There’s nothing hypocritical about calling out the tyranny of the minority

I recently sketched out some ideas for how the Constitution could be rewritten in order to get ourselves out of a dilemma that’s become a crisis — rule by a shrinking minority of voters, grounded in the reality that our smallest states have disproportionate power in the Electoral College and the Senate.

The most immediate result is that we now have a Supreme Court with three members who were chosen by a president who lost the popular vote and confirmed by Republican senators who represented far fewer Americans than the Democrats who voted against them. If that’s not a crisis of legitimacy, I don’t know what is.

After I wrote that post, the feedback I got on Twitter was partly favorable, partly unfavorable. I think the most substantive criticism is that I’m being hypocritical — that I wouldn’t care if the situation were reversed. I’ll plead guilty to one small part of that argument: I’m thinking that the time may have come to trim the Supreme Court’s immense powers, and that’s something that didn’t bother me when it was issuing landmark decisions on reproductive rights and same-sex marriage. (Then again, more rights shouldn’t be controversial since no one is being forced to avail themselves of those rights.)

But for the larger point I was trying to make? No, no hypocrisy. And that’s because the situation we find ourselves in is unprecedented, at least not since the Gilded Age. I recall sitting in the green room a few weeks before Election Day in 2000, waiting to go on “Beat the Press,” when one of the other panelists, Tom Fiedler, started talking about the possibility that the popular-vote winner might lose in the Electoral College. Impossible, I replied. These things have a way of working themselves out. After all, it had been 112 years since Benjamin Harrison, a Republican, had been installed as president despite losing the popular vote to Democrat Grover Cleveland. It wasn’t going to happen again.

Well, we all know how the 2000 election unfolded. George W. Bush became  president thanks to the Electoral College, even though Al Gore won the popular vote. But that seemed like an outlier, and we were all far more riveted by the shenanigans in Florida than we were by the undemocratic nature of Bush’s victory. The belief that Bush stole Florida overshadowed the Electoral College issue.

What drove the Electoral College to the forefront, of course, was the 2016 election, which Hillary Clinton won by nearly 3 million votes. Thanks to the way the vote broke down geographically, Donald Trump won the Electoral College. In 2020, Joe Biden won by 7 million votes — a landslide by modern standards — yet still came uncomfortably close to losing in the Electoral College. It’s not at all inconceivable that the next Republican to win the Electoral College will also lose the popular vote by 8 million to 10 million people.

The Senate is, if anything, even less democratic. Tiny Wyoming (581,000 residents) gets two senators, who are virtually guaranteed of being Republican. California’s 39 million residents are also represented by just two senators, both Democrats. Yet at least in the post-New Deal era, the situation in the Senate was muddled enough that such geographic inequities didn’t really come into play. The Senate was Democratic for virtually all of that time, but the racist Southern Democrats really made the Senate a three-party body. Northern Democrats often worked with liberal and moderate Republicans (yes, there really were some). Coalition-building was possible. The filibuster was rarely used.

In today’s New York Times, Jamelle Bouie, whose writings on the Constitution and the state of democracy are indispensable, has this to say:

As for the constitutional crisis, it is arguably already here. Both the insurrection and the partisan lawmaking of the Supreme Court have thrown those counter-majoritarian features of the American system into sharp relief. They’ve raised hard questions about the strength and legitimacy of institutions that allow minority rule — and allow it to endure. It is a crisis when the fundamental rights of hundreds of millions of Americans are functionally overturned by an unelected tribunal whose pivotal members owe their seats to a president who won office through the mechanism of the Electoral College, having lost the majority of voters in both of his election campaigns.

Our current system favors geography over people and the interests of the minority over those of the majority. This has nothing to do with minority rights. A properly functioning liberal democracy is ruled by the majority with certain rights guaranteed so that government doesn’t deteriorate into a tyranny of the majority. Like, you know, not being forced to quarter troops in your home in peacetime. Or the right to a speedy and public trial. Or the right to exercise control over your own body, or marry the partner of your choosing.

I truly believe that when something can’t go on forever, then it won’t. At some point, the majority is going to rise up and demand change. Imagine what would happen if the next Republican presidential candidate loses the popular vote by 10 million yet wins the Electoral College with the help of dirty tricks in a few Republican states — dirty tricks that are being enshrined into law even as we speak. You can say that Democratic leaders won’t do anything, or won’t do enough. But you know what? It’s going to be taken out of their hands.

I wish you all a great Independence Day — and I look forward to a day when we can all reclaim our independence.