Improving the Constitution

Robert Dahl, Professor of Political Science, Yale University
April 21, 2006


REMARKS ON IMPROVING THE CONSTITUTION (1)

(For the email conversation on Improving the Constitution. Note: I shall be traveling abroad during this period and therefore unable to participate in any discussion of my remarks)

In reflecting on the question of improving the American Constitution, I think we should consider at least three relevant factors.

First, the iconic status of the Constitution greatly inhibits many Americans (indeed, probably most) from engaging in a rational and open-minded search for alternatives -- some theoretical, perhaps, but many others drawn from the experiences of other solidly democratic countries.

Second, we must always keep in mind the profound concern among the Framers that if majorities were given the power to govern, they would surely impair property rights, including the alleged right to treat some human beings as private property. As Gary B. Nash and Sean Wilentz both show in their impressive recent works, in the Northern states urban merchants and bankers and larger farmers in the countryside feared the threat to their property and privileges that would arise if urban artisans and laborers and small farmers and farm laborers gained political power. A similar fear in the South was further enhanced among slave-owning landholders by the possibilities of uprisings among their labor force. To them, majority rule meant not only mob rule but the prospect that a popular majority in the North might seek to abolish slavery. (2)

These fears gave most of the Framers a strong incentive for designing a constitution that would erect solid barriers against majority rule. Outstanding in his influence, knowledge, and the respect of his peers was James Madison, who enshrined the anti-majoritarian doctrine in his famous contributions to The Federalist in which he denounced factions as the bane of republics, and offered as a solution enlarging the territory of a "republic". By multiplying the number of factions, he argued, a larger area would help to prevent any single faction from gaining power. Ironically, as Madison gained actual experience in office, he quickly realized that with one faction already in power, the Federalists, he and Jefferson would need to organize their supporters ­ a popular majority, as they correctly believed -- into a political party As the name and etymology of the term "party" suggest, their Republican party was a part, not the whole -- a partisan entity that would be necessary if their program were to gain over that of the Federalists. So much for the dangers of faction! "Your interests are factional; mine are organized in a political party dedicated to the public good!"

It is worth noting that as Madison acquired experience in national office, his occasional writings, letters, and musings reveal that he became much more favorable to majorities and majority rule. His later thoughts are, however, largely unknown or ignored, not least by those who employ his early writings in The Federalist to gain greater legitimacy for their own anti-majoritarian views.

A third point: in reflecting on the American political system we need to view it as consisting of two interlocking sets of institutions: those more or less prescribed by the formal written Constitution and reinforced by Supreme Court decisions, and important political institutions or practices that are not required by the written constitution but have become what we might think of as embedded in our informal or unwritten American constitution. Of these, two are critically important and closely inter-related: the division of states into electoral districts for choosing members of the House, and the winner-take-all electoral system by which the largest number of votes, and not necessarily a majority of 50% plus one, is sufficient for winning office. Iıll return to these in a moment, but let me suggest here that although some desirable changes in the formal constitution may be virtually impossible because of minority vetoes, changes in the informal constitution might be more attainable.

UNDEMOCRATIC ASPECTS OF THE FORMAL CONSTITUTION

Three undemocratic political institutions are embedded in the formal Constitution, and for reasons I shall explain, will be very difficult and perhaps politically impossible to change. A fourth, our electoral system, is not constitutionally required and might therefore be more amenable to change

EQUAL REPRESENTATION IN THE SENATE. The most extreme undemocratic political institution explicitly prescribed by the Constitution is specified in Article I: "The Senate of the United States shall be composed of two Senators from each State , chosen . . . for six years; and each Senator shall have one vote."(3) The result is a huge distortion in political equality. In 2000, the population of California was almost 70 times that of its neighbor Wyoming. In effect, then, the weight of a Wyoming voter in Senatorial elections, and presumably in the voterıs influence on decisions in the Senate, is 70 times that of a voter just across the state boundary in California. Although upper houses in all federal democratic systems provide some deviation from strict political equality, the distortion in United States is among the most extreme.

The high degree of political inequality among citizens created by the constitutional prescription for an equal number of Senators from every state has further constitutional ramifications.

THE ELECTORAL COLLEGE. The requirement in Article II that the number of electors in the electoral college must be equal to "the whole number of Senators and Representatives to which the State may be entitled in Congress" leads directly to an inequality in the weight of votes in the Electoral College. Here, the vote of a citizen of Wyoming is worth almost four times the vote of a citizen living next door in California. And because of huge variations in state populations, it is theoretically possible that the Senate could pass legislation with 51 votes, a majority of the Senate, from Senators representing 26 states containing only 26% of the population of the United States. To be sure, such extreme cases would probably not make it through the House, but the influence of states with small populations would probably show up in negotiations between the two chambers.

