and crises, from the depressing regularity of mass shootings to the unavailability of abortion for so many American women, who have seen the Court gut the spirit of Roe v. Wade over time. But the Constitution also created a total mess of a political system. If that mess was equally problematic for Republicans and Democrats, you would probably not be holding this book in your hands. But almost all of the design flaws in U.S. politics today empower Republicans at the expense of Democrats. The most egregious of these affronts to the spirit of democratic rule is the structure of the United States Senate, surely the most malapportioned legislative body on the face of Earth. Home at any given time to dozens of semi-fossilized windbags yammering on about the sacrosanct nature of inane procedures like the filibuster and “senatorial courtesy,” the Senate gives each state two and only two Senators. This is how you end up having to shake down even the most sparsely populated of American states for two human beings capable of performing the kind of political work necessary to keep a modern country of 320 million people functioning properly. As in an extremely deep fantasy baseball league, you sometimes need to reach very far for talent, which is the only possible explanation for how someone like Republican Senator Mike Rounds of South Dakota has a job at the highest levels of government in the most powerful country in the history of the planet. Most Americans wouldn’t be able to pick this guy out of a lineup of two people, with good reason.
However, we’ve got bigger issues than the elevation of nondescript nobodies from nowheresville to the highest offices in the land. The graver problem is that the way the American experiment unfolded over the last two hundred and fifty years created a series of states with tiny populations that have the same right to representation in the Senate—and thus effective veto power over the public policy direction of the country—as the 38 million citizens of California. You can’t lay too much blame at the feet of the Framers. At the time California was the property of the Spanish Empire. The small states at the Constitutional Convention—Delaware and Rhode Island are the real villains in this story—refused to commit to the new union unless the larger states agreed to give them equal representation in perpetuity. As the eminent political scientist Robert Dahl argued in How Democratic Is the American Constitution? “The solution of equal representation was not, then, a product of constitutional theory, high principle, or grand design. It was nothing more than a practical outcome of a hard bargain that its opponents finally agreed to in order to achieve a constitution.”10
This completely absurd distortion of democratic principles is often comically rationalized by constitutional pedants as part of some well-thought-out scheme to insure the safety and balance of our democratic experiment. But this is nonsense. The Senate’s structure was the result of a lousy compromise. There is no other legislative body on the face of Earth in possession of both the Senate’s sweeping powers over American public policy as well as its comical lack of democratic balance. The largest population imbalances between the states in 1787 are tiny in comparison to today’s numbers.
The problem is getting worse, rather than better, over time, as large states are growing more quickly than the small states. As political scientist Jeffrey Ladewig and attorney Mathew Jasinski argued in 2003, “while the populations of small states have grown, their relative populations have decreased, which has increased the number of relatively small states.”11 In other words, the degree to which the average Californian or Texan is disadvantaged in the Senate relative to the average Rhode Islander or North Dakotan has grown over time. Residents of the larger states may or may not quite understand how the current electoral system deprives them of influence. Most of the largest U.S. states—chiefly California, New York, Illinois, and Texas—haven’t been competitive at the presidential level in a generation, meaning in addition to having almost no power in the U.S. Senate, voters in these states are also completely ignored in presidential election years thanks to another monstrosity bequeathed to us by the Framers, the Electoral College. This profoundly undemocratic institution has gifted the presidency to a Republican runner-up twice this century and remains one of the hardest things about American politics to explain to outsiders who naturally expect that the winner of a national election for a single office to be the person with the most votes. As Dahl, one of the Constitution’s most insightful critics, argued about the Electoral College, “Probably nothing the Framers did illustrates more sharply their inability to foresee the shape that politics would assume in a democratic republic.”12
The Constitution is also obscenely difficult to amend. The procedures that the Constitution’s architects put into place to alter our country’s charter are the legal equivalent of an advancing army blowing up a bridge behind it. Changing the Constitution requires a two-thirds majority in both chambers of Congress, something that now generally happens only to name monuments and declare uncontroversial national holidays. If that were the only bar to clear, it would still be pretty high, but surmountable. But in addition to the supermajorities in Congress, the Constitution also demands that three-fourths of state legislatures also ratify the amendment. (Curiously, there is no role for the president.) The Constitution has only been amended twenty-seven times in its two hundred and thirty years of existence, and the pace of change has slowed dramatically in modern times. The Constitution has not been amended at all since 1992, when a long-stalled amendment related to congressional salary increases was finally ratified, and it has not been changed at the behest of modern Americans since 1971, when the Twenty-sixth Amendment lowered the voting age from twenty-one to eighteen, partly due to outrage that young people were being sent to fight and die in Vietnam yet could not register their approval or disapproval of national policy.
