give an argument in favor of equal representation

Chapter 14: Establishing Equality in Voting and Representation

Baker v. Carr (1962) , Reynolds v. Sims (1964)

Representative democracy has deep roots in the United States. It is based on free, fair, competitive, and periodic elections by which citizens vote to choose their representatives in government. These representatives of the people—chosen by a majority, or a plurality, of the voters— serve the interests and needs of their constituents. When the people’s representatives make decisions and otherwise carry out their duties in the government, there is an expectation of accountability. If they do not satisfy the citizens they represent, then most voters are likely to cast their ballots for someone else or for another political party in the next election.

Given the centrality of the electoral process in a representative democracy, the right to vote is the citizen’s most precious political possession. By using the vote responsibly, citizens can contribute significantly to the achievement of good government.

But what if some votes count more than others? Can there be an authentic representative democracy if equal representation of constituents is not achieved through the electoral process? Can government be fair, if the interests of some groups of voters have more weight than those of less privileged groups in the decisions of their representatives?

Public concern about questions of equality in voting, and in the representation of voters, led to a series of notable cases at the Supreme Court. The first of these cases, Baker v. Carr in 1962, and the last, Reynolds v. Sims in 1964, yielded the pivotal decisions that established, once and for all, the fundamental democratic principle of “one person, one vote” also with regard to Congressional elections.

These Supreme Court decisions were made in response to unequal representation in state governments and disparate voting power of citizens residing in different places within the states. When each legislator represents an electoral district with approximately the same number of people, then the voting power of the people in all districts of the state is roughly equal. But this kind of equality in representation and voting power was nonexistent in most parts of the country. This inequity developed during the first half of the twentieth century when the distribution of the nation’s population changed.

Representation of voters in state governments throughout the United States became more and more unequal due to mass movements of people from rural to urban residences. During the 1920s, for the first time in American history, more people were living in cities than in rural areas, but in most states, the government had not changed the legislative districts to reflect this dramatic change. The result was disproportionate voting power for people living in underpopulated and overrepresented rural districts.

In 1960 nearly every state had some urban legislative districts with populations that were at least twice as large as those in the state’s rural districts. In Alabama, for example, the smallest congressional district had a population of 6,700 and the largest had a population of more than 104,000; nonetheless, each district had one congressional seat. In a representative democracy, people’s votes possess equal value only when each member of the legislative body represents approximately the same number of people.

Clearly, the people in more populous urban districts and the people in the less populous rural districts were not represented equally. Consequently, city and suburban problems did not receive appropriate attention in state legislatures that were dominated by representatives from districts with many farms and small towns. The powerful rural representatives refused to redistrict in order to ensure that each member of the legislature would represent roughly the same number of people. Some simply ignored the sections of their state constitutions requiring redistricting every ten years. Others merely redistricted and reapportioned representation in ways that continued to favor rural interests. There was little voters could do to change things through the electoral process, because apportionment of representatives heavily favored the rural areas, which stubbornly resisted reform.

Baker v. Carr

• 369 U.S. 186 (1962)
• Decided: March 26, 1962
• Opinion of the Court: William J. Brennan
• Concurring opinions: William O. Douglas, Tom Clark, and Potter Stewart
• Dissenting opinions: Felix Frankfurter and John Marshall Harlan II
• Not participating: Charles E. Whittaker

Disgruntled urban leaders turned to the legal process to seek equitable representation in government. Charles Baker, the mayor of Millington, Tennessee, a rapidly growing suburb of Memphis, and the leader of the legislative reapportionment movement in Tennessee, was extremely frustrated by the indifference of state legislators to problems in the rapidly growing cities of Tennessee. The state lawmakers routinely snubbed petitions for assistance from urban leaders such as Baker, because the cities of Tennessee were grossly underrepresented in the legislature. By contrast, the overrepresented rural voters got most of the attention and benefits from the state government, because they were the constituents of the vast majority of the legislators.