Setting aside the enormous violation of the fundamental philosophical principle of political equality among citizens, does this violation of political equality really matter in practice? It is often said that people in the smaller states need equal representation in the Senate in order to protect their interests, as a minority, from infringements by a majority. But what, exactly, are these interests? The basic political rights of citizens in all states, small and large, are equally protected by the Constitution. What fundamental interests need protection in the small states from invasion by majorities in the rest of the country? I find none that withstand scrutiny. The findings presented in a recent work show, for example, that Wyomingıs annual share of federal expenditures has run about a third more per capita than Californiaıs share.(4) Does this represent the protection of a fundamental interest?

THE PRESIDENT

SELECTION. For the Founders, designing a Chief Executive posed a nearly insoluble problem. Had they assembled after the parliamentary system was firmly established in Britain following the election of 1832, they might well have created a prime minister responsible to parliament ­ as, indeed, most European countries did when democratizing forces began to prevail. The European countries also emulated Britain in separating the position of chief executive, the prime minister, from that of head of state, a monarch or president without power over government policies. When the Framers met in 1787, however, parliamentary government, as it was later understood, did not yet exist. Although many of the Framers greatly admired and sought to adapt the principle features of the British system to the requirements of a republican government, the system they knew was still that of eighteenth century Britain.

Lacking a relevant model, the Framers struggled to the last days of the Convention in their efforts to find a satisfactory and acceptable solution to the problem of designing a chief executive for a republic government. How should the Chief Executive be chosen? How could he be removed? What powers should be entrusted to the President? Facing an urgent need to bring the Convention to a close, when a committee appointed to solve the problem reported back, the members quickly adopted the committeeıs proposal, adjourned, and left for home.

Their solution was, of course, the Electoral College: "a number of Electors equal to the whole number of Senators and representatives to which each State may be entitled to in Congress" selected "in such manner as the Legislatures thereof may direct." (Article II, Section I). Though considerably diminished in its effects, here again the equal representation of States in the Senate results in political inequality of citizens in the Electoral College, and thus in the election of the President.

POWERS. Although the outcome of the Framerıs long puzzlement over the issue of how the President was to be chosen resulted in a fairly detailed ­ if defective -- constitutional provision, , some of the powers granted the president in Article II are broad and vague.(5) Perhaps the most important are the otherwise undefined "executive power" vested with the President, and his authority as "commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States". Recent claims to authority by President Bush rest directly on this poorly defined grant.

ELECTION. The Framers were also stumped by the problem of how the chief executive was to be chosen, held accountable, and dismissed. Should the President be chosen by Congress? By popular election? By State legislatures? Or just how? Lacking a clear model, they oscillated. Although they voted several times for selection by Congress ­ which might have produced an American version of a parliamentary system ­ votes to reject that solution soon followed. Baffled, and with pressure mounting on the delegates to adjourn and return home, they turned the problem over to a committee, which retired for some days and reported back with the electoral college. When the election of 1800 revealed that the Framersı solution would allow for a tie vote to result in a deadlock in the Electoral College, they added a Twelfth Amendment that transfer the decision to the House of Representatives where "the votes shall be taken by states, the representation from each state having one vote". Here again, popular majorities could be disregarded.

ACCOUNTABILITY AND REMOVAL. Except for the possibility of impeachment, the Constitution has little to say about how the president can be held accountable. The main instruments of accountability are elections, Congressional committees and debate, and Congressional power over law making.

A distant and rarely used possibility is impeachment. Removal from office takes place in two stages. The House of Representatives has "the sole Power of Impeachment", after which the case moves to the Senate which "shall have the sole Power to try all impeachments . . . When the President of the United States is tried, the chief Justice shall preside. And no person shall be convicted without the Concurrence of two thirds of the Members present."

Although the House has twice voted to impeach a President ­ Andrew Johnson in 1868 and Richard Nixon in 1974 -- none has ever been convicted by the Senate. (Nixon avoided a possible conviction by resigning). For all practical purposess, once elected a president is secure in the office.

Although these mechanisms of control over a presidentıs policy-making powers can be highly effective in some areas, and under some circumstances, as I have already mentioned they are relatively weak in dealing with the presidentıs decisions on foreign and military policy ­ two areas with highly crucial consequences for the public, as we are presently witnessing with President Bushıs decision to invade Iraq.

FEDERAL ELECTIONS

The Constitution does not explicitly prescribe how federal elections are to be conducted. Article I reads:

"The times, places, and manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof, but the Congress may at any time by Law make or alter such regulations, except as to the place of chusing (sic) Senators."

However , the only method of elections with which the Founders had any knowledge from the experience of Britain, the American colonies, and the thirteen original States was to elect a candidate by voters who were resident in a district, and who gained a plurality ­ not necessarily a majority of the votes cast in the district. This system would come to be called elections with "single-member districts" where votes would be counted by a system called "winner-take-all" in America and "first-past-the-post" in Britain.