One way of thinking about how polarization has immobilized the Constitution is that the amendment to change the voting age would never be ratified today, since younger voters now lean so heavily Democratic that Republicans would dismiss such a massive extension of voting rights out of hand. Eighteen- to twenty-four-year-olds voted for Hillary Clinton over Donald Trump by a yawning twenty-two-point margin, and you can rest assured that no Republican in Congress or in state legislatures would agree to any change to our founding document that privileges Democrats, even if it is the right thing to do. This is why the progressive dream of amending the Constitution to overturn the Citizens United Supreme Court decision is so farcical—unless Democrats magically find themselves in control of three-quarters of our state governments as well as congressional supermajorities, such an amendment is dead on arrival. Even something as sensible as amending the Constitution to abolish the Electoral College has been and will continue to be dismissed by Republicans simply because they are the beneficiary of this inequity. The only way we would reach a national consensus on the Electoral College would be if a Democrat won the presidency despite losing the popular vote, something that very nearly happened in 2004, when John Kerry came within one hundred thousand votes of flipping Ohio and thus capturing the presidency despite losing to George W. Bush by more than three million votes nationwide.
The near-impossibility of amending the Constitution means Americans are stuck with a series of electoral procedures and national policies that they actively despise. For most of this century, a wide majority of Americans has supported amending the U.S. Constitution to abolish the Electoral College and to choose the winner of presidential elections according to the crazy principle of who wins the most votes.13 Between 2012 and 2016 that majority narrowed, and in the aftermath of the 2016 election, 47 percent of Americans supported the Electoral College as is. But it’s still underwater. The Republican appointees of George W. Bush and Donald Trump have helped preserve interpretations of the Constitution that are deeply unpopular. For instance, a twenty-one-point majority of Americans supports stricter laws on guns,14 yet the country is held hostage to its obsolete Second Amendment and the judicial zealots whose interpretation of the Framers’ words is more or less settled constitutional law, whereas a dedicated and loud minority of gun fanatics opposes all laws restricting what kind of guns Americans can own and even holds up research into how we might be mass murdered by AR-15–wielding misanthropes somewhat less often.15 One poll suggested that the Equal Rights Amendment has the support of 94 percent of Americans,16 yet is going nowhere anytime soon thanks to implacable opposition from conservatives. Antonin Scalia, the chief originalist on the Supreme Court until his sudden death in February 2016, spoke for the conservative position on the ERA when he argued that “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t.”17 A significant majority of Americans expresses satisfaction with America’s pioneering system of public education, yet students and families watch helplessly as market fundamentalists perform a slow-moving, hostile takeover of the system, while the perfectly reasonable option of writing equal education funding into the Constitution is just off the table. And the structure of the Senate is doubly impossible to change: The Constitution plainly states that “no state, without its consent, shall be deprived of its equal suffrage in the Senate.” The small states will obviously never grant that consent, which would diminish their power. Reapportioning the Senate is a nonstarter.
The U.S. Constitution also features, destructively, the most frequent legislative election schedule in the entire world by putting the entire 435-member House of Representatives up for election every two years. Two years probably seemed like a really long time in 1787—it was certainly much longer than most newborns could expect to live prior to the invention of antibiotics. Back then it made some sense to hold such frequent elections given the rate at which congressmen were going pecs up—in the first ten years of the new republic, twelve congressmen died in office (though not necessarily in an office).
The Framers certainly could not have foreseen that our national elections would turn into a multibillion dollar, fifty-ring circus that consumes an absurd amount of the time available to our national representatives. House minority leader Nancy Pelosi told NPR in 2012 that she attends about four hundred(!) fundraisers every single year.18 Former House member Walt Minnick (D-ID) said that he took just five days off from fundraising after winning his seat in the 2008 elections. In 2013, the Huffington Post obtained a PowerPoint presentation prepared by the Democratic Congressional Campaign Committee recommending that new members spend four hours a day making fundraising calls.19 Rep. Rick Nolan (D-MN) claims that both parties encourage their members to spend an astonishing thirty hours a week fundraising, at call centers set up on the Hill for maximum convenience.20 If elections were less frequent—say, every four years rather than every two—it would somewhat relieve members of Congress of an obligation that (a) they all detest and (b) prevents them from doing the people’s business with their working hours. It seems implausible that the American people, who in general are not especially diligent or enthusiastic about voting in the first place, would mind being consulted less often about their House representatives. But, alas, there it is in plain, incontestable language in Article 1, Section 2: “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States.” So here we are, two hundred and thirty years later, scrambling for elections what seems like every five minutes because of the whims of our long-dead ancestors.