Approximately 11 percent of the state’s population lived in the rural areas of Tennessee, but more than 60 percent of the representatives in the state legislature were elected by voters residing in the rural areas. Because of this imbalance, the legislature neglected the problems and needs of urban voters. For example, the leader of the Tennessee House of Representatives said, “I believe in collecting the taxes where the money is—in the cities—and spending it where it’s needed—in the country.”

As state government officials were unwilling to reform the electoral system, Charles Baker turned to the federal courts for relief. In 1959, he brought suit against Joseph Cordell Carr, the Tennessee secretary of state, to force reapportionment of the legislature. But the federal district court dismissed the suit because of the legal precedent set in Colegrove v. Green (1946).

The Colegrove case involved reapportionment in Illinois, where population distribution in congressional districts was similar to the situation in Tennessee. However, the U.S. Supreme Court did not respond to this problem. Writing for the Court’s majority in Colegrove , Justice Felix Frankfurter dismissed the case for lack of jurisdiction, which means that the Court had no authority or legal right to consider this case. Frankfurter held that this case was not justiciable. That is, it was not an appropriate case for the Court to decide, because it posed political questions properly settled by the executive and legislative branches of government, whose leading members are elected by the people. He said, “It is hostile to a democratic system to involve the judiciary in the politics of the people.” He concluded with the admonition that the courts “ought not enter this political thicket.”

Charles Baker appealed the district court’s decision, and in 1962 his case went to the U.S. Supreme Court, which seemed interested in reconsidering the issues first presented to it by Colegrove in 1946. Only one of the Court’s majority in Colegrove , Justice Frankfurter, was still a member of the Court in 1962. But two of the dissenters, Justices Black and Douglas, remained and they influenced Chief Justice Warren and the other justices to side with them in accepting the Baker v. Carr case. Charles Rhyne, counsel for Charles Baker, argued that urban voters in Tennessee were denied the equal protection of the laws guaranteed by the Fourteenth Amendment. He requested that the state be ordered to redraw its legislative districts so that each person’s vote would be of equal weight. The Court, however, restricted its decision to questions of whether the Court should hear the case; that is to issues about jurisdiction, justiciability, and standing—a direct interest in the outcome of the case. Thus, the Court decided not to pass judgment on the merits of the complaint brought by the plaintiff about unequal and unfair representation of voters in the state legislature. Nonetheless, the Court’s decision in Baker overturned the precedent established in the 1946 Colegrove case, which was a significant breakthrough for the cause of electoral reform.

Justice William Brennan, writing for the majority, ruled that the Court had jurisdiction or authority to hear this case; he said that “the right [to equal apportionment of representation] is within the reach of judicial protection under the Fourteenth Amendment.” Brennan held that Baker and his associates had standing to bring this complaint to the Court; because as registered voters in an underrepresented urban area, they had an undeniable claim to injury based on unequal representation and thus a stake in the outcome of this case.

The most important part of Brennan’s ruling was that the issue in this case was not a political question and thus was justiciable, or appropriate for the judiciary to decide. He held that the issue in Baker v. Carr was not a political question because it had nothing to do with the principle of separation of powers among the three coordinate branches of government: “[W]e have no questions decided, or to be decided, by a political branch of government coequal with the Court.” Justice Brennan stressed that the issues in the case did not pertain to Article 4, Section 4 of the Constitution, the guaranty of a republican form of government. Questions involving this part of the Constitution were traditionally understood to be outside the Court’s authority. Justice Brennan wrote,

Of course, the mere fact that the suit seeks protection of a political right does not mean it presents a political question . . . Rather, it is argued that the apportionment cases . . . can involve no federal constitutional right except one resting on the guaranty of a republican form of government [Article 4, Section 4], and the complaints based on that clause have been held to present political questions which are nonjusticiable. We hold that the claim pleaded here neither rests upon nor implicates the guaranty Clause and that its justiciability is therefore not foreclosed by our decisions of cases involving that clause.

