Numbers Tell the Story
As state populations grow, our antiquated Constitution renders American society increasingly unequal, explains Daniel Lazare
Thomas Jefferson is famous for many things, but one of them is a statement he made about the dangers of constitutional stagnation. It’s from a letter he wrote to a fellow Virginian named Samuel Kercheval in 1816:
...laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.
Jefferson had his eloquent moments, and this is certainly one of them. Still, the image of a too-tight coat is not quite right. The problem is that an unchanging constitution doesn’t just squeeze, but binds, bends, and distorts. It forces society to respond in various ways, remaining passive one moment, exploding in another, and adopting clever new coping mechanisms in a third.
Such struggles have characterized US history from the start. Let’s begin with the minority dictatorship imposed by the constitutional amending clause in Article V. As most people know, the article says that Americans must win the approval of two-thirds of each house of Congress plus three-fourths in order to change so much as a comma. In 1790, the three-fourths rule meant that four out of 13 states representing as little as nine percent of the population could block any constitutional reform sought by the other 91. In 1800, following the admission of Vermont, Kentucky, and Tennessee, it meant that four out of 15 states representing just 10.5 percent of the population could do likewise. Here are the other numbers for the antebellum period:
The numbers tell us two things. One is that the minimum portion of the population with an effective constitutional veto bounced around a fair amount as population shifted to the west. The other is that the antebellum period ended up in roughly the same state of constitutional constriction as it began. As a result, the constitutional structure was unable to make room for a solution to the slavery question short of civil war. This is why the structure exploded in 1860-61. Unable to act constitutionally, Americans had no choice but to act extra-constitutionally in order to maintain national unity.
Subsequent figures tell us something else: that once the war was over, the big squeeze could only intensify. By 1870, the portion of the country with an effective constitutional veto was down to just 5.8 percent. By 1890, it was down to 4.4. The result was political stagnation extending well into the Great Depression of the 1930s. To be sure, the ice did break on one or two occasions, most notably in 1865-68 when Radical Republicans succeeded in ramming through three major amendments: the 13th abolishing slavery, the 14th extending the Bill of Rights to the states, and the 15th establishing a national right to vote irrespective of “race, color, or previous condition of servitude.” But then the system froze back over once the Supreme Court began gutting the three Reconstruction amendments and re-imposing a state of semi-servitude.
So deep was the paralysis that another amendment would not slip through for nearly half a century. And even then, the results were in some ways even worse. The 16th Amendment, ratified in 1913, was a purely technical adjustment that permitted the federal government to levy an income tax, something it had done during the Civil War but without proper constitutional authorization (or so it was now said). The effect was to tighten the constitutional vise even more. The 17th Amendment, ratified a year later, provided for the popular election of US senators, a typically empty Progressive-Era gesture that put a pseudo-democratic gloss on a chamber that was growing more unequal by the decade. The 18th Amendment, ratified in 1919, imposed an unprecedented dictatorship in the form of Prohibition, with devastating consequences for society in general.
Repression and stagnation intensified the more change-averse the Constitution grew. The upshot during FDR’s first term was a genuine national emergency as an arch-conservative Supreme Court vetoed one New Deal measure after another. But just when it seemed that society couldn’t take it anymore, something unexpected occurred, a constitutional readjustment that sent the structure veering off in a new direction. This was the “switch in time that saves nine,” to quote the humorist Cal Tinney, an abrupt change in judicial outlook that followed on the heels of FDR’s court-packing scheme in 1937.
The about-face was the product of many factors – the crash of 1937, class conflict, the approach of war, and the need for national mobilization after 1941. But the build-up in constitutional pressure was also a key ingredient. Instead of explosion or stagnation, the effect this time around was something akin to “isomerization,” a chemical process in which old elements are rearranged to form a new substance without any change in molecular content. It was still the same old Constitution in other words. But where the text once allowed for segregation, racial terror, and mass denial of the right to vote, the same words as of the 1950s now stood for something else, i.e. integration and civil rights.