Some of the Constitution’s flaws were written into the text but have not held up very well with the passage of time, like lifetime tenure in the federal court system. Others, however, are crimes of omission, like the document’s silence about voting. As Garrett Epps argued, “The right to vote of citizens of the United States remains a kind of stepchild in the family of American rights, perhaps because it is not listed in the Bill of Rights, and perhaps because Americans still retain the Framers’ ambivalence about democracy.”21 There are perfectly understandable reasons why the Constitution offers relatively slim guidance about voting. At the time of the founding, there was not a single functional democracy as we would understand the term today in the entire world, voting by secret ballot existed nowhere, and the authors distrusted ordinary citizens to make wise decisions anyway. The Constitution’s architects, of course, infamously left voting rights to the states, most of which restricted the franchise to white, male property owners. And they would have regarded the subsequent expansions of voting rights in the United States with considerable horror. The Constitution also contains no guidance about how to conduct elections to the House of Representatives. In fact, until the mid-nineteenth century, many congressional districts in the United States had multiple winners, a fact that has been lost to history. The entire architecture of American elections, from the size of the districts to the complex system of party primaries, was created long after the Constitution was written and would be shockingly easy to change.
The most glaring and problematic omission from the Constitution is its silence about how to resolve disagreements between the executive and legislative branches of government. The direct election of a president, separate from the legislature, is one of the key distinctions between our presidential system of government and parliamentary democracies. In parliamentary systems, the prime minister is an elected member of parliament and nearly always the leader of the party with the most seats. As the political scientist Juan Linz once put it, parliament is “the only democratically legitimate institution.”22 You can’t have “divided government” in a place like the United Kingdom. You can have an election where no party gets a majority and must govern in conjunction with other groups. But you cannot have a situation where one party is given the right to draft the laws and another party has the right to sign and carry them out. The fact that the clash between the executive and legislative branches has never resulted in the breakdown of democracy in the United States23 is more luck than design. In Linz’s words, “The American system works or has worked in spite of, rather than because of, the presidential constitution of the United States.”24
In “The Perils of Presidentialism,” one of the most famous stand-alone articles ever written in the field of political science, Linz says that the creation of two competing centers of power and legitimacy is one of the most combustible features of presidential democracies and one of the main reasons that so many countries that use versions of American democracy have collapsed repeatedly into authoritarianism. Holding legislative elections in the middle of the executive’s term only makes matters worse—voters have nearly always empowered the opposition party in those elections, but because the legal order leaves the president in place, even if he is deeply unpopular, it just exacerbates the problem. In that sense, American politics probably would have been more functional had Republicans toppled President Obama in 2010 or 2014 (or had Democrats been able to dislodge George W. Bush from power in 2006). Instead, voters were delivered the worst of both worlds because both Obama and his congressional adversaries believed they had been granted a mandate to pursue their irreconcilable visions of public policy.
To be sure, this arrangement has its defenders. “Checks and balances” seems to be one of the few governance concepts successfully taught to high school students in this country. Political scientist David Mayhew has long argued that divided government actually works pretty well. “Divided party control is not a problem,” he claimed in a 2009 article25 that cited the productivity of the 110th Congress, which was controlled by Democrats but passed a significant amount of legislation signed by Republican President George W. Bush. Mayhew made this argument, at book length, about the entire postwar period from 1946 to 2002. Divided government may increase dysfunction, he claimed, but “important laws have materialized at a rate largely unrelated to conditions of party control.”26 However, Mayhew’s investigation, and his conclusions, are drawn from a particularly unusual period of party comity in U.S. national history, in which there was substantially more overlap in ideology than there was, for example, when pro-slavery Democrats controlled Congress in the early 1850s and the last Whig president, Millard Fillmore, ground policymaking to a halt. The Thirty-second Congress (1851–1853) was one of the least productive in the history of the Republic, passing only seventy-four bills that were ultimately signed by the president.27 We all know where that led. One could argue that the issues facing us today are similarly grave, and the differences between parties just as unbridgeable.
Unfortunately, directly addressing the Constitution’s shortfalls in the current political climate is not feasible. A constitutional convention can technically be called when two-thirds of the states express their desire for one, but such a path poses incredible risks for everyone involved. Although there is actually a little-known and little-talked-about movement gaining steam to do exactly that—mostly from red-state legislatures wanting to amend the Constitution to pass a balanced budget amendment, and from progressives disillusioned with the Citizens United decision—once a convention is called, then the entire constitutional order could theoretically be rewritten.28 And one thing is for sure: if that convention were to happen today, we would be in for an even more conservative constitutional regime than the one we already have, because conservatives are in control of so many state legislatures.
This is why a new constitutional convention has also become a kind of pet project of the extreme right, with notable proponents like the American Legislative Exchange Council (ALEC), Texas Governor Greg Abbott, and Florida U.S. Senator Marco Rubio. If Republican extremists were somehow to control the balance of power in such proceedings, the results would be extraordinarily ugly, with a new legal order that diminishes the ability of the federal government to spend money addressing national problems. Indeed, were such a convention actually on the horizon, it could raise the stakes of national politics to unbearable and possibly disastrous and violent levels. The Constitution is also sufficiently vague on the subject of this convention that it would inspire all kinds of problematic jockeying and disagreement—how are delegates to that convention elected? Does Congress need to ratify any amendments made? How would the public react to their representatives calling a convention even though no one has campaigned on it or even told the voters that this was coming?