Brennan concluded “that the complaint’s allegations of a denial of equal protection [under the Fourteenth Amendment] present a justiciable constitutional cause.” Thus, Baker was entitled to a trial, and the case was remanded (sent back) to the federal district court, which now had the authority to make a substantive decision in this case. The court decided in favor of Baker.

Two justices, Felix Frankfurter and John Marshall Harlan II, dissented from the Supreme Court’s decision in Baker v. Carr . In his final opinion as an associate justice (a heart attack forced his retirement on August 28, 1962), Frankfurter lamented the overturning of precedent established in Colegrove v. Green , because he claimed the issue in Baker , as in Colegrove , was essentially political, and not judicial. Thus, he argued, the issue should be left to the executive and legislative branches to decide. Further, Frankfurter claimed that the Baker decision was a “massive repudiation of the experience of our whole past in asserting destructively novel judicial power.” He said it departed from a long tradition of judicial restraint that could be traced to the founding of the republic, whereby the exercise of judicial power was curtailed in order to avoid usurping authority belonging to the political branches of government.

Justice Harlan agreed strongly with Frankfurter, and he argued there was nothing in the U.S. Constitution that required state legislatures to be apportioned in order to equally represent each voter. Both dissenters asserted that the Court’s decision in this case was a product of unwarranted judicial activism, which intruded wrongly into the democratic political process.

The dissenters’ opinions, however, were overwhelmed not only within the Court but throughout the United States. Most major newspapers published favorable editorials about the Court’s decision, and public opinion generally seemed to support it. U.S. Attorney General Robert Kennedy spoke for the majority of Americans when he called this decision “a landmark in the development of representative government.”

Baker v. Carr was the first in a series of cases that led to legislative redistricting throughout the nation. The principle of “one person, one vote”—often associated with Baker —was actually expressed one year later by Justice Douglas in his opinion for the Court in Gray v. Sanders (1963). In this case, the Court ruled against a Georgia law that assigned greater electoral weight to sparsely populated rural counties than to heavily populated urban areas. In his argument against the Georgia electoral system, Douglas wrote, “The conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing—one person, one vote.”

Reynolds v. Sims

• 377 U.S. 533 (1964)
• Decided: June 15, 1964
• Opinion of the Court: Earl Warren
• Concurring opinions: Tom Clark and Potter Stewart
• Dissenting opinion: John Marshall Harlan II

The culminating case on equality in voting and representation was Reynolds v. Sims (1964), which originated in Alabama. Voters in Jefferson County, the state’s most densely populated county, which included the big city of Birmingham, claimed that the unequal representation of citizens in Alabama districts violated the equal protection clause of the Fourteenth Amendment.

The Supreme Court ruled in Reynolds that the Fourteenth Amendment requires states to establish equally populated electoral districts for both houses of state legislatures. Writing for the majority, Chief Justice Earl Warren stated that plans for setting up legislative districts could not discriminate against people on the basis of where they live (city versus country in this case) any more than they could discriminate on the basis of a person’s race or economic status.

The Court rejected the idea that state legislatures could create electoral districts differently for each of two houses of the state legislature—the representation in one house based on districts roughly equal in population and in the other house based on equal representation of areas regardless of population differences. Instead, Chief Justice Warren argued, the voters of a state must be treated equally by equal representation of electoral districts in both houses of the state legislature. “Legislators represent people, not trees or acres,” declared the Chief Justice. Warren pointed out that counties within a state were not the political equivalents of the states within the federal union of the United States. Thus, unlike the states, which have equal representation in the Senate regardless of differences in population, the counties within a state could not have equal representation, regardless of population differences, in either house of a state legislature.

The Court ruled that state legislatures did not have to draw legislative districts with “mathematical exactness or precision.” However, such districts did have to be based “substantially” on equal population. The Court thus reinforced a bedrock principle of electoral democracy: “one person, one vote.”

