A Failure of American Federalism
August
9, 2022
There is a
widespread misunderstanding among the American people. The United States of
America is not a democracy as so many Americans assume it to be. It is a
constitutional republic. It is a nation with a representative form of
government the structure and limitations of which are set out in a document
called the United States Constitution. That constitution does not create a pure
democracy. It creates a governmental system in which the people elect a
president every four years, but not by a direct, purely democratic vote. Instead,
the states elect people called electors. Those people cast their state’s votes
for president and vice president in the electoral college. The number of
electoral votes each state has is the number of representatives the state has in the House of Representatives
plus the number of the state’s senators. The number of each state’s members in
the House of Representatives is determined by the size of the state’s
population. Thus, the state with the largest population, California, has far
more representatives than does Wyoming, the state with the smallest population.
Every state gets at least one member of the House even if its population is
smaller than the number used to calculate the number of representatives each
state has.
So far so good,
but here comes an enormous problem with the American federal system of
government. Every state gets two senators regardless of the state’s population.
For example, California and Wyoming each have two senators. The population of
Wyoming is approximately 581,000. Thus, Wyoming has one senator for every
290,500 people. The population of California is approximately 39,600,000. Thus,
California has one senator for about every 19,800,000 people. The discrepancy
between the number of people per senator in these two states could hardly be
more dramatic.
One result of
this unequal way of determining the number of each state’s representatives
while each state has the same number of senators is that small population
states have a disproportionately large say in the outcome of presidential elections
and of votes in the Senate. We see the disproportionate political power of
small states most clearly in the outcomes of our presidential elections. It has
happened a few times, including twice recently, that a candidate who loses the
popular vote wins the presidency because that candidate has a majority of
electors in the electoral college. I’ll use the 2016 presidential election as
an example. In that election the Democratic candidate Hillary Clinton received
65,853, 514 popular votes. Donald Trump, the Republican candidate, received
62,984,828 popular votes. Thus, Clinton beat Trump in the popular vote by
2,868, 686 votes. Yet Trump became president because he received 304 electoral
votes while Clinton received only 227. It mattered not at all that Clinton won
the popular vote by nearly 3,000,000 votes. Trump won the electoral college
vote, and that victory made him president.
Similar things
happen in the US Senate. Today’s Senate consists of 50 Republican senators and
fifty Democratic senators (counting two independent senators who caucus and
usually vote with the Democrats). Yet the Republican senators represent only
43.5 percent of American voters while the Democrats (with those two
independents) represent 65.5 percent of those voters. Therefore, today a
decided minority of American voters have senators with voting power identical
to that of the majority of American voters. The conclusion is unavoidable.
America’s federal system of government established by the US Constitution is
undemocratic and unfair to a majority of the American people.[1]
Why is our system
of government structured to produce undemocratic and unfair results? The answer
to that question lies in the context in which the Constitution’s unfair
provisions were written. To understand that context we must step back in time
to before the Constitution was written and adopted to look at the structure of the
nation the Constitution’s predecessor document, the Articles of Confederation,
created. That document expressly stated in its Article II that, “Each state
retains its sovereignty, freedom, and independence, and every power,
jurisdiction, and right which is not by this Confederation expressly delegated
to the United States in Congress assembled.” Article V created that Congress.
It said that each state shall have no fewer than two nor more than seven
members of Congress. It also says, however, that in that Congress each state
shall have one vote.[2]
In specifying the matters delegated to the Congress, the Articles emphasized
foreign relations and questions of war and peace.
We see in the
Articles of Confederation how the leaders of the thirteen original states saw
the states that joined that confederacy.[3]
They saw their various states essentially as sovereign nations that have given
only very limited authority and jurisdiction to a national government. That
government consisted only of a congress, and it is especially telling that the
Articles provide that each state shall have one vote in that congress
regardless of how many members a state sends to Congress and regardless of each
state’s population. Thus, Delaware, the smallest population state, had the same
number of votes in Congress, namely, one, as did Virginia, the state with the
largest population. This arrangement makes sense only if each of the states
truly was an independent nation that has ceded only very limited power to a
multi-nation governing body. In short order the Articles of Confederation
failed to create a viable order of cooperation between the states. Clearly something
more was needed if there were to be any sort of functioning unity between those
states. The document we know as the Constitution of the United States of
America was written and adopted to create that functioning unity.
