Can this Constitution be Saved? Pondering the Democratic Role of American States

Guest Blogger

This post was prepared for a roundtable on Can this Constitution be Saved?, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.

Jennifer Hochschild

Like others in this series of posts, I start with Sandy Levinson’s publications on “our undemocratic Constitution.” Also like others, my admiration is strong and deep—but my task here is to raise a concern and use it to motivate a few questions. They are genuine questions; I can’t answer them definitively, and I lack even clear intuitions about the right answers.

As a metaphor for encouraging Americans to get some distance from and deconstruct the United States’ founding document, Sandy’s call for a new constitutional convention is liberating and galvanizing—witness the breadth of analysis on the LevinsonFest panels in these blogposts, and in all discussions of his work. But as an actual political event intended to construct a new constitution to salvage the United States’ tottering liberal democracy, a new convention would make me very nervous. I am skeptical of democracy tout court, and almost as dubious about a majority-based deliberative process even if it were held under purportedly constraining rules.[1]

Why? Because I have studied American racial politics for most of my career. I cannot think of any point in American history (starting, of course, in 1787) in which a majoritarian constitutional convention would have moved very far toward racial equality and justice—and I am not confident about the racial consequences of a democratic constitutional convention even today. (I might make the same argument about movement toward economic equality and justice, but for current purposes I don’t need to expand beyond race.)

Nonetheless, Sandy rightly insists that the poisonous persistence and structural consolidation of disfranchisement and unequal enfranchisement calls our constitutional design into question. Greater or lesser degrees of disfranchisement, especially of those with the fewest resources, ranges from formal or practical felony disfranchisement, through electoral rules that formally or practically restrict citizens’ opportunity to cast their votes, to manipulation of which state offices are elective or appointive and by whom.

Most of all, of course, the constitutional design of the US Senate and Electoral College create the greatest inequalities in individuals’ voting impact. That Democrats are advantaged by Rhode Island and Connecticut as much as Republicans are benefited by Wyoming and North Dakota does not change the fact that the Senate and Electoral College grossly violate any plausible definition of majoritarian democracy.

But do the Senate and Electoral College violate any plausible definition of democracy? Maybe not, if we understand democracy to be equal representation of important group interests rather than of individuals. That understanding is instantiated in the equal number of French- and Dutch-speaking ministers in Belgium’s federal government, and has been explored as a way to equalize the political power of the United States’ unequally-sized racial and ethnic groups. It was at the core of justification for the Senate. Since a new American constitutional convention is highly unlikely—perhaps luckily—it seems worthwhile to reconsider whether equal state representation has any virtues that can offset its obvious defects of democratic equality.

Here is where my questions emerge. They boil down to: which if any of the following justifications for equal representation of states, as intrinsically legitimate political units, has moral force, empirical support, or even both? 

• ·         For most of American history, citizens have expressed more loyalty to local or colony (then state) cultures than to the remote and perhaps dangerous federal government. State loyalties have been associated with great harm—for example, Robert E. Lee’s choice of Virginia over the United States in 1860—but do they also have a value that political structures should reflect? To cite only one example, most Americans prefer local governance of public schools to state control, and prefer state control to federal control. More generally, in deciding what entity deserves equal representation in the federal government, how should we weigh individual, localist, nationalist, and cosmopolitan commitments and emotional ties? Perhaps states are meaningful; after all, “Rhode Island calamari just won the whole election” in the Democrats’ 2020 nominating convention[2]:

• ·         A long-standing justification for a high level of state autonomy is that states serve as laboratories for democracy; they experiment with new policies, narrative frames, or treatment of residents in ways that can provide (positive or negative) models for other states and the country as a whole. Liberals’ favorite case is the development of an old-age social security system in Wisconsin that was the modal for FDR’s New Deal; conservatives’ favorite case might turn out to be Texas’ new vigilante-based abortion law. States continue to vary in crucial ways on controversial policy choices such as access to abortion, felony disfranchisement, or environmental protections. How deeply should the nation value the varied views and experiences of senators who emerge out of different experimental settings? 
• ·         David Mayhew has argued that the perhaps ridiculous plethora of American elections (PoliEngine reports 520,000 elective offices in the US) serves as a safety valve to release pressure emanating from disagreements among the huge and wildly diverse American electorate. Perhaps states’ separate representation in the federal government serves a similar function—enabling disproportionately conservative residents of Wyoming, and disproportionately liberal residents of California, to see their own distinctive and fully legitimate standing in the federal government. If the safety valve metaphor is apt, equal state representation at the expense of equal individual (or group) representation may be necessary to keep the governmental engine from blowing a gasket. 
• ·         Many people in my generation of scholars imprinted on the 1960s; our formative political experience was watching all three branches of the federal government do more to foster rights, democracy, racial, class, and gender equality, and environmental protections than did the states. “States’ rights” evoked George Wallace; the federal government evoked Earl Warren. Subsequent expansion of university teaching positions, and funding for social science research and publications, helped to consolidate that imprinted experience into the core frameworks and findings that political scientists and legal scholars now build upon. 

But even if it really existed, what if that era is over—and was in any case an anomaly across the expanse of US history? Can we rely for the foreseeable future on the federal government to guard cherished rights, maintain downwardly redistributive policies, expand opportunity and respect? If not, perhaps inconsistency across states offers some protection against a unified federal government careering off in the wrong direction; California can expand policies to combat climate change even if Congress does not. In that situation, we might want to protect state authority, even if that includes equal state representation in the Senate. In short, in keeping with both James Scott on the left and Edmund Burke on the right, the idiosyncrasies and inefficiencies implied by the equal political standing of California’s and Iowa’s senators might help to protect us against sliding into Viktor Orbán’s “illiberal democracy” or even worse. 

As I noted, I have no clear views on these questions, or even a strategy for achieving a clear view. Nor do I have a sense whether, for example, if I were persuaded by the first and third claims but not the second and fourth, that would be enough to defend the Senate (and Electoral College?), despite their manifest representational inequality. The issue is philosophical—When should individual equality outweigh group equality?—as well as empirical—How would one measure and weigh the relative merits and flaws of individual and group equality? It is also political: if the current Constitution no longer warrants fealty, what sort of constitutional convention could protect against evil and promote good? I hope LevinsonFest participants have answers, because I don’t. 

Jennifer Hochschild is the Henry LaBarre Jayne Professor of Government and Professor of African and African American Studies at Harvard University. You can contact her at hochschild@gov.harvard.edu.