The U.S. Constitution, as amended and evolved 231 years after it was written, can be blamed for a great deal of the dysfunction that currently plagues our system. But I’m not sure how fair it is to blame it all on the document or on the rich white guys who wrote it.
Kevin Baker, a long-time contributor to Harper’s Magazine, makes a bit of a Framer-blaming case in an essay in the current issue.
Here’s the link to his piece, titled “The Crisis of Our Constitution.”
You might guess, and you wouldn’t be wrong, that the first few aspects of our constitutional system (as evolved) that get bashed are those that brought us Trump and gerrymandering and the permanent malapportionment of power in the U.S. Senate and foolishness of the Electoral College system. Baker does a great job of lining them up and shooting them down.
I’ve spilled a lot of ink (and now pixels) on Constitution-bashing myself, but I try not to cross the line into blaming the Framers, who were limited not only by the unprecedented nature of their task, but also by the political realities they faced. I’m not sure Baker supplies enough of that sympathy.
The three-fifths compromise, for example (according to which slave states were given credit for 3/5 of a person for each slave when calculating how many seats the state would get in the House of Representatives), is hideous, as were several other provisions designed to protect the interests of slave owners.
But the Constitution stood no chance of being ratified in a country divided almost evenly between slave states and free states, if the white males who completely controlled the South thought the Constitution would end the abomination of legalized human bondage.
Also, many other suboptimal aspects of our system that are rooted in our Constitution were not even intended by the Framers. Take gerrymandering, which gets considerable attention from Baker, and which certainly deserves bashing. But it wasn’t invented by the Framers, nor foreseen by them. It developed after the Constitution was ratified. This horrible, anti-democratic, hyper-partisan practice — certainly an affront to the notion that all votes should be given equal weight — was unknown and unintended when the Framers came up with their plan.
(Ironically, one of the fathers of gerrymandering and the guy for whom it was named was Elbridge Gerry of Massachusetts, who was at the Constitutional Convention, refused to sign the final document and campaigned against its ratification, but later figured out how to take advantage of the power over district boundaries to favor one’s own party.)
Baker also attacks what might be called the permanent and most extreme malapportionment in our system, the equal representation of all states in the U.S. Senate. But Baker seems to understand that however deeply undemocratic and violative of the basic principle of one-person-one-vote that provision is, the Constitution would never have been ratified if that guarantee to the small states had not been included. (And I suppose if I were a small state, back then, I would have understood their concern.)
I’ll just do one more, and then saddle up my high horse and ride away. The one more is the ridiculous Electoral College system. But, here again, it’s not fair to blame the Framers for what it has become.
According to Baker, the original vision was that the voters of each congressional district would elect someone from their district as an elector, perhaps a member of the elite who had the confidence of the masses and who was familiar with the national scene in a way that ordinary voters were not. Each of those electors would vote for two men (of course they would be men, and white ones), both of whom they thought were worthy of consideration to be president (and at least one of whom had to be from a state other than the elector’s own).
All of those named by such electors would be pooled together in the capital. And, if anyone was named on a majority of those ballots, that guy would be president and the runner-up would be vice president. If no one received a majority of the votes for president, the final choice would be made by the U.S. House from among the top three finishers on that electoral ballot.
If that sounds crazy to you, fine. But that was the plan. If you had no national parties, and if you didn’t want the House to choose the president directly, the crazy elector plan perhaps has some appeal. But it basically never happened as envisioned.
By the time Washington cleared the scene, the first national two-party system had developed, and those two parties rigged the game (without amending the Constitution) so that whichever party controlled a state, they could channel all of that state’s electoral votes to that party’s presidential candidate. That practice basically changed the system (without amending it) to what we have had ever since, the whole state-by-state winner-take-all-electoral-votes-and-electors-are-just-party-functionaries voting for their party’s nominee deal. It’s bad, but it bears little similarity to the system the Framers thought they were framing. It’s hard to hold the Framers accountable for what happened, but you can if you want to.
One cool detail I had never read before, until I read it in Baker’s piece in piece was this:
Hamilton and Madison (the two biggest players in writing the Constitution) both were shocked to see the whole system taken over by political parties that generally gave all of a state’s electoral votes to the winning candidate. Hamilton even penned an amendment designed to compel voters to choose electors district by district.
But that amendment went nowhere because the framers made the threshold for amendments so high,that we can’t even get the Equal Rights Amendment ratified.