The Constitution isn't broken

Politics is hard

You can't read a newspaper these days without encountering laments that our constitutional system is broken. Some say it was broken all along, others that it busted recently. The Senate gives small states a stranglehold on legislation. The electoral college puts unpopular losers in the White House. The Supreme Court imposes its unelected will on the American people.

All this is true, up to a point. Yet two things are worth noting. First, most people complain about process in politics only when they don't get the policy outcome they want. Few today moan that Abraham Lincoln became president with forty percent of the popular vote, because most Americans, even in the South, appreciate what he did in office. Critics of the Supreme Court’s undemocratic decision-making on Dobbs were happy with it on Roe. 

Second, the fundamental cause of the gridlock people complain of isn’t a bottleneck in the system. It's the even balance between opposite sides on the most important arguments. Should taxes be higher or lower? Just about as many Americans are on one side as on the other. Should the government spend more on health care? About as many liberals say yes as conservatives say no. Should the United States risk a war with China over Taiwan? No clear majority on either side.

How about hot button issues like abortion and gun control? Post-Dobbs, abortion law is in the hands of elected officials. Laws vary by state. Texas has essentially outlawed abortion. California allows it with modest restrictions. This variance seems to reflect the divergent sentiments of voters in the two states.

Many people believe abortion is an issue too important to be left to voters and their representatives. Some of these people think abortion is murder. Others think it’s a woman's right.

Neither of these groups is going to be satisfied with anything short of their full demand. But the problem isn't with the process. It's with the irreconcilability of the opposing positions.

Gun control is different in that gun rights are guaranteed by the Constitution in an explicit way abortion rights are not. Changes in the make-up of the Supreme Court might enable changes at the margins of gun control. But probably nothing so dramatic as the change from Roe to Dobbs.

Here the process is indeed a hindrance to democratic governance. Most people seem to think semi-automatic weapons ought to be outlawed, but their numbers and influence aren't sufficient to repeal or amend the Second Amendment.

Yet there's a reason the Constitution is hard to amend. The raisin d’etre of the Bill of Rights is to protect minorities from simple majorities. During many, perhaps most, periods of American history, the First Amendment would have had a hard time getting ratified if put to a popular vote. Indeed if it hadn't been ratified in 1791, it might never have been ratified. Just seven years later, Congress approved the Alien and Sedition Acts, which were a patent violation of the First Amendment.

So, yes, some parts of our system are undemocratically sticky. It's a good thing they are.

But the rest of the system works pretty well. In only four of the fifty-nine presidential elections did the winner of the popular vote not win the electoral vote. And in these cases, had the rules guaranteed victory to the winner of the popular vote, the candidates would have campaigned differently. George W, Bush had a shrewd campaign team in 2000. He might well have picked up the half million votes necessary to beat Al Gore in the popular election.

All of this is to say that if you’re dissatisfied with the operation of our political system, don't put your hopes in changing the process. Eliminating the electoral college might have a temporary effect. If it disappeared tomorrow, Democrats might do better for an election or two. But Republicans and Democrats are balanced closely enough that the system would soon adjust and we'd be back to where we are now.

Fiddling with the Supreme Court, by expanding the number of justices or limiting the length of their terms, might tip the balance in a few cases for a while. But in the past the court has never been at odds with a clear majority of the people for long. Like the Bill of Rights, the court is designed to be a bulwark against democracy. Remove the bulwark and you'll rue the day you did.

When your team loses a close game, it's tempting to blame the refs. Wise coaches don't indulge, instead demanding that their players sharpen their games. 

The principle applies in politics. Don't blame the electoral college or the overrepresentation of small states in the Senate. Improve your arguments and win more votes. 

And don't despair of making progress. It's true that at any given time the opposite sides on any controversial issue are evenly balanced. But that statement is a tautology. It’s the even balance that makes issues controversial. Two centuries ago the idea that women in America should be able to vote wasn't controversial. It was almost universally held to be ludicrous. A little over a century ago, it had become controversial. Advocates of the Nineteenth Amendment had to work hard for ratification. Today it's not controversial at all. It's taken as obvious.

Similar things can be said about government pensions for old people, medical care for the poor and elderly, and equal rights for people of all races and sexual orientations. 

We're constantly stuck. We're evenly balanced between opposing positions. But the issues we are stuck on change over time. 

Why? Because one side, through persistence, persuades the other that it has the better argument. Or persuades enough of the other side to change the status quo, and this changed status quo polishes off the opposition. Women proved to vote much the way men did. Republicans learned to like Social Security. Medicare didn't transform America's medical profession into the British National Health Service. George Wallace repented of his race baiting. That gay couple across the street made good neighbors.

Does change come too slowly for you? If it does, that's because it comes too fast for somebody else. Not because the Constitution is broken.