WINNER-TAKE-ALL

As these names suggest, in order to win a candidate needs to gain just one more vote than any opponent. Thus, in theory, a candidate in a district with three candidates might win with only one-third of the votes plus one; with four candidates, merely a quarter plus one. In practice, the winner typically gains more votes than this theoretical minimum, but fairly often the office goes to a candidate who has won less than a majority of votes. In one of every three presidential elections the highest elective office in the land has been occupied by a candidate who gained less than a majority of popular votes. In many of these, it is entirely reasonable to conclude that a substantial majority of voters who cast their ballots for third party candidates, if given a choice only between the top two, would have cast their votes for the candidate who had lost ­ turning the loser into the winner.

The United States, Canada, and Britain are among are the last outposts of plurality elections in single member districts. Most of the European democracies have replaced that antiquated system with some form of proportional representation. Although many Americans seem to believe that PR leads to governmental instability, it exists in some of the most stable, and, more recently, to New Zealand.

It is well past time, I believe, for Americans to begin some carefully thought out, controlled, and observed trials of alternative voting systems in municipalities and states, with the prospect of adopting a tested method for Congressional elections.

NONCOMPETITIVE ELECTIONS

Elections without serious competition are the hallmark of authoritarian regimes. Yet in the United States, where political competition is relatively unrestrained, elections of Representatives to Congress are notoriously uncompetitive. As a recent study points out, "competition in House elections has been declining for more than 50 years. . . and the reelection rate of House incumbents has increased from 87% between 1946 and 1950 to 94% between 1952 and 1980 to 97% between 1982 and 2000, and 99% in the 2002-2004 elections."(6)

In order to insure some degree of contact between a representative and her constituents, in a democratic association larger than a small town, representatives are ordinarily chosen from districts. Even in European countries with PR systems, some deputies, perhaps half, may be elected in smaller units. As a result, electoral districts provide a powerful temptation for carving out their boundaries for partisan ends ­ gerrymandering, as the practice has been known for two centuries in the United States. Although gerrymandering is often cited as a crucial factor in House elections, the authors quoted above conclude that it is not a significant factor. Instead, they attribute the extraordinary absence of turnover in the House to two other factors: increased partisan polarization and the advantages of incumbency. Population changes have resulted in a greater number of House districts with solid majorities of committed Democrats or Republicans. This factor in turn contributes to a second: incumbency. Holding office provides great advantages over a competitor, in public visibility, money raising, and others.(7)

CAN THE DEMOCRATIC DEFICIENCIES I HAVE JUST CITED BE CORRECTED?

BY CONSTITUTIONAL AMENDMENT? The Constitution has, of course, been amended ­ as recently as 1992 with the passage of the 27th Amendment. But we must be careful not to conclude that majorities, even substantial majorities, can easily change the Constitution. The first ten amendments ­ the Bill of Rights ­were enacted virtually as a part of the original Constitution, and the 11th and 12th were adopted soon thereafter to correct defects that had quickly become evident. The next three, dealing with issues of slavery and freedom, could not have survived the veto of the Southern states until after the Civil War. They were, in fact, adopted during Reconstruction, before White Supremacy was established after the election of 1876 and once again provided the Southern states with a veto over constitutional change. Others, like the popular election of Senators, had widespread support. Where that proved to be lacking in the case of the ill-fated 18th Prohibition Amendment, it was soon repealed.

Small minorities strategically located can, however, easily veto amendments. Thus a proposed constitutional amendment can be rejected in the Senate by a minority of Senators representing a very small minority of Americans. Article V of the Constitution provides two ways by which an amendment may be proposed: "whenever two thirds of both houses deem it necessary . . . or on the application of the Legislatures of two-thirds of the several States . . " Theoretically, then, an amendment could be blocked in the Senate by the votes 34 Senators from 17 states with less than 8% of the population of the United States. If it passed this hurdle in Congress, it could still fail if it were rejected in the legislatures of thirteen states inhabited by less than four percent of the U.S. population!

ELECTIONS TO THE HOUSE

If equal representation in the Senate clearly conflicts with the principle of political equality, the House presents a different problem: a drastic decline in the number of competitive elections for House seats. As the authors of a recent article point out, "competition in House elections has been declining for more than 50 years. " But in recent years, lack of competition has reached new heights. If we define safe or low risk seats as "those in which [the] share of major party votes for presidential candidates of [the] incumbentıs party was at least 10 percentage points greater than the national vote share", then among Republicans the percentage of safe seats rose from 23.2% in the period 1972-80 to nearly 49% in 2002-04; among Democrats, from 24.5% to just over 50%.(8) The causes are several. Although gerrymandering ­ drawing district lines to favor the candidates of a particular party‹is often cited, the authors of the most recent study find that it plays a modest roll compared with the effects of "partisan polarization", i. e., an increasing concentration of Republicans and Democrats in different districts, and in partisan voting. Incumbency provides a further advantage.(9)

The upshot is that effective two-party competition for House seats has almost vanished.

