Let’s Write a New Constitution

Progressives have been worrying for some time about a move by a group with links to the notorious Koch brothers to encourage states to call a constitutional convention, which article V of our Constitution expressly allows.

Other “conservatives,” not necessarily allied with the Koch brothers, are keen to defend the electoral college. The two propositions are not necessarily in tension. Apparently a primary goal of the Koch brothers is an amendment requiring the United States to maintain a balanced federal budget at all times, which we could add, if enough of us think it’s a good idea, without having any impact at all on the existence or operation of the electoral college.

We hear incessantly these days about “our democracy,” which we do not have. This mistake is the honorable result of various efforts in the twentieth century to maximize the number of people who can vote in the United States, with such devices as an amendment to the Constitution that prohibits discrimination in voting on the basis of sex, woman suffrage, and a law finally enforcing the existing amendment that prohibits discrimination in voting against African Americans, as well as another amendment that prohibits states from setting their minimum voting age above 18.

But we do not have a democracy if by that one means a government that operates on the principle of majority rule. The Constitution prevents majority rule in numerous ways, and the electoral college is only one. The Constitution provides that every state gets a number of votes in the electoral college equal to its number of members in the House of Representatives, plus two for its two Senators (the Senate, in allotting two votes to each state, is another mechanism for preventing majority rule). The Founders intended the Constitution much more to protect the rights of minorities than to enable majority rule. They were more concerned about the rights of property owners than the rights of the slaves many of them owned. We now define “minority” very differently than they did.

The “conservatives” who defend the electoral college in some sense are defending a minority. They are happy with Donald Trump as president, and Trump did not win a majority of the popular vote, but only gained the presidency through the operation of the electoral college.

So let’s take them at their word. Let’s put even more robust protections for minorities, in the modern sense, into the Constitution. Let’s call a constitutional convention and define representation in it sort of the same way we do in the Senate, which contributes to the protection of minority rights by preventing majority rule.

Let’s stipulate in advance that every identifiable minority group, plus women, who are a small majority of the population but suffer discrimination similar to what most minority groups suffer, get a percentage of the seat at the convention equal to their percentage in the population. So, since African Americans are roughly 14 percent of the population, they should get 14 percent of the seats in the convention. Women would get 51 percent of the seats. We could calculate the corresponding percentages for Hispanics, Asians (suitably broken out by nation of origin — no reason to think the Japanese agree with the Hmong on everything), Muslims (again, broken out by nation of origin), etc.

I wonder how well the Koch brothers would like that idea?

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Uppity gay, Buddhist, author, historian.

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