Tuesday, August 9, 2022

A Failure of American Federalism

 

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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