All of this means that if progressive leaders are going to craft workarounds to some of the problems of contemporary American politics, they are going to have to do so within the framework of the U.S. Constitution rather than outside of it.
To do this, Democrats and their allies are going to have to hold the line for the remainder of Trump’s term in office. Remaining unified as a party to obstruct and thwart as much of the GOP agenda as possible will help make the GOP brand even more toxic than it already is. And if and when Democrats recapture state and national power in 2018 and 2020, they must design clever workarounds to the Constitution’s flaws, and rectify the institutional power imbalance that currently favors the GOP and promises to do so indefinitely absent a massive and sudden shift in the political, economic, and social values of rural Americans. Activists and partisans must, for now, give up the dream of amending the U.S. Constitution. Instead, they should urge their leaders to use the powers that they actually have, to increase the number of states in the union, change the way the House is elected and increase its size, add additional justices to the Supreme Court, and enact sweeping changes in how we vote and who is allowed to do so. These changes, none of which require constitutional amendments, should allow Democrats and their allies, including newly empowered third and fourth parties that will caucus with Democrats, to finally break the gridlock that has characterized national policymaking since the 1990s and to transform the United States into a functional modern social democracy that, for the very first time in history, successfully delivers a bare minimum of security, opportunity, and genuine equality to all of its citizens. These changes will not eliminate each of the Constitution’s premodern features or resolve all of the tensions that the document created, but they will bring the United States much closer to the evolving practices of other democratic societies, and most importantly, they will overcome the Constitution’s systematic bias against the contemporary Democratic coalition.
First, though, they need to get themselves back into power.
Here’s how.
A few blocks from the glittering Constitution Center in Philadelphia is America’s oldest continuously inhabited street, Elfreth’s Alley. The houses are tiny and cramped, because people were significantly shorter in the eighteenth century,1 and because the Framers and their friends generally did not believe that you needed to invent new names for extraneous spaces in your homes—there are no great rooms on Elfreth’s Alley and no bathrooms large enough to host an intimate dinner party. People actually live in some of these houses, but no contemporary real estate company would ever design such dwellings.
The American Constitution is the Elfreth’s Alley of global governance documents, a text that should be seen and admired by tourists, appreciated by historians, and lauded for its contribution to the progress of human liberty. What it should not be, however, is precisely what it currently is: the immobile operating system for an advanced, postindustrial democratic society in the year 2018. This archaic document systematically disadvantages progressives in national elections, both by design and by accident; the American Constitution is a teardown. Unfortunately, like a building that has been designated as a historical landmark by the municipal government, we can’t tear down the Constitution. The Framers, with a combination of diabolique and ingenuity, made it almost impossible to amend. Other countries, when faced with serious political, social, or economic problems, are generally able to adapt their constitutions to suit changing times. In America, we are still arguing over the meaning of sentences drafted over candlelight by slaveholders nearly one hundred years before Darwin posited the theory of evolution.
The U.S. Constitution is tremendously lucky to have in its corner a group of cheerless fanatics who believe that our laws must conform to the literal text of the Constitution with no allowance made for changing times, developments in human society, or the objective needs of the present. This doctrine, which was rightly considered completely insane by legal scholars and practitioners within living memory, is known as originalism, and in any other (say, religious) context its adherents would with some justification be referred to as fundamentalists or zealots. The late Antonin Scalia argued that the Constitution should mean what it meant in 1787, or when it was amended. As he argued, “It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.”2 In other words, the will of the people, as enshrined in a document drafted more than two centuries ago, will always override the will of the people today. As University of Chicago law professor William Baude puts it, originalists believe “that the words in the Constitution have the same meaning over time, even if modern circumstances change, and even if we wish the words meant something else.”3 For Scalia, those meanings are to be derived from the words in the text as they were understood at the time, rather than what we can glean about the authors’ intent from other sources. Other originalists do care what the Framers actually intended when they drafted the Constitution.4
The success of originalism can be traced to an ingenious movement launched by judicial radicals in the 1980s, who wanted to build a counterhegemonic movement to fight prevailing liberal interpretations of constitutional jurisprudence as embodied by the many decisions of the Warren Court, including Roe v. Wade. Recognizing that conservative political victories since 1968 had not been sufficient to transform the courts, conservative legal scholars, donors, and activists built a movement to compete with liberals on the level of law schools, professional networking, and judicial appointments. As Johns Hopkins University political scientist Steve Teles notes, what they realized was that “ideas need networks through which they can be shared and nurtured, organizations to connect them to problems and to diffuse them to political actors, and patrons to provide resources for these supporting conditions.”5 They built these networks by pursuing an “indirect approach”6 that involved the creation of the hard-right Federalist Society, a group that started out as a conference at the University of Chicago but has morphed into a lavishly funded group of originalists from which nearly all Republican judicial appointments since George W. Bush have been drawn. By contesting liberal legal theories in “the professions and universities where many of the key resources for elite political change are rooted,” Federalist Society legal entrepreneurs were able to increase the visibility and hence the legitimacy of their ideas.7 What was once shocking and unthinkable—that contemporary problem-solving should be totally subsumed to the literal interpretation of the Constitution—gradually became mainstream conservative judicial philosophy when members of the Federalist Society graduated from law school and made their way into important positions of power in the academy, the legal world, and the federal and state judiciaries.