ALTERNATIVES TO WINNER TAKE ALL

A number of feasible alternatives to winner-take-all exist. Many of these have been tested by experience in the United States or in other stable democratic countries.

One common solution to the problem of a candidate winning office with less than a majority of votes is to hold a run-off election between the two top candidates. An even simpler possibility that does not require that a second election actually take place. is what has been called an "instant runoff". Under this system "voters rank up to three candidates. If no candidate wins a majority of first rankings, the candidate with the fewest first rankings is eliminated. Voters who ranked this candidate now have their vote counted for their second choice, and all ballots are recounted in an Œinstant runoff.ı If a candidate reaches a majority, she or he wins. If not the process repeats until a candidate gains a majority of votes. By using RCV, we elect majority winners in a single election." This system has been adopted in San Francisco, where it appears to have led to a significant increase in turnout, compared with a previous runoff election requiring voters to turn out a second time. (11)A recent change to an "instant runoff" (ranked choice voting, or RCV) for local elections in San Francisco offers an excellent example. Stephen Hill offers the following description:

"The shift from December runoffs to RCV has saved millions of taxpayer dollars, and voter participation was much higher and more inclusive. . . .The voters themselves, when polled, overwhelmingly preferred RCV to the old system.

"In RCV, voters rank up to three candidates. If no candidate wins a majority of first rankings, the candidate with the fewest first rankings is eliminated. Voters who ranked this candidate now have their vote counted for their second choice, and all ballots are recounted in an Œinstant runoffı. If a candidate reaches a majority, she or he wins. If not the process repeats until a candidate wins a majority of voters." (12)

Because an instant runoff does not require voters to return to the polls a second time, it significantly increases turnout.

THE ELECTORAL COLLEGE

Although changing the electoral college by constitutional amendment appears to be highly unlikely, might its anti-majoritarian features by altered by another route? Two law professors of American Constitutional law have offered an ingenious alternative. (13)

"Americans", they write, could pick the President by direct national election. . . without formally amending our Constitution. A small number of key states ­ eleven, to be precise ­ would suffice. . . Article II of the constitution says that each state shall appoint, in such manner as the Legislature thereof may direct its allotted share of presidential electors."

They point out that "the eleven most populous states together now have 271 electoral votes, one more than the 270 votes needed to win." If the state legislatures of these eleven states were to pass a law requiring its electors to vote for the candidate who wins the most popular votes, "the presidency would go to the candidate who won the national popular vote".

As I have already suggested, it is time for American citizens to follow the advice of Justice Brandeis of the Supreme Court nearly as century ago: let our multiplicity of towns, cities, and states serve us as sites for carefully thought out and controlled experiments in alternative electoral arrangements.

1. For a more extensive discussion, see my How Democratic Is the American Constitution? (New Haven: Yale University Press, 2003)

2. Gary B. Nash, The Unknown American Revolution, The Unruly Birth of Democracy and the Struggle to Create America (New York: Viking, 2005). Sean Wilentz. The Rise of American Democracy, Jefferson to Lincoln (New York: W.W. Norton and Co., 2005).

3.The 17th Amendment enacted in 1913 changed the words omitted above -- "by the Legislature" ­ to "elected by the people."

4. Francis I. Lee and Bruce I. Oppenheimer, Sizing Up the Senate: The Unequal Consequences of Equal Representation (Chicago: University of Chicago Press, 1999: 173-76).

5. Other powers include: The President " may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have the power to grant Reprieves and Pardons for Offences against the United states, except in cases of Impeachment." He has the power, to make treaties "with the advice and consent of the Senate to make Treaties, provided two thirds of the Senators present concur", and to appoint Ambassadors, Supreme Court justices, "and all other Officers of the United States" whose appointments are not otherwise vested by Congress in "inferior officers".

6. Alan I. Abramowitz,Brad Alexander, and Mathew Gunning, "Incumbency, Redistricting, and the Decline of Competition in U.S. House Elections", The Journal of Politics (February 2006, pp 77-88): 75.

8. Ibid. Table 1, p. 80.

9. Pp. 80ff.

11. See hill@newamerica.net a highly useful source for information about electoral systems.

12. Ibid., p. 2.

13. Akhil Reed Amar and Vikram David Amar, "How to Achieve Direct National Election of the President Without Amending the Constitution", Findlawıs Legal Commentary (wysiwyg://29/http://writ.news.findlaw.com/amar/20011128. htm.

 
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