Isomerization also led to a new relationship between the Constitution and the people at large. Instead of suffering under a constitutional dictatorship, “we the people” were now seen as living under a charter of liberty guaranteeing equal rights and equal opportunity for all. Reinventing themselves as arch-Tories, liberals celebrated a document they had formerly despised. The Supreme Court was as remote as ever. But liberals assured the people that it would continue steering the country in a progressive direction regardless. They were right straight through to the court’s epic abortion ruling in Roe v. Wade in 1973. But then they were wrong once a ferocious new conservatism began gathering force later in the decade.
The conservative wave that began with Ronald Reagan represented yet another isomeric phase change. With the theoretical minimum capable of wielding a constitutional veto continuing to hover between 4.1 and 4.5 percent, structural immobilization continued in full force. But deepening paralysis on one level caused conflict to erupt on another. This was the battle for control of an all-important Supreme Court, which grew white hot along with the academic struggle over various schools of constitutional interpretation – originalism, strict construction, prudentialism, etc. Liberals won the first round when the Senate voted 58 to 42 to reject the Robert Bork nomination in 1987. But constitutional immobilism insured that they would lose the war, which they in fact did.
But now let’s turn to another constitutional index that is no less significant. This is the minimum portion of the population needed to elect a senate majority. Prior to the Civil War, the figure stood at around 24 to 31 percent, meaning that a quarter or a third or so of the population was all that was needed to gain control of the upper chamber.
But then that index began drifting downward too – to 20 percent in 1870, to 18 percent in 1900, and to 16.9 percent in 2020. The Senate thus wound up more unequal in one important respect than at any point in history. Adding insult to injury was the dramatic growth of the filibuster, which soon meant that even minor legislation would require 60 votes to pass. With 41 senators capable of blocking any bill, as little as 10.7 percent of the population had gained a legislative veto over the other 89.3.
This was unprecedented. Yet with states continuing to grow more unequal according to population projections, the imbalance can only grow. Giants like California and New York will find themselves at the mercy of a shrinking rural minority as Wyomingites, Montanans, and the Dakotans gain ever greater clout. For instance:
With Wyoming voters already enjoying nearly four times as much clout as Californians in presidential elections – 3.74 times as much to be precise – the small-state advantage will undoubtedly increase as state population differentials swell. This means more stolen elections in which the Electoral College trumps the popular vote and more political campaigning in a handful of swing states whose electoral votes will prove ever more crucial.
Senate inequality will continue to intensify. Equal state representation currently means that the 54 percent of the population that lives in ten mega-states will be outvoted four to one by the minority in the other 40. But by 2040, it means that a 53-percent majority that by that point is living in just nine states will be outvoted even more egregiously. Considering that the top ten are host to more than 80 percent of racial minorities, the system will grow even more racially imbalanced.
As for the Supreme Court, it’s already minoritarian in the extreme with five of the current nine justice nominated by minority presidents who had lost the popular vote (i.e. John Roberts and Samuel Alito by George W. Bush and Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett by Donald Trump) and four confirmed by senators representing a minority of the population (i.e. Gorsuch, Kavanaugh, Barrett, and Clarence Thomas). So while it’s hard to imagine the “Supremes” getting even worse, an increasingly unequal Senate and Electoral College will continue pushing them toward greater inequality as well. All that’s needed will be horse-hair wigs to complete the transition to the 18th century.
The effect on the House is less certain. Since 2010, Republicans have enjoyed as much as an 18-percent edge in terms of the number of votes needed to win each seat. But the Republican advantage disappeared in 2018-20 and actually turned negative in 2022, so its fate is unclear. As for the amending process, congressional gridlock all but assures that the Constitution will remain unchanged for decades to come. The ice age goes on.
This assumes that there are no more January 6-style insurrections or that Donald Trump will not permanently rig the vote if he wins a second term. But even if he doesn’t, constitutional paralysis can only drag society further and further down. Jefferson’s too-tight coat has already led to civil war and political stagnation, but now it is leading to even worse: outright authoritarianism. So which will it be – rightwing dictatorship or revolution led by the working class?