The Federalist Society and its allies did indeed succeed in building a formidable philosophical movement, linked to conservative activist networks, designed to execute a slow-motion takeover of the federal judiciary. That project came to fruition last year when President Trump replaced the retiring Anthony Kennedy with hardliner Brett Kavanaugh, giving conservatives their first-ever originalist majority and the opportunity to realize their dreams of rolling back the administrative state and returning America to an imagined pre–New Deal utopia. At heart, “originalism” as a doctrine is used as a convenient smokescreen to pursue a highly conservative interpretation of the Constitution. Perhaps the most egregious example is the Second Amendment, which has been interpreted by the Roberts Court to mean an unlimited right for private citizens to carry arms. This interpretation makes no sense when looking at the literal words of the text, which contain no such provision, nor by the intent of the Framers, who explicitly rejected an individual-rights model of firearms, which was available to them in certain state constitutions, including Pennsylvania’s.8 By creating a new right (an individual right to bear arms) that is plainly not supported by the text of the Constitution or the debates that surrounded the issue at the time, originalists engaged in the very behavior—judicial activism—that they claim to abhor, by overturning the clear will of the public as expressed through state and municipal legislation. When, for instance, the Roberts Court invalidated Washington, D.C.’s prohibition on firearms, the justices were engaging in the very “legislating from the bench” that they so objected to during the Warren Court.
To make matters worse, originalists are often unwilling to head down the staircase and into the basement where their own doctrine leads them. For instance, the Framers clearly did not intend for their descendants to have the right to walk into the town square carrying their own personal semiautomatic machine guns capable of gunning down an entire British regiment in three minutes. They surely did not intend for their free speech protections to be used as justification for hollow-hearted billionaires to dump millions of dollars into unwatchable campaign attack ads designed by the five worst human beings in every graduating class. But according to the acolytes of this particular school of the jurisprudence, the Constitution is, in the words of Antonin Scalia, “not a living document. It’s dead, dead, dead.”9 Nothing matters other than the narrow meaning of the document’s words, even if it means saddling the United States with a series of medieval problems that other societies have easily dispensed with.
Strict adherence to the literal text of the Constitution causes contemporary America all manner of needless problems and crises, from the depressing regularity of mass shootings to the unavailability of abortion for so many American women, who have seen the Court gut the spirit of Roe v. Wade over time. But the Constitution also created a total mess of a political system. If that mess was equally problematic for Republicans and Democrats, you would probably not be holding this book in your hands. But almost all of the design flaws in U.S. politics today empower Republicans at the expense of Democrats. The most egregious of these affronts to the spirit of democratic rule is the structure of the United States Senate, surely the most malapportioned legislative body on the face of Earth. Home at any given time to dozens of semi-fossilized windbags yammering on about the sacrosanct nature of inane procedures like the filibuster and “senatorial courtesy,” the Senate gives each state two and only two Senators. This is how you end up having to shake down even the most sparsely populated of American states for two human beings capable of performing the kind of political work necessary to keep a modern country of 320 million people functioning properly. As in an extremely deep fantasy baseball league, you sometimes need to reach very far for talent, which is the only possible explanation for how someone like Republican Senator Mike Rounds of South Dakota has a job at the highest levels of government in the most powerful country in the history of the planet. Most Americans wouldn’t be able to pick this guy out of a lineup of two people, with good reason.
However, we’ve got bigger issues than the elevation of nondescript nobodies from nowheresville to the highest offices in the land. The graver problem is that the way the American experiment unfolded over the last two hundred and fifty years created a series of states with tiny populations that have the same right to representation in the Senate—and thus effective veto power over the public policy direction of the country—as the 38 million citizens of California. You can’t lay too much blame at the feet of the Framers. At the time California was the property of the Spanish Empire. The small states at the Constitutional Convention—Delaware and Rhode Island are the real villains in this story—refused to commit to the new union unless the larger states agreed to give them equal representation in perpetuity. As the eminent political scientist Robert Dahl argued in How Democratic Is the American Constitution? “The solution of equal representation was not, then, a product of constitutional theory, high principle, or grand design. It was nothing more than a practical outcome of a hard bargain that its opponents finally agreed to in order to achieve a constitution.”10
This completely absurd distortion of democratic principles is often comically rationalized by constitutional pedants as part of some well-thought-out scheme to insure the safety and balance of our democratic experiment. But this is nonsense. The Senate’s structure was the result of a lousy compromise. There is no other legislative body on the face of Earth in possession of both the Senate’s sweeping powers over American public policy as well as its comical lack of democratic balance. The largest population imbalances between the states in 1787 are tiny in comparison to today’s numbers.