As he did in Baker v. Carr , two years before, Justice John Marshall Harlan II dissented against the Court’s ruling, holding firm in his belief that redistricting was an issue best left to the elected representatives of the people in the political branches of state governments. He claimed, as he had in 1962, that this case involved no violation of anyone’s constitutional rights.

The Court’s Reynolds decision was the end of a process initiated by Baker v. Carr in 1962 that transformed the electoral landscape of America by establishing that rural minorities throughout the United States could no longer control state legislatures. After this 1964 decision, forty-nine state legislatures reapportioned their legislative districts on the basis of equal population. (Oregon had already done so in 1961.) This decision also affected national politics because state legislatures draw the lines for the U.S. Congressional districts. This certainly was a great victory for urban voters throughout America. It was also a triumph for the very idea of democracy, which entails rule by the people based on the votes of the majority.

Reflecting on his illustrious career as chief justice of the United States, Earl Warren said these cases were landmarks “in the development of representative government.” Near the end of his life, Warren said the Court’s decisions in Baker v. Carr and Reynolds v. Sims —forever remembered as the “one person, one vote” cases—were the most important ones decided during his sixteen years as the chief justice, because they strengthened significantly the practice of democracy, government of the people, which is based on equality in voting and representation.

“The Right to Vote is the Greatest Civil Right”

After the Supreme Court decides to accept a case, a date and time for oral argument is set. Attorneys on both sides of the case speak before the assembled justices in the chamber, or courtroom, of the Supreme Court Building. It is a long-standing tradition for attorneys to begin their formal presentations with the phrase, “May it please the Court.” The justices typically interrupt an attorney’s presentation with questions or comments. In 1955, Chief Justice Earl Warren launched an oral history project—the audio recording of oral arguments in cases that come before the Supreme Court. Charles Rhyne’s oral argument in Baker v. Carr was recorded on April 19, 1961. Rhyne, representing Charles Baker, challenged the unequally apportioned voting districts in Tennessee and called for equality in voting for representatives in government.

Warren: Mr. Rhyne?

Rhyne: Chief Justice Warren, and may it please the Court.

This is a voting rights case. It’s brought here on appeal by eleven Tennessee voters who seek federal court protection to end flagrant discrimination against their right to vote. These eleven Tennessee voters live in five of the largest cities of Tennessee. They are the intended and actual victims of a statutory scheme which devalues, reduces, their right to vote to about one-twentieth of the value of the vote given to certain rural residents. Since the right to vote is the greatest civil right, the most fundamental civil right under our system of government, this system under the statute of Tennessee is as shocking as it is purposeful and successful . . .

The way in which these voting rights of the plaintiffs have been effectively denied—so effectively, we say, as to be effectively destroyed—is by a so-called reapportionment statute adopted in 1901. Now, the ultimate thrust of that statute today is that one-third of the qualified voters living in the rural areas of the state of Tennessee elect two-thirds of the state legislature. Now, that 1901 statute . . . violates the requirement of equality in the Fourteenth Amendment of the Constitution of the United States of America . . .

The Fourteenth Amendment strikes down discriminations whether they are sophisticated or simpleminded; and we think that, whether you cloak it under the terms of reapportionment or any other cloak, . . . that this is a discrimination which is clear from the facts in the complaint, and under these facts these voters have a constitutional right that is invaded and have standing to maintain this suit. Because a man’s right to vote is personal to him . . . And when these people have their right to vote invaded, diluted, rendered worthless or practically so by the 1901 act, it’s a personal wrong to them to have their vote so affected . . .

Court [identity of the justice is undetermined]: Do you claim that the Fourteenth Amendment requires that each person’s vote in the state be given equal weight?

Rhyne: Reasonable equality, reasonable equality.

Court:As a matter of . . .

Rhyne: Not mathematical equality.

Court: Not mathematical equality?

Rhyne: But reasonable equality. I think that that is the thrust of the equal protection of the laws requirement of the Fourteenth Amendment . . .

