Noah Feldman

What If the Constitution Keeps Eroding American Democracy?

Partisan gerrymandering in the computer age has undermined majoritarian democracy — that much is clear. Using algorithms to give one party a numeric advantage over another is more effective than old-fashioned gerrymandering done by hand, and reduces the number of competitive districts for the House of Representatives.

It’s equally clear that no solution to the problem is in sight. As statistical modeling becomes more sophisticated, things could conceivably even get worse. The Supreme Court flirted with ruling that partisan gerrymanders were unconstitutional, but ultimately opted against intervening. It won’t take up the issue again under the court’s current composition.

Congressional Democrats tried to pass the Freedom to Vote Act, which would have outlawed partisan gerrymandering by requiring neutral districting methods. The bill foundered for lack of support from centrist Democrats.

Recently, state supreme courts in North Carolina and Ohio have bravely weighed in to block particularly egregious Republican gerrymanders. The good news is that the US Supreme Court can’t reverse those decisions, since they are based on state constitutional grounds. But with 50 such courts around the country, many of them controlled by the same party that runs the state’s politics, reliance on state justices isn’t an adequate solution, either.

In response, Democrats are adopting the time-honored strategy of “if you can’t beat them, join them” in the states where they hold power. New York’s legislature is adopting a gerrymander aimed at grabbing several seats for the party. Illinois Democrats are doing something similar. Once both parties are relying on aggressive computer-assisted partisan gerrymanders for their safe seats, national legislation requiring neutral districting will become a utopian fantasy.

Can our constitutional democracy withstand this troubling new reality? To hear voting-rights advocates tell it, the answer sounds as if it should be no. Partisan gerrymandering clearly contradicts the principle of one person, one vote, in which everyone’s vote has equal value. If it is now permanent, then it would seem to erode the very possibility of fair voting.

On closer examination, however, we have cause to think that constitutional democracy can survive. It’s not that partisan gerrymandering won’t continue to undermine majority rule. It will. The reason is that our democracy is, and has always been, far less predicated on majority rule than we imagine.

The US Senate is an extreme departure from one person, one vote. The Supreme Court has the power to be counter-majoritarian, and exercises it. The Electoral College disempowers millions of voters in states with large partisan majorities.

Partisan gerrymandering has existed since earliest days of the Republic, even before Governor Elbridge Gerry of Massachusetts involuntarily lent his name to it in 1812. While computer-aided gerrymandering makes the partisan bias worse, it is different only in degree, not in kind.

In other words, our constitutional democracy co-exists with a pretty radical lack of respect for majority rule. We would do well to reduce that where we can. But when we fail, we shouldn’t resort to the rhetoric of existential threat. We should look in the mirror — not through Instagram filters — and recognize the truth, which is that we don’t have a majoritarian Constitution. We never did. And we never will.

We are accustomed to being told that the framers of the Constitution were suspicious of popular majorities. That’s true in some ways. Certainly the framers did not choose a popularly elected president, preferring to leave the selection of electors up to the states, which at the time relied on their legislators to choose the electors. Some framers wanted only propertied white men to vote — although, again, they left the decision of who could vote to the states.

Yet that narrative is also too simple, at least when it comes to their greatest anti-majoritarian institution, the Senate. James Madison, primary architect of what became the Constitution of 1787, wanted the Senate to be established on the basis of state populations, like the House of Representatives and the Electoral College. True, state legislatures were to choose the senators, and they were imagined as nature’s aristocrats, not men of the people. Their numbers, however, were supposed to reflect the actual distribution of the population, allowing for the morally repugnant three-fifths compromise.

Madison was therefore astonished and outraged when the small states, led by New Jersey, insisted on the equal representation in the Senate that they had in the old Congress under the Articles of Confederation, and that they also had at the Constitutional Convention. He and other large-state delegates to the convention tried to cajole, reason with and ultimately threaten the small states with inevitable war unless they relented.

In response, the small states walked out of the convention. That sufficed to force the large states, including Madison’s Virginia, to agree to the so-called Great Compromise. The small states were so worried that majoritarianism would eventually be used against them that they wrote in a guarantee that they could never lose their equal Senate representation without their consent. That effectively made the provision unamendable, and it’s why we are stuck with the Senate as long as we keep the US Constitution.

Despite his enormous influence in Philadelphia over the long summer of 1787, Madison left the convention dejected. He knew the structure of the Senate deviated wildly from the way a democratic republic should be designed.

He was not similarly worried about the Electoral College because it wasn’t yet an obvious distortion of popular will. In the first presidential election, some state legislatures chose the electors, while others ran popular elections. It was only as all states started running popular elections that the Electoral College system began to disempower voters in states with large one-party majorities. In this sense, one of our most notably non-majoritarian institutions is the result of an accident.

