By Dan Kennedy • The press, politics, technology, culture and other passions

How a super-empowered minority and our outmoded Constitution upended Roe

The U.S. Supreme Court’s decision to overturn Roe v. Wade is so huge and terrible that it’s difficult to get our arms around it. So let me just look at a small chunk of it — the deeply undemocratic nature of our electoral system. You can find various polls with differently worded questions, but, in general, the public was firmly in favor of retaining Roe before Thursday’s decision. So how did we get here?

I’ve written about this before, but it’s worth repeating. A healthy modern democracy is based on the will of the majority, with protections in place for the minority. That’s why we have the Bill of Rights. Unfortunately, we now have a situation where a minority of voters is so super-empowered that how the majority votes almost doesn’t matter. Consider:

  • Donald Trump’s three Supreme Court justices — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — were nominated by a president who lost the popular vote in 2016 by nearly 3 million votes. That’s a significant margin. But because the Electoral College favors small states, which are mostly Republican, Trump was able to defeat Hillary Clinton.
  • Those three justices were confirmed by a Republican Senate that represented far fewer Americans than the Democratic senators did. In the current 50-50 Senate, Democrats represent nearly 42 million more people than Republicans. That’s because each state gets two senators, regardless of population.
  • The skew is only getting worse as liberals move to more urban areas. Indeed, you can expect that one of the effects of the Roe decision is that young people will flock to urban areas in blue states — thus empowering small-state Republicans even more.

If something can’t go on forever, then it won’t. More than half the country isn’t going to put up with being permanently disempowered. I don’t know how we get from here to there, and make the changes we need to our outmoded 18th-century Constitution, but I’m confident that we will. Change looks impossible — then, suddenly, everything changes all at once.

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  1. StephenB

    Dan, I underscore your term “outmoded Constitution.” It’s long past time that we adopted a new Constitution, what I’m calling Constitution 3.0, since I consider the Articles of Confederation to be version 1.0 and our current Constitution version 2.27. I would like to be as hopeful as you in believing that this change will happen suddenly, but, sad to say, I feel that we are going to have to endure a long troubled period of increasing scission and partition, some of it violent, before we arrive at any type of beneficent society.

    • Dan Kennedy

      I didn’t say it wouldn’t be violent. Unfortunately, I suspect there will be a great deal of violence.

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