The problem is getting worse, rather than better, over time, as large states are growing more quickly than the small states. As political scientist Jeffrey Ladewig and attorney Mathew Jasinski argued in 2003, “while the populations of small states have grown, their relative populations have decreased, which has increased the number of relatively small states.”11 In other words, the degree to which the average Californian or Texan is disadvantaged in the Senate relative to the average Rhode Islander or North Dakotan has grown over time. Residents of the larger states may or may not quite understand how the current electoral system deprives them of influence. Most of the largest U.S. states—chiefly California, New York, Illinois, and Texas—haven’t been competitive at the presidential level in a generation, meaning in addition to having almost no power in the U.S. Senate, voters in these states are also completely ignored in presidential election years thanks to another monstrosity bequeathed to us by the Framers, the Electoral College. This profoundly undemocratic institution has gifted the presidency to a Republican runner-up twice this century and remains one of the hardest things about American politics to explain to outsiders who naturally expect that the winner of a national election for a single office to be the person with the most votes. As Dahl, one of the Constitution’s most insightful critics, argued about the Electoral College, “Probably nothing the Framers did illustrates more sharply their inability to foresee the shape that politics would assume in a democratic republic.”12
The Constitution is also obscenely difficult to amend. The procedures that the Constitution’s architects put into place to alter our country’s charter are the legal equivalent of an advancing army blowing up a bridge behind it. Changing the Constitution requires a two-thirds majority in both chambers of Congress, something that now generally happens only to name monuments and declare uncontroversial national holidays. If that were the only bar to clear, it would still be pretty high, but surmountable. But in addition to the supermajorities in Congress, the Constitution also demands that three-fourths of state legislatures also ratify the amendment. (Curiously, there is no role for the president.) The Constitution has only been amended twenty-seven times in its two hundred and thirty years of existence, and the pace of change has slowed dramatically in modern times. The Constitution has not been amended at all since 1992, when a long-stalled amendment related to congressional salary increases was finally ratified, and it has not been changed at the behest of modern Americans since 1971, when the Twenty-sixth Amendment lowered the voting age from twenty-one to eighteen, partly due to outrage that young people were being sent to fight and die in Vietnam yet could not register their approval or disapproval of national policy.
One way of thinking about how polarization has immobilized the Constitution is that the amendment to change the voting age would never be ratified today, since younger voters now lean so heavily Democratic that Republicans would dismiss such a massive extension of voting rights out of hand. Eighteen- to twenty-four-year-olds voted for Hillary Clinton over Donald Trump by a yawning twenty-two-point margin, and you can rest assured that no Republican in Congress or in state legislatures would agree to any change to our founding document that privileges Democrats, even if it is the right thing to do. This is why the progressive dream of amending the Constitution to overturn the Citizens United Supreme Court decision is so farcical—unless Democrats magically find themselves in control of three-quarters of our state governments as well as congressional supermajorities, such an amendment is dead on arrival. Even something as sensible as amending the Constitution to abolish the Electoral College has been and will continue to be dismissed by Republicans simply because they are the beneficiary of this inequity. The only way we would reach a national consensus on the Electoral College would be if a Democrat won the presidency despite losing the popular vote, something that very nearly happened in 2004, when John Kerry came within one hundred thousand votes of flipping Ohio and thus capturing the presidency despite losing to George W. Bush by more than three million votes nationwide.
The near-impossibility of amending the Constitution means Americans are stuck with a series of electoral procedures and national policies that they actively despise. For most of this century, a wide majority of Americans has supported amending the U.S. Constitution to abolish the Electoral College and to choose the winner of presidential elections according to the crazy principle of who wins the most votes.13 Between 2012 and 2016 that majority narrowed, and in the aftermath of the 2016 election, 47 percent of Americans supported the Electoral College as is. But it’s still underwater. The Republican appointees of George W. Bush and Donald Trump have helped preserve interpretations of the Constitution that are deeply unpopular. For instance, a twenty-one-point majority of Americans supports stricter laws on guns,14 yet the country is held hostage to its obsolete Second Amendment and the judicial zealots whose interpretation of the Framers’ words is more or less settled constitutional law, whereas a dedicated and loud minority of gun fanatics opposes all laws restricting what kind of guns Americans can own and even holds up research into how we might be mass murdered by AR-15–wielding misanthropes somewhat less often.15 One poll suggested that the Equal Rights Amendment has the support of 94 percent of Americans,16 yet is going nowhere anytime soon thanks to implacable opposition from conservatives. Antonin Scalia, the chief originalist on the Supreme Court until his sudden death in February 2016, spoke for the conservative position on the ERA when he argued that “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t.”17 A significant majority of Americans expresses satisfaction with America’s pioneering system of public education, yet students and families watch helplessly as market fundamentalists perform a slow-moving, hostile takeover of the system, while the perfectly reasonable option of writing equal education funding into the Constitution is just off the table. And the structure of the Senate is doubly impossible to change: The Constitution plainly states that “no state, without its consent, shall be deprived of its equal suffrage in the Senate.” The small states will obviously never grant that consent, which would diminish their power. Reapportioning the Senate is a nonstarter.
