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CAN THE CONSTITUTION AS APPLED BE ITSELF UNCONSTITUTIONAL?

April 25, 2015

CAN THE CONSTITUTION AS APPLIED BE ITSELF UNCONSTITUTIONAL?

Consider the Senate. Even though the 20 least populous states have a smaller combined population than California, these 20 states elect 40 U.S. senators to California’s two. How does that fit the undergirding constitutional principle of “equal representation?” Those defending such small-state bias will tell you that the principle of equal representation is assured by the headcount of voters for the House of Representatives. The problem is that half a loaf doesn’t solve the problem of unequal senatorial representation because bills must be passed by both houses of Congress before submission to the executive for signature or veto.

Thus there is a gross underrepresentation of voters for the Senate in states with large populations based on the “one man – one vote” rule. The vote of the “man” (or woman) for a candidate for the Senate who lives in California has only one twentieth the electoral power by his or her vote as a voter in, for instance, Wyoming or North Dakota. Equal representation?

Does the Constitution as applied require that a voter in one state has one vote for senator while a voter in another is (relatively speaking) entitled to twenty? If so and as applied, such a result makes for constitutional inconsistency in that the principle of equal representation cannot be squared with such a relatively degraded power of one’s vote by the citizens to be governed based on mere geography. After all, voters in California are governed by senators elected in Wyoming and North Dakota and other thinly populated states as well even though they cannot vote in such other states’ elections, so in terms of voting for those who would govern them, they start with a 20 to 1 deficit in terms of relative voting power.

When our forefathers put the Constitution together in 1789 and added the first Ten Amendments (the “Bill of Rights”) two years later, our young country was still recovering from the Revolution and a government put together under the Articles of Confederation that wasn’t working. Our country amounted to a scattering of former colonies along the Atlantic Seaboard; there was no Wyoming or South Dakota or California.

Our Congress was put together using the British parliament as a template for governing. Our House of Representatives was put together like the elective House of Commons. Our Senate was put together like the House of Lords (which was composed of appointed and not elected members). Our senators were not elected by the people under the Constitution as first put together; they were elected (or appointed) by the state legislatures of states where they lived.

This didn’t work out well since there was a great deal of corruption and vote-buying among state legislators in “electing” senators, and the Constitution was amended in the early 20th century to require the direct election of senators via Amendment XVII, which reads in pertinent part as follows: “The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years, and each Senator shall have one vote.”

While this Amendment putting the election of a senator up to a vote of the people was a good idea as an extension of democracy and an end to vote-buying corruption in state capitals, it did nothing to solve the problem of underrepresentation via a relatively watered down vote of voters in heavily populated states as shown above.

There can be no underrepresentation unless there is overrepresentation, so the issue can be approached from another angle, to wit: Are voters in Wyoming and North Dakota constitutionally entitled to 20 times more voting power than voters in California and by corresponding margins in such other heavily populated states as Texas, Florida and New York? I don’t think so, but that is the way the Constitution reads and is applied these days and I think it would be a tough sell to persuade the Supreme Court as presently constituted  that the Constitution itself as here applied results in impermissible and unconstitutional outcomes in derogation of the rights of voters in heavily populated states.

Any changes in such proportional representation would probably require a Constitutional Convention, and it would not be possible to gain the constitutionally required number of votes from the small-state senators to even have one called since they would not allow a dilution of  their powerhouse status already ensconced in the Constitution.

So what to do? File a suit asking the court to find and hold that a particular section of the Constitution as applied is itself unconstitutional on grounds that one of its perhaps unintended consequences is resulting in the destruction of the greater and undergirding constitutional principles of both proportional and equal representation? Could such a suit even withstand a preliminary motion to dismiss?

I can ask the questions but I can only speculate on how to solve the issues created by the present proportional representation conundrum.  Nonetheless, I believe that our forefathers who wrote our Constitution and many of its Amendments (had they been able to foresee a future in which it took 20 votes for senator in one state to equal a single vote for senator in another in terms of relative voting power) would not have come up with the House of Lords template  that permitted state legislators to elect senators but would rather have solved such a prospective problem out front by providing for some form of voter equity in senatorial elections, probably based upon population count as with the House of Representatives. They didn’t, and we have an anti-democratic mess on our hands some 236 years later.

Meanwhile, back at the electoral ranch, why shouldn’t California have 20 senators? No? Why not? It makes just as much sense as the present arrangement.    GERALD    E

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