Love it when smart people draw outside the lines. -d
A modest proposal to save American democracy
A law journal just floated a wild idea to add 127 more states to the union. And it’s all constitutional.
American democracy is broken.
We have a president who lost the popular vote, a Senate where the “majority” represents about 15 million fewer people than the “minority,” and a Supreme Court where two justices were nominated by that president and confirmed by that unrepresentative Senate.
An unsigned note, entitled “Pack the Union: A Proposal to Admit New States for the Purpose of Amending the Constitution to Ensure Equal Representation” and published in the Harvard Law Review, offers an entirely constitutional way out of this dilemma: Add new states — a lot of new states — then use this bloc of states to rewrite the Constitution so that the United States has an election system “where every vote counts equally.”
To create a system where every vote counts equally, the Constitution must be amended. To do this, Congress should pass legislation reducing the size of Washington, D.C., to an area encompassing only a few core federal buildings and then admit the rest of the District’s 127 neighborhoods as states. These states — which could be added with a simple congressional majority — would add enough votes in Congress to ratify four amendments: (1) a transfer of the Senate’s power to a body that represents citizens equally; (2) an expansion of the House so that all citizens are represented in equal-sized districts; (3) a replacement of the Electoral College with a popular vote; and (4) a modification of the Constitution’s amendment process that would ensure future amendments are ratified by states representing most Americans.
Under the Constitution, new states may be admitted by an ordinary act of Congress with a simple majority vote. The Constitution does, however, prevent new states from being carved out of an existing state unless the legislature of that state consents. Chopping up the District of Columbia gets around this problem because Washington, DC, is not a state.
One can quarrel with the details of the Harvard proposal. Ratifying a constitutional amendment, for example, requires the consent of three-fourths of the states. So it makes more sense to divide the District of Columbia into 150 states, rather than 127 states, to ensure that pro-democracy amendments will actually be ratified. (Under the Harvard proposal, there would be 177 states, so 133 of them would have to agree to a new amendment. That means that six existing states would need to play along.)
Indeed, there is a long history of partisans selectively admitting new states in order to pack the Senate with their own fellow partisans. In 1864, for example, Republicans admitted the state of Nevada — then a desert wasteland with only several thousand residents — giving themselves two extra Senate seats in the process.
Similarly, the reason why there are two Dakotas is because Republicans celebrated their victory in the 1888 election by dividing the Republican Dakota Territory up into two states, thereby giving themselves four senators instead of only two.
So let’s be frank. The Harvard note’s proposal is ridiculous, but it is no more ridiculous than a system where the nearly 40 million people in California have no more Senate representation than the 578,759 people in Wyoming. As the Harvard note says of its own pitch, “radical as this proposal may sound, it is no more radical than a nominally democratic system of government that gives citizens widely disproportionate voting power depending on where they live.”
Pack the Union: A Proposal to Admit New States for the Purpose of Amending the Constitution to Ensure Equal Representation
The problem of unequal representation is rooted in provisions of the Constitution that treat citizens living in different places differently. These provisions date to the Constitutional Convention, but in many respects, the present state of affairs does not reflect the Framers’ intentions. Developments since ratification call into question the inequality of the status quo, which has a substantial effect on public policy and is likely to get worse unless it is addressed.
But even when democracy is messy, a society’s commitment to the endeavor rests on the belief that giving power to the people is appropriate and fair. Recent events have highlighted some of the ways in which federal elections in the United States are profoundly undemocratic and, thus, profoundly unfair.
The Electoral College — when it contravenes the popular vote — is an obvious example of this unfairness. But it is just one of the mathematically undemocratic features in the Constitution. Equal representation of states in the Senate, for example, gives citizens of low-population states undue influence in Congress. Conversely, American citizens residing in U.S. territories have no meaningful representation in Congress or the Electoral College.
If we truly hold to be self-evident that all are created equal, The Declaration of Independence para. 2 (U.S. 1776), then it is time to amend the Constitution to ensure that all votes are treated equally. Just as it was unfair to exclude women and minorities from the franchise, so too is it unfair to weight votes differently. The 600,000 residents of Wyoming and the 40,000,000 residents of California, should not be represented by the same number of senators. Nor should some citizens get to vote for President, while others do not. Any rationalization of the status quo must adopt the famous Orwellian farce: “All animals are equal but some animals are more equal than others.” George Orwell, Animal Farm 112 (1946).