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September 29, 2007

License to Pontificate

by Nicholas Beaudrot of Electoral Math

Larry Sabato opens up the floor for outside the box thinking on the structure of our current government. As he points out, the founders thought the Constitution ought to be amended or replaced with some frequency. Instead, things have changed subtly, through shifts in judicial interpretation and occasional spurts of amendments (the Civil War, the Progressive Era, and Civil Rights amendments). But Sabato points out that the Constitution was written for a nation of farmers (and a substantial number of textile factories in the North) at a time when the difference in population between Virginia and Connecticut was much lower, and you courier your messages to the capital.

Sabato promises to start with what's wrong with our current constitution, so let me throw out a few ways in which the country is has changed since the time of the Founders. Some of this is ground Professor Sabato has already covered, but here we go. Add yours in the comments:

  • The ratio of small-state to large-state populations has increased. In 1790, Virginia had 12.5 times the population of Delaware. Today, California has 70 times the population of Wyoming. In 1790, Senators representing 14.7% of the population could sustain a filibuster under today's rules; today, that figure is 9.9%. I'm fine with the somewhat countermajoritarian nature of the Senate, but it's clear that things have gotten a little bit out of hand.
  • Judges are appointed earlier and retiring later. Since 1980, turnover on the Supreme Court has ground to a near standstill. The situation on the lower courts, especially the DC circuit, is almost as bad. The Founders intended for the Courts to change slowly, but not this slowly.
  • Travel is much faster, but the country is much larger. As recently as the 1960s, DC airports didn't have direct flights to much of the country. The common practice of Congress was to stay in the District for seven months, then stay in their home state or district and meet with constituents for five months. Today, most members fly home every weekend, even during session. This puts tremendous strain on Western members, who must endure six hour flights while their colleagues in New York can catch an hourly shuttle that gets them home in 45 minutes. At this point, it seems fair to consider moving the capitol, or at least having an auxiliary capitol that might be used every other year. The population center of the US is currently in central Missouri and continues to march West, so either moving the capitol to Kansas City, or putting a secondary capitol in Denver should do the trick.

    Somewhat separately, there is now tremendous pressure to be in one's home district all the time. When combined with the crush of fundraising, this limits the time that members have to collaborate with one another. We ought to make Constitutional provisions to ensure that members have the time and space to meet, rather than rely on staff at all times.
  • The population has grown-a lot. The House has not kept up. The constitution mandates a state can have no more than one member of the House for each 30,000 residents. In the initial apportionment of the House, Pennsylvania received one for each 55,000 residents. Today each member represents about 700,000 residents. With a district sized to 1790 standards, a candidate could canvass the entire population in one Friedman Unit, meaning that every member would theoretically be vulnerable to a low-cost challenger. In addition, the effectiveness of TV advertising would drop to zero in most urban areas. Though, a figure that low would have other problems. California alone would have 650 members; Wyoming would have 9; the House as a whole would have 5454 members, which is clearly unworkable. In general, European countries have around one member per 100,000 residents; Japan, one per 265,000 residents; Russia, one per 320,000 residents. We ought to think about whether it's possible to have a much larger House with smaller congressional districts, with the hope that members will be more responsive to a smaller population and unable to win elections merely by blanketing the airwaves.
  • Communication speed has increased dramatically. You no longer have to send messages to DC by horseback. You don't even have to telegraph them. I don't know what changes this implies to the structure of government, but clearly things have changed.
  • Fundraising consumes too much time. Money will always be a part of politics, but at this point, the cost of campaigns has spiraled out of control. In order to win a Senate seat, you must either (a) self-fund, (b) know a lot of rich people with an inclination to give money to politicians, and/or (c) rely on a cadre of unelected fundraising consultants. We ought to admit that money is part of the political process, and decide just how much we want to allow individuals to curry favor through campaign contributions.
  • Presidents keep going to "war" without, you know, asking Congress to declare war. See Korea; Vietnam; Iraq I; Iraq II. I've mentioned this before, and I'm glad to see I'm not the only one whose noticed.

    Also the natures of both conventional warfare and guerrilla warfare have changed. And while we're at it, the United States has a very large standing Army, Navy, and Air Force. The Constitution does not envision any sort of permanent ground force (though it does envision a permanent Navy), and while President's since Jefferson have authorized military operations without declaring war, the Framers intended for the balance of power to favor isolationism. It seems the proper response ought to be to set up a system that allows for a simple majority authorization for small-scale or low-intensity actions such as the re-installation of Aristede in Haiti or the invasion of Grenada, while requiring a 2/3s majority for something like the invasion of Iraq, or even the air campaign in Kosovo.

September 29, 2007 | Permalink


hell, let's break up into 5+ new nations

i am completely serious

Posted by: bob mcmanus | Sep 29, 2007 12:01:58 PM

This is not so much "out of the box," but I read over at Balkinization the proposal that the presidential veto should be reduced to a matter of strict constitutionality. I like this proposal, a lot. We clearly have in our position of chief administrator, with the support of 1/3 of the senate, a working kingship, and one of the most pernicious and damaging myths that has evolved about American government is the idea of "separate but equal branches." One look at the constitution clearly shows this to be wrong, wrong, wrong. Veto power based solely on the grounds of constitutionality would go a long way towards returning congress to its rightful role as the primary branch of our government, and would help reign in a runaway presidency.