We see a
significant difference between the Articles of Confederation and the
Constitution at the Constitution’s very beginning. The Constitution claims to have been created not by the states
but by the people of the country. The famous Preamble to the Constitution
reads:
We the People of the United States, in Order to form a more
perfect union, establish Justice, insure domestic Tranquility, provide for the
common defense, promote the general Welfare, and secure the Blessings of
Liberty to ourselves and to our Posterity, do ordain and establish this
Constitution for the United States of America.
The reference to “a more perfect
union” means more perfect than the union the Articles of Confederation created.
In the Articles of Confederation the people are mentioned only in specific
provisions about citizens of one state being, in effect, treated like citizens
of every state. The Articles are not about the people. They are, primarily at
least, about the relationships between sovereign states. For the Articles of
Confederation, the states are what matter.
In addition to
the introduction of the people right at the beginning of the document, we see
in the US Constitution its authors striking a balance between the people on the
one hand and the states that make up the nation on the other. That balance
appears in the Constitution’s provisions on the Congress, the legislative
branch of the government. The Constitution creates a legislature consisting of
two branches, the Senate and the House of Representatives. The ways the people
and the states are represented in those two houses of Congress are not the same.
The number of representatives each state has in the House of Representatives is
determined by the size of the state’s population. Thus California has 52
representatives in the House while six small population states have only one
each.[4]
In the Senate, however, each state has the same number of senators, namely, two,
regardless of the size of the state’s population. In this balance we see the
country’s conception of the relationship between the states and the federal
government shifting away from the understanding of each state as essentially
sovereign expressed in the Articles of Confederation and the Constitution’s
understanding that the states together constitute one nation. Yet the notion
still persists in that document that the nation consists of a coming together
of states that, in theory at least, retain some sort of limited sovereignty.
We Americans
today, I believe, think of our country as one nation with some relatively minor
differences between the states than as a coming together of sovereign states.
At least those of us who do not live in a state that was not part of the
Confederacy during the Civil War think of the country that way.[5]
The realm of the federal government’s jurisdiction and power has expanded
greatly since the Constitution was adopted in1789. Although lawyers know how
important state law is, I’m sure most Americans would consider federal law to
be more important than state law. And of course, unlike state law, federal law
applies uniformly across the whole country. The way in which the federal
government today sets a broad range of policies for the entire country moves us
ever more in the direction of, as the Pledge of Allegiance says, one nation. (Whether
or not that one nation is “under God” I’ll leave for another day.)
It is also
relevant to this discussion that the size differences between the states is
much greater today than it was when the Constitution first went into effect. In
those days the population of the largest state, Virginia, was roughly 12.65
times larger than the population of the smallest state, Delaware. Today
California has the largest population of any state, and Wyoming has the
smallest. The population of California is approximately 65.15 times larger than
that of Wyoming. The total population of all of the states having only one
representative in the House of Representatives is roughly 4,500,000. That’s
about 12% of the population of California. Yet those states have fully 33% of the
number of California’s electoral college votes, nearly three times the number
they should have if representation were equal in this country. It is thus
undeniable that America’s constitutional system of government gives vastly
disproportionate electoral power to small states at the expense of large
states. It also gives small states disparate power in the Senate.
There simply is
no reason for the United States to retain this undemocratic federalist system
of unequal representation. It isn’t democratic. It isn’t fair. There is of
course, with exceptions, a significant difference in political culture between
most small population states and most large population states. Wyoming never
votes the same way California does. That reality, however, is irrelevant to
this analysis. A country that claims to be democratic should be democratic. A country
that touts the notion of one person one vote really does need to make all votes
equal. Under our current federal structure, in many instances they are not. It’s
way past time for to correct that imbalance and finally become more fully what
we claim to be.
[1]
This situation is made worse by the Senate’s rule requiring 60 votes on a
procedural matter for any bill to come to the floor for argument and vote, but
that’s a topic for a different day.
[2]
The Articles of Confederation created neither an executive nor a judicial
branch of the national government.
[3]
Though the names of a couple of them were slightly different than they are
today, they were the same thirteen states that later adopted the US
Constitution.
[4]
They are Alaska, Delaware, North Dakota, South Dakota, Vermont, and Wyoming.
[5]
The Civil War was fought over slavery, but at the beginning the issue was one
of the sovereignty of the states. The states that seceded from the union and
formed the Confederate States of America insisted that they were essentially
sovereign. The north fought, initially, to maintain the union, that is, to
maintain the nation as one rather than several.
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