The U.S. Constitution also features, destructively, the most frequent legislative election schedule in the entire world by putting the entire 435-member House of Representatives up for election every two years. Two years probably seemed like a really long time in 1787—it was certainly much longer than most newborns could expect to live prior to the invention of antibiotics. Back then it made some sense to hold such frequent elections given the rate at which congressmen were going pecs up—in the first ten years of the new republic, twelve congressmen died in office (though not necessarily in an office).
The Framers certainly could not have foreseen that our national elections would turn into a multibillion dollar, fifty-ring circus that consumes an absurd amount of the time available to our national representatives. House minority leader Nancy Pelosi told NPR in 2012 that she attends about four hundred(!) fundraisers every single year.18 Former House member Walt Minnick (D-ID) said that he took just five days off from fundraising after winning his seat in the 2008 elections. In 2013, the Huffington Post obtained a PowerPoint presentation prepared by the Democratic Congressional Campaign Committee recommending that new members spend four hours a day making fundraising calls.19 Rep. Rick Nolan (D-MN) claims that both parties encourage their members to spend an astonishing thirty hours a week fundraising, at call centers set up on the Hill for maximum convenience.20 If elections were less frequent—say, every four years rather than every two—it would somewhat relieve members of Congress of an obligation that (a) they all detest and (b) prevents them from doing the people’s business with their working hours. It seems implausible that the American people, who in general are not especially diligent or enthusiastic about voting in the first place, would mind being consulted less often about their House representatives. But, alas, there it is in plain, incontestable language in Article 1, Section 2: “The House of Representatives shall be composed of Members chosen every second Year by the People of the several States.” So here we are, two hundred and thirty years later, scrambling for elections what seems like every five minutes because of the whims of our long-dead ancestors.
Some of the Constitution’s flaws were written into the text but have not held up very well with the passage of time, like lifetime tenure in the federal court system. Others, however, are crimes of omission, like the document’s silence about voting. As Garrett Epps argued, “The right to vote of citizens of the United States remains a kind of stepchild in the family of American rights, perhaps because it is not listed in the Bill of Rights, and perhaps because Americans still retain the Framers’ ambivalence about democracy.”21 There are perfectly understandable reasons why the Constitution offers relatively slim guidance about voting. At the time of the founding, there was not a single functional democracy as we would understand the term today in the entire world, voting by secret ballot existed nowhere, and the authors distrusted ordinary citizens to make wise decisions anyway. The Constitution’s architects, of course, infamously left voting rights to the states, most of which restricted the franchise to white, male property owners. And they would have regarded the subsequent expansions of voting rights in the United States with considerable horror. The Constitution also contains no guidance about how to conduct elections to the House of Representatives. In fact, until the mid-nineteenth century, many congressional districts in the United States had multiple winners, a fact that has been lost to history. The entire architecture of American elections, from the size of the districts to the complex system of party primaries, was created long after the Constitution was written and would be shockingly easy to change.
The most glaring and problematic omission from the Constitution is its silence about how to resolve disagreements between the executive and legislative branches of government. The direct election of a president, separate from the legislature, is one of the key distinctions between our presidential system of government and parliamentary democracies. In parliamentary systems, the prime minister is an elected member of parliament and nearly always the leader of the party with the most seats. As the political scientist Juan Linz once put it, parliament is “the only democratically legitimate institution.”22 You can’t have “divided government” in a place like the United Kingdom. You can have an election where no party gets a majority and must govern in conjunction with other groups. But you cannot have a situation where one party is given the right to draft the laws and another party has the right to sign and carry them out. The fact that the clash between the executive and legislative branches has never resulted in the breakdown of democracy in the United States23 is more luck than design. In Linz’s words, “The American system works or has worked in spite of, rather than because of, the presidential constitution of the United States.”24
In “The Perils of Presidentialism,” one of the most famous stand-alone articles ever written in the field of political science, Linz says that the creation of two competing centers of power and legitimacy is one of the most combustible features of presidential democracies and one of the main reasons that so many countries that use versions of American democracy have collapsed repeatedly into authoritarianism. Holding legislative elections in the middle of the executive’s term only makes matters worse—voters have nearly always empowered the opposition party in those elections, but because the legal order leaves the president in place, even if he is deeply unpopular, it just exacerbates the problem. In that sense, American politics probably would have been more functional had Republicans toppled President Obama in 2010 or 2014 (or had Democrats been able to dislodge George W. Bush from power in 2006). Instead, voters were delivered the worst of both worlds because both Obama and his congressional adversaries believed they had been granted a mandate to pursue their irreconcilable visions of public policy.