Posted by: Conrad's Ghost | Sep 29, 2007 12:31:27 PM

bob mcmanus
sorry to have heard about your arm. (you mentioned yesterday)
hope you feel better soon.

Posted by: jacqueline | Sep 29, 2007 12:39:17 PM

The 1787 Constitutional Convention was a special moment in history, a point in time when something unique managed to emerge from the usual run of self-interest, greed, cruelty and myopia that governs human existence.

Yes, it is is terribly flawed - in ways that are almost entirely traceable to the existence of slavery - but it is far, far better than what would emerge from a convention held today.

And to the extent there is any broad-based commitment at all to civil rights and basic freedoms in this country, that commitment stems from our civil religion, which is Constitution-worship. In the mythology of this country, the Constitution is Holy Writ. There is no way to propose major changes to the constitution without tarring yourself as anti-American.

And suppose you were successful in convening a convention to reform the Constitution in major ways. You would unleash forces that would inevitably smash it up. Can you imagine what presidential power would look like after a constitutional convention held today? Do you think there would be a fourth amendment? A right of habeas corpus? An independent judiciary?

There's a lot not to like in the Constitution, but we are stuck with it. Instead of fantasizing over how to change it, we should be figuring out how to use what we've got.

Posted by: Bloix | Sep 29, 2007 12:55:01 PM

What Bloix said.

Here we are in a situation where we can't even allocate bandwidth equally. You're going to let the same forces loose on our Constitution?

Can't wait for the Harry and Louise commercials.

Posted by: leo | Sep 29, 2007 1:05:16 PM

who is there left that believes even a third convention limiting the president's power would have any effect on this president?

Posted by: Cody | Sep 29, 2007 1:06:22 PM

As to an actual physical full-time Capital...

Provide every Congressperson - for in the backyard
or a driveway somewhere - a fully equipped comm trailer
packed with every secure device, every bandwidth, whiteboards, full vid channels,
chatrooms and voting mechanisms or whatever.

And keep them home.
[Let the bloody Lobbyists assume the commute!]
6 months out of the year...
Or longer. Get to know the folks, maybe.

[NOT an original idea...old actually first read it from a WSJ guy who moved from Pinkcloudville to
Des Moines and the Register. Dunno his name but the idea stuck and still seems cogent.]

Posted by: has_te | Sep 29, 2007 1:08:27 PM

Just to echo bloix, who nails it, I think - the force that is keeping conservative interests for holding a Constitutional Convention in check is fear of what liberals want; I think the equal, opposite fear should keep us from holding one as well. Yes, what we have doesn't work perfectly and could, in subtle ways, be changed; but proposing those changes would like unleash other, less subtle forces bent on some serious mischief. I'm all for some of these changes... but I think step one is convincing the opposing side and building a coalition for them. I think some of what's proposed here is meant to do an end run around the hard work of actually getting people to come together around an idea. That still needs to happen.

Posted by: weboy | Sep 29, 2007 1:25:39 PM

When you can't get what you want at the ballot box, try changing the rules.

Posted by: El Viajero | Sep 29, 2007 1:56:29 PM

Judges are appointed earlier and retiring later. Since 1980, turnover on the Supreme Court has ground to a near standstill. The situation on the lower courts, especially the DC circuit, is almost as bad. The Founders intended for the Courts to change slowly, but not this slowly.
I blame the health care industry. There's only one way to extend those lifetime terms.

Seriously though: the point of the lifetime term is to keep judges from being dependent on quid pro quo after they leave the bench (and/or reappointment). Changing to something like a ten-year term might make judges look nervously at their reappointment prospects before ruling that the Administration does too have to obey the law (etc.)

Also, you ignore the biggest elephant in the room: the Electoral College. Electors are no longer well-known, trusted local figures who employ their own judgment in choosing among candidates who are unknown to the voters of other states. So why have them at all?

Posted by: Chris | Sep 29, 2007 2:00:48 PM

Chris: you don't have to have term limits, a minimum age of 50 for lower courts and 55 or 60 for Supreme Court Justices, or a mandatory retirement age (several states have one!) would do the trick.

The most common proposal is for fixed 18 year terms, which guarantees that, barring a justice dying, each President gets to appoint the same number of judges.

Posted by: Nicholas Beaudrot | Sep 29, 2007 2:14:27 PM

The ratio of small-state to large-state populations has increased.

I think you mean the opposite of this.

Posted by: DonBoy | Sep 29, 2007 2:56:03 PM

"hell, let's break up into 5+ new nations"

It's an idea that's comes up every once in a while (1860s aside) - that either we should form new nations, or that we already *are* a collection of such disparate regions, on such different trajectories, as to almost *be* so in all but the formal bits: see for example Garreau's 1981 The Nine Nations of North America.

I sometimes wonder if it would be a good thing to have not national breakup, but a middle layer of regional political organization between state and State. Of course, there's also the reality of significant variation within regions between urban/rural/sub-exurban lines.