Frankfurter:Will you . . . tell us what the remedy is to be here, other than to declare this unconstitutional? . . .

Rhyne: Number one, there is a clear violation of a constitutional right. Number two, there is no reasonable basis for the voting discrimination which is laid out in the complaint, and the defendants offer no justifications for it, and they cannot offer it on these facts.

And, as I have just said, there is no other remedy. We’re at the end of the road. If this is a judicial no-man’s land, these people, the two-thirds of the voters of Tennessee, are consigned to be second-class citizens for the rest of their life, because these defendants exalt their position into an untouchable absolute.

Related Resources

• Video: One Person, One Vote: Baker v. Carr and Reynolds v. Sims
• Handout: One Person, One Vote: Baker v. Carr and Reynolds v. Sims

Table of Contents

Why Access to Voting is Key to Systemic Equality

Voting is a fundamental civil right and it shouldn’t be infringed upon, no matter your race or zip code. Although the Voting Rights Act of 1965 prohibits racially discriminatory voting tactics and policies, including diluting the voting strength of racial minorities, Black people and communities of color in particular continue to face numerous obstacles to voting.

Let’s break down why equal access to voting is critical to the fight for systemic equality.

Why is equal access to voting a civil rights issue?

Having fair and equal representation is the cornerstone of American democracy. Every citizen should have equal access to the ballot box to choose those representatives who will fight for the issues and policies they care about. Having equal access to voting is a civil right that is recognized and protected by the Constitution. The Constitution requires states to apportion their congressional, state, and local electoral districts according to the “one person, one vote” principle, and state legislatures have an obligation to ensure fair and equal representation for all people. These obligations uphold the Fourteenth Amendment’s guarantee of equal protection and comply with the requirements of the Voting Rights Act of 1965.

What is the Voting Rights Act of 1965?

In 1965, President Lyndon B. Johnson signed the Voting Rights Act (VRA) into law. The VRA was a monumental piece of legislation meant to end state and local voter suppression tactics designed to keep Black and Brown voters from casting ballots.

• The Voting Rights Act

Since 1965, the Voting Rights Act (VRA) has protected minority voters at the polls.

Source: American Civil Liberties Union

For decades, the Voting Rights Act successfully protected Black, Brown, Indigenous, and other marginalized voters — but 10 years ago, the Supreme Court in Shelby County v. Holder struck down its core “preclearance” requirement, which mandated that jurisdictions with long records of racially discriminatory voting practices seek federal approval before altering their voting laws and practices. On top of this, eight years after Shelby , the Supreme Court weakened another provision of the VRA — Section 2, a nationwide ban on voting practices that discriminate on the basis of race, color, or language — making court challenges to discriminatory tactics even harder.

What types of discriminatory voting practices have Black, Brown, and other marginalized voters continued to face at the polls?

In the years since the Shelby Supreme Court case, states have unleashed a torrent of voter suppression laws that disproportionately impact voters of color. These discriminatory anti-voter efforts continue today and include unnecessary photo ID laws, restraints on voter registration, voter purges, cuts to early voting and vote by mail, documentary proof of citizenship requirements, and polling place closures. Voters across the country continue to face arbitrary restrictions on absentee voting, bans on providing water to voters as they wait in hours-long lines, dropbox limitations, gerrymandering, and other restrictive policies that disproportionately burden marginalized communities.

What is redistricting? What is gerrymandering?

Every decade, states must redraw district lines at the federal, state, and local levels to balance population shifts. These lines influence who wins elections, which communities are represented, and whose votes can be influential. These district lines determine the electoral boundaries for representation in Congress, state legislatures, and in many county and municipal offices. This process is called redistricting.

The drawing of district lines can dictate not only who runs for public office and who is elected, but also how financial resources are allocated for schools, hospitals, roads and more. The representatives who are elected have the power to make decisions that greatly impact the communities they represent.