The Electoral College’s effect in suppressing majority rule is reversible, constitutionally speaking, without an amendment. States don’t have to use winner-take-all as the principle for choosing electors. Maine and Nebraska don’t, in fact. Or the National Popular Vote Interstate Compact might conceivably kick in some day, so that the president is chosen by genuine popular vote.

By contrast, what’s striking about the Senate is how unchangeable it is. In the U.K., Parliament became more representative through the extension of the vote to more and more people during the 19th century. In the US, the franchise was extended to Black Americans and then to women roughly over the same period of time. But the Senate never changed. It now stands as a permanent anomaly of US democracy.

The people who made the American Revolution rallied around the slogan “no taxation without representation.” But it was not until 1964 that the principle of “one person, one vote” came to be considered part of US constitutional norms.

In that year of civil rights signs and wonders, the Supreme Court first held that congressional districts should be of the same population size. Then it decided that the same rules apply to state legislative districts — even for state senates, some of which were districted by state constitutional law the same way as the federal Senate.

The court’s language was more cautious than the “one person, one vote” adage would suggest. It said that the Constitution “means that, as nearly as is practicable, one man's vote in a congressional election is to be worth as much as another's.”

Recognizing that the Senate did not fit this description, the court said that any other outcome “would defeat the principle solemnly embodied in the Great Compromise — equal representation in the House for equal numbers of people.” This equivocal formulation asserted that equality in the House of Representatives was as much part of the 1787 compromise as inequality in the Senate.

But that had not been true as a historical matter. The original compromise gave state legislatures discretion to design congressional districts, and those legislatures had not rigorously adhered to the numerical guidance that the Supreme Court of the civil rights era was now imposing on them. And it was an extraordinary reach to apply the one-person-one-vote rule to state senates, contradicting as it did the constitutional norm that applied to the US Senate.

For three decades, the courts treated the Voting Rights Act of 1965 as providing binding rules for how districts should or should not be drawn with respect to racial equality. Designed to implement one person, one vote, the law prohibited states from intentionally dividing up Black voters into different districts where they would not be a majority and their votes diluted.

The tables turned in the 1990s. In 1993, the Supreme Court construed the Constitution to prohibit the practice of designing districts with a focus on the racial composition of the voters. The twist was that the case involve a district designed to elect a Black candidate. The shape of the district, the court said, was so “bizarre” that it offended the idea of equal protection of the laws, even though the population of the district was the same as the population of all other districts.

That put the Supreme Court in the business of reviewing the constitutionality of new districting — so long as the question was whether the districts were being gerrymandered by race. The litigation that followed helped give rise to the creation of a new field of law, sometimes called the “law of democracy.”

Logically, the Supreme Court might then have gone on to outlaw partisan gerrymandering. Yet despite liberal efforts to get it to do so, the five votes necessary never materialized. The current state of the law is that it is ordinarily unconstitutional for a state legislature to account for race in drawing congressional district lines, but permissible to target partisan affiliation.

The takeaway is that the reforms in the civil rights era were more limited than is popularly imagined. Some of the worst excesses of the use of districting to disenfranchise Black voters were eliminated. More Black members of Congress were elected as a result.

But the conservative Supreme Court substantially limited the effects of the Voting Rights Act. From the standpoint of pure democratic representation as it is understood around the globe, today’s arrangements in the US are woefully backward.

Originally, the emerging use of computer programs to draw political boundaries was seen as a tool to encourage nonpartisan districting. The reality turned out to be the opposite: State legislatures can design partisan boundaries more successfully than they could in the old days. The number of competitive US House districts continues to decline.

It is therefore time to acknowledge that the US Constitution, as written and as interpreted by the courts, does not mandate pure representative majority rule, or anything like it. The US system is not parliamentary — not even close. It does not express the will of the people by giving each person an equal say in who is elected. And if the Senate is taken into account, it never will.

To win the presidency and control the Senate, Democrats must win substantially more than half the votes of the voting public. That’s not fair. But it’s a feature of our system, not a bug. While we should work to find ways to change it — the fight for equality is unceasing — we should also realize that Republicans will fight those changes out of self-interest. Fundamental constitutional transformation is not in the cards.

Probably no one would want to design a democratic system from scratch this way today. Our constitutional arrangements are the result of events that go back to the way Britain chartered colonies in the Americas. They incorporate theories of politics that resonate with the late 18th century more than the early 21st. Not only are they not perfect. They aren’t even just, seen through the lens of contemporary conceptions of equality and equal voice.

They are also what we have. So while it is valuable to insist that some political arrangements are bad and need to be improved as much as possible, we should be able to do this without simultaneously and apocalyptically claiming that, if they don’t change, the entire constitutional system will collapse.

Someday it will crumble and die — all political systems do. But the odds are that it won’t fail for the foreseeable future. And that’s the only future that needs to worry Americans alive today.