Posted by: Dan S. | Sep 29, 2007 4:39:29 PM

the breakup is coming, eventually. it's all part of morphing into the Bizarro Soviet Union, along with the Ministry of the Interior, internal passports, and show trials. so do we make it velvet or brillo?

we're way too big, way too stupid and way too dangerous.

Posted by: tatere | Sep 29, 2007 6:16:54 PM

I suspect the future of the world will be federalistic states about the size of the US. This has to do with being large enough to form reliable internal markets and have enough clout to function in a world economy.

As for changing the Constitution, while I think that a revolution may be a lot closer than most of us recognize, I would be very surprised if it involved any big changes to the Constitution.

The reason for this is that a revolution would most likely be seeking to restore the Constitution- restoring the Bill of Rights, returning the President to the role of executing legislation that originates in the Congress, and not funding the military for a term of greater than two years.

These would all be monster changes but they restore the law and primacy of the Constitution instead of changing it. If we don't have what it takes to restore the Constitution we had, we certainly won't get anything better by changing it.

Posted by: serial catowner | Sep 29, 2007 7:30:02 PM

As others have noted, the Electoral College deserves some thought, but I think there is also a more complex problem arising.

The original framers never thought that parties could be that powerful. The slow pace of communication and the relative unimportance of money in elections meant that House and Senate members were much more beholden to their voters than to the party. That tradition lasted a long time, indeed I remember an Iowan telling me back in the 1990s that they were more interested in the candidate than the party in various elections.

The rise of the K-Street project etc. has changed all that, probably for good. Party discipline for the party in power (at least) is a real phenomenon.

Why does that matter? Because it neutralises the checks and balances? What needs to be done exactly? Not sure, but sounds like you need some new checks and balances to add to the old ones...

Posted by: Meh | Sep 29, 2007 7:32:01 PM

Well, color me old, but it used to be that your poli sci course would explain to you why the two-party system was necessary and inevitable here. That explanation may have been a little overdone, but OTOH every political operative in the US took those courses so it's got a pretty broad installed base.

I'll spare you the blow-by-blow, but it involves forming actual majorities from pluralistic constituencies to elect candidates or pass legislation.

You'll note that here again, it's not the two-party system that has failed us. The problems right now include two stolen elections, and the effective disenfranchisement of that half of the electorate that does not actually vote. You can't expect a democracy to work very well if a full half of the people aren't voting.

Naturally the founders of the Constitution feared faction- their entire lives had been spent struggling against imperial domination by Britain.

But faction of some sort is probably inevitable and it might be argued that, on the balance, the two dominant parties prevent or control more faction than they cause.

Posted by: serial catowner | Sep 29, 2007 7:51:16 PM

I'd be all for modifying and improving the Constitution if I weren't frightened to death that any such serious opportunity wouldn't lead to the scrapping of anything I ever appreciated about it.

If half the Constitutional convention had comprised the type of lunatic right wing anti-democracy gang of thieves which rules us now, I don't see it having ever have happened.

Posted by: El_Cid | Sep 29, 2007 9:13:03 PM

You will see the breakup of the US (or the reformulation of something closer to a confederation) before there's substantive constitutional change. Stagnation is its own precedent.

In the meantime, the GOP can't get what it wants at the ballot box, so proposes the marriage amendment, the flag-burning amendment, etc. ad nauseam.

Posted by: pseudonymous in nc | Sep 29, 2007 10:44:59 PM

If half the Constitutional convention had comprised the type of lunatic right wing anti-democracy gang of thieves which rules us now, I don't see it having ever have happened.
Back then, those people were called "Tories", and they weren't admitted to the convention because they had just finished losing the war.
you don't have to have term limits, a minimum age of 50 for lower courts and 55 or 60 for Supreme Court Justices, or a mandatory retirement age (several states have one!) would do the trick.
Outsourcing turnover to the Grim Reaper is what the founders did: we now know that it breaks down eventually. Mandatory retirement age might work, but the more post-retirement lifespan the judge is looking at, the more he/she is going to be concerned for who is going to give him/her a nice cushy position after retirement, and quid pro quo comes back into the equation.

Posted by: Chris | Sep 30, 2007 2:33:12 PM

Moving the capital is a nice idea, but the expense of basically building a whole new city in the midwest boggles the mind (not to mention what it would do to the economy of DC if the federal government suddenly disappeared). Maybe you could mitigate that by moving just Congress, so all the executive agencies stayed in DC. And while we're changing things about the capital, let's give DC (and the new capital) some representation in Congress.

I think judicial term limits would work if you gave a generous pension and imposed strict rules about when a retired judge could accept money.

Posted by: Stentor | Oct 1, 2007 5:42:11 AM

"Maybe you could mitigate that by moving just Congress, so all the executive agencies stayed in DC".

Yeah ... that's why I think the auxilliary capital is more workable. You need somewhere where votes and only the most important meetings can take place. So, everyone in Congress, the CoS, everyone in the white house, every cabinet level official, and probably every subcabinet level official as well.

Posted by: Nicholas Beaudrot | Oct 1, 2007 2:54:56 PM

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