To be sure, this arrangement has its defenders. “Checks and balances” seems to be one of the few governance concepts successfully taught to high school students in this country. Political scientist David Mayhew has long argued that divided government actually works pretty well. “Divided party control is not a problem,” he claimed in a 2009 article25 that cited the productivity of the 110th Congress, which was controlled by Democrats but passed a significant amount of legislation signed by Republican President George W. Bush. Mayhew made this argument, at book length, about the entire postwar period from 1946 to 2002. Divided government may increase dysfunction, he claimed, but “important laws have materialized at a rate largely unrelated to conditions of party control.”26 However, Mayhew’s investigation, and his conclusions, are drawn from a particularly unusual period of party comity in U.S. national history, in which there was substantially more overlap in ideology than there was, for example, when pro-slavery Democrats controlled Congress in the early 1850s and the last Whig president, Millard Fillmore, ground policymaking to a halt. The Thirty-second Congress (1851–1853) was one of the least productive in the history of the Republic, passing only seventy-four bills that were ultimately signed by the president.27 We all know where that led. One could argue that the issues facing us today are similarly grave, and the differences between parties just as unbridgeable.
Unfortunately, directly addressing the Constitution’s shortfalls in the current political climate is not feasible. A constitutional convention can technically be called when two-thirds of the states express their desire for one, but such a path poses incredible risks for everyone involved. Although there is actually a little-known and little-talked-about movement gaining steam to do exactly that—mostly from red-state legislatures wanting to amend the Constitution to pass a balanced budget amendment, and from progressives disillusioned with the Citizens United decision—once a convention is called, then the entire constitutional order could theoretically be rewritten.28 And one thing is for sure: if that convention were to happen today, we would be in for an even more conservative constitutional regime than the one we already have, because conservatives are in control of so many state legislatures.
This is why a new constitutional convention has also become a kind of pet project of the extreme right, with notable proponents like the American Legislative Exchange Council (ALEC), Texas Governor Greg Abbott, and Florida U.S. Senator Marco Rubio. If Republican extremists were somehow to control the balance of power in such proceedings, the results would be extraordinarily ugly, with a new legal order that diminishes the ability of the federal government to spend money addressing national problems. Indeed, were such a convention actually on the horizon, it could raise the stakes of national politics to unbearable and possibly disastrous and violent levels. The Constitution is also sufficiently vague on the subject of this convention that it would inspire all kinds of problematic jockeying and disagreement—how are delegates to that convention elected? Does Congress need to ratify any amendments made? How would the public react to their representatives calling a convention even though no one has campaigned on it or even told the voters that this was coming?
All of this means that if progressive leaders are going to craft workarounds to some of the problems of contemporary American politics, they are going to have to do so within the framework of the U.S. Constitution rather than outside of it.
To do this, Democrats and their allies are going to have to hold the line for the remainder of Trump’s term in office. Remaining unified as a party to obstruct and thwart as much of the GOP agenda as possible will help make the GOP brand even more toxic than it already is. And if and when Democrats recapture state and national power in 2018 and 2020, they must design clever workarounds to the Constitution’s flaws, and rectify the institutional power imbalance that currently favors the GOP and promises to do so indefinitely absent a massive and sudden shift in the political, economic, and social values of rural Americans. Activists and partisans must, for now, give up the dream of amending the U.S. Constitution. Instead, they should urge their leaders to use the powers that they actually have, to increase the number of states in the union, change the way the House is elected and increase its size, add additional justices to the Supreme Court, and enact sweeping changes in how we vote and who is allowed to do so. These changes, none of which require constitutional amendments, should allow Democrats and their allies, including newly empowered third and fourth parties that will caucus with Democrats, to finally break the gridlock that has characterized national policymaking since the 1990s and to transform the United States into a functional modern social democracy that, for the very first time in history, successfully delivers a bare minimum of security, opportunity, and genuine equality to all of its citizens. These changes will not eliminate each of the Constitution’s premodern features or resolve all of the tensions that the document created, but they will bring the United States much closer to the evolving practices of other democratic societies, and most importantly, they will overcome the Constitution’s systematic bias against the contemporary Democratic coalition.
First, though, they need to get themselves back into power.
Here’s how.
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