Sometimes, people talk about how redistricting can be used to “gerrymander” these electoral district lines. Gerrymandering is the practice of manipulating electoral boundaries to give an unfair political advantage to a particular political party or group. Legislators can gerrymander by cracking specific voters — spreading them thinly across multiple districts — or packing them into as few districts as possible. Those drawing the district lines can use gerrymandering to suppress the voting power of Black, Indigenous and other communities of color.

How are Black voters and other voters of color disproportionately impacted by redistricting efforts?

Communities of color have faced numerous obstacles to meaningful participation in the political process, including the redistricting process. The Voting Rights Act of 1965 prohibits the drawing of district lines that dilute the voting strength of communities of color in such a way that prevents them from participating in the political process on equal terms. However, the redistricting process in many states continues to result in district lines that crack and pack Black people and communities of color in ways that minimize their voting strength. As a result, they are not adequately represented in our democracy, perpetuating the systemic inequality many voters of colors already face.

Fifty-Seven Years After its Enactment, the Voting Rights Act is in Peril

On this anniversary of the VRA, the fight to secure the right to vote faces its greatest battles in over a generation.

Redistricting plans should fairly reflect the political strength of communities of color. As the Census data confirms, nearly all of the country’s growth over the past decade is attributable to the growth in our nation’s communities of color. Fair maps must adequately reflect that reality, and the right to vote should be equally accessible to everyone.

What is the John R. Lewis Voting Rights Advancement Act?

The John R. Lewis Voting Rights Advancement Act would restore and strengthen the landmark Voting Rights Act of 1965 to its full power after the Supreme Court eviscerated its core protections a decade ago. Since enactment, the Voting Rights Act of 1965 has been reauthorized and updated five times with large, bipartisan majorities. It is long past time for Congress to put voters first and return to this strong bipartisan tradition that protects every citizen’s right to vote and moves us closer to a democracy that works for all of us.

Had the Supreme Court not gutted the VRA, voters in states and localities with the worst history of voting discrimination would still be protected. These jurisdictions would have had to preclear changes to their voting laws or processes with the federal government, preventing discriminatory changes before they could be implemented and taint an election. The John R. Lewis Voting Rights Advancement Act would begin to root out racially-driven voting barriers. This legislation is vital to securing and preserving our fundamental right to vote without encountering racially discriminatory barriers.

What does the ACLU’s work in voting rights look like today?

Through litigation and advocacy, the ACLU is fighting back against attempts to curtail our right to vote and working to ensure the right to vote is equally accessible to everyone. As part of our ongoing work to ensure that legislatures accurately reflect their constituencies and to obtain more equal representation for Black voters, we’re advocating for fairer voting maps across six states in the South: Alabama , Arkansas , Georgia , Louisiana , Mississippi , and South Carolina . We are continuing to advocate for the passage of the John R. Lewis Voting Rights Advancement Act, which would help strengthen core voting rights protections for all. Additionally, we are fighting for the rights of disenfranchised citizens who live in Florida , Iowa, and Kentucky, states with extreme policies of disenfranchising people with certain felony convictions for life. These states are also among those that disproportionately suppress the voting rights of Black communities.

Florida’s Statewide Prosecution of Voting with a Past Conviction is Unlawful

The state’s confusing voter registration system sets people up to fail and further disenfranchises Black voters.

The ACLU will continue to fight to ensure the right to vote is equally accessible to everyone. But we can’t do it without you — become a Democracy Defender and join these fights with us.

Learn More About the Issues on This Page

• Voting Rights

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Federal Trial Challenging Florida Law that Targets Voter Registration, Civic Engagement, and Political Speech Begins

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League of Women Voters of Ohio v. LaRose

Callais v. Landry

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How the Great Compromise and the Electoral College Affect Politics

By: Amanda Onion

Updated: August 9, 2023 | Original: April 17, 2018

The Great Compromise was forged in a heated dispute during the 1787 Constitutional Convention: States with larger populations wanted congressional representation based on population, while smaller states demanded equal representation. To keep the convention from dissolving into chaos, the founding fathers came up with the Great Compromise. The agreement, which created today’s system of congressional representation, now influences everything from “pork barrel” legislation to the way votes are counted in the electoral college during presidential elections.

The debate almost destroyed the U.S. Constitution.

At the Constitutional Convention of 1787, delegates from larger states believed each state’s representation in the newly proposed Senate should be proportionate to population.

Smaller states with lower populations argued that such an arrangement would lead to an unfair dominance of larger states in the new nation’s government, and each state should have equal representation, regardless of population.

The disagreement over representation threatened to derail the ratification of the U.S. Constitution since delegates from both sides of the dispute vowed to reject the document if they didn’t get their way. The solution came in the form of a compromise proposed by statesmen Roger Sherman and Oliver Ellsworth of Connecticut.

The Great Compromise created two legislative bodies in Congress.

Also known as the Sherman Compromise or the Connecticut Compromise, the deal combined proposals from the Virginia (large state) plan and the New Jersey (small state) plan.

According to the Great Compromise, there would be two national legislatures in a bicameral Congress. Members of the House of Representatives would be allocated according to each state’s population and elected by the people.

In the second body—the Senate —each state would have two representatives regardless of the state’s size, and state legislatures would choose Senators. (In 1913, the 17th Amendment was passed, tweaking the Senate system so that Senators would be elected directly by the people.)

The plan was at first rejected, but then approved by a slim margin on July 23, 1787.

Smaller states have disproportionately more power in the Senate.

At the time of the convention, states’ populations varied, but not by nearly as much as they do today. As a result, one of the main lingering political effects of the Great Compromise is that states with smaller populations have a disproportionately bigger voice in the nation’s Congress.

As political scientist George Edwards III of Texas A&M University points out, California hosts about 68 times more people than Wyoming, yet they have the same number of votes in the Senate.

“The founders never imagined … the great differences in the population of states that exist today,” says Edwards. “If you happen to live in a low-population state you get a disproportionately bigger say in American government.”

The imbalance of proportionate power favoring smaller states in the Senate means that interests in those states, such as mining in West Virginia or hog farming in Iowa, are more likely to get attention—and money—from federal coffers.

“In the Senate when they’re trying to get to 51 votes to pass a bill, every vote counts,” says Todd Estes, a historian at Oakland University in Rochester, Michigan. “That’s when the smaller states can demand amendments and additions to bills to look out for their own state’s interest.”

The Great Compromise also skewed the electoral college.

The principle of protecting small states through equal representation in the Senate carries over into the electoral college, which elects the president since the number of electoral votes designated to each state is based on a state’s combined number of representatives in the House and Senate.

That means, for example, even though Wyoming only has three votes in the electoral college, with the smallest population of all the states, each elector represents a far smaller group of people than each of the 55 electoral votes in the most populous state of California.

The system ensures power is distributed geographically.

Some scholars see the small-state bias in the Senate as critical. The arrangement means that power in the Senate is distributed geographically, if not by population, ensuring that interests across the entire country are represented.

Gary L. Gregg II, a political scientist at the University of Louisville in Kentucky, argues in a 2012 article in Politico that major metropolitan areas already hold power by hosting major media, donor, academic and government centers. The structure of the Senate and the corresponding representation in the electoral college, he says, ensures that the interests of rural and small-town America are preserved.

Was that the intention of the Founding Fathers? Edwards is doubtful since, as he points out, the majority of Americans at the time of Constitutional Congress came from rural areas—not urban. “No one was thinking about protecting rural interests,” Edwards says. “Rural interests were dominant at the time.”

Whatever the viewpoint on the fairness of the Great Compromise’s distribution of delegates to the Senate, it is unlikely to ever change. This is because equal-state representation in the Senate is specifically protected in the Constitution.

According to Article V of the Constitution, no state can lose its equal representation in the Senate without the state’s permission. And no state is likely to willingly give up their say in the Senate.

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11.4: Congressional Representation

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Learning Objectives

By the end of this section, you will be able to:

• Explain the basics of representation
• Describe the extent to which Congress as a body represents the U.S. population
• Explain the concept of collective representation
• Describe the forces that influence congressional approval ratings

The tension between local and national politics described in the previous section is essentially a struggle between interpretations of representation. Representation is a complex concept. It can mean paying careful attention to the concerns of constituents, understanding that representatives must act as they see fit based on what they feel best for the constituency, or relying on the particular ethnic, racial, or gender diversity of those in office. In this section, we will explore three different models of representation and the concept of descriptive representation. We will look at the way members of Congress navigate the challenging terrain of representation as they serve, and all the many predictable and unpredictable consequences of the decisions they make.

Types of Representation: Looking out for Constituents

By definition and title, senators and House members are representatives. This means they are intended to be drawn from local populations around the country so they can speak for and make decisions for those local populations, their constituents, while serving in their respective legislative houses. That is, representation refers to an elected leader’s looking out for his or her constituents while carrying out the duties of the office. 26

Theoretically, the process of constituents voting regularly and reaching out to their representatives helps these congresspersons better represent them. It is considered a given by some in representative democracies that representatives will seldom ignore the wishes of constituents, especially on salient issues that directly affect the district or state. In reality, the job of representing in Congress is often quite complicated, and elected leaders do not always know where their constituents stand. Nor do constituents always agree on everything. Navigating their sometimes contradictory demands and balancing them with the demands of the party, powerful interest groups, ideological concerns, the legislative body, their own personal beliefs, and the country as a whole can be a complicated and frustrating process for representatives.

Traditionally, representatives have seen their role as that of a delegate, a trustee, or someone attempting to balance the two. A representative who sees him- or herself as a delegate believes he or she is empowered merely to enact the wishes of constituents. Delegates must employ some means to identify the views of their constituents and then vote accordingly. They are not permitted the liberty of employing their own reason and judgment while acting as representatives in Congress. This is the delegate model of representation.

In contrast, a representative who understands their role to be that of a trustee believes he or she is entrusted by the constituents with the power to use good judgment to make decisions on the constituents’ behalf. In the words of the eighteenth-century British philosopher Edmund Burke, who championed the trustee model of representation, “Parliament is not a congress of ambassadors from different and hostile interests . . . [it is rather] a deliberative assembly of one nation, with one interest, that of the whole.” 27 In the modern setting, trustee representatives will look to party consensus, party leadership, powerful interests, the member’s own personal views, and national trends to better identify the voting choices they should make.

Understandably, few if any representatives adhere strictly to one model or the other. Instead, most find themselves attempting to balance the important principles embedded in each. Political scientists call this the politico model of representation. In it, members of Congress act as either trustee or delegate based on rational political calculations about who is best served, the constituency or the nation.

For example, every representative, regardless of party or conservative versus liberal leanings, must remain firm in support of some ideologies and resistant to others. On the political right, an issue that demands support might be gun rights; on the left, it might be a woman’s right to an abortion. For votes related to such issues, representatives will likely pursue a delegate approach. For other issues, especially complex questions the public at large has little patience for, such as subtle economic reforms, representatives will tend to follow a trustee approach. This is not to say their decisions on these issues run contrary to public opinion. Rather, it merely means they are not acutely aware of or cannot adequately measure the extent to which their constituents support or reject the proposals at hand. It could also mean that the issue is not salient to their constituents. Congress works on hundreds of different issues each year, and constituents are likely not aware of the particulars of most of them.

Descriptive Representation in Congress

In some cases, representation can seem to have very little to do with the substantive issues representatives in Congress tend to debate. Instead, proper representation for some is rooted in the racial, ethnic, socioeconomic, gender, and sexual identity of the representatives themselves. This form of representation is called descriptive representation.

At one time, there was relatively little concern about descriptive representation in Congress. A major reason is that until well into the twentieth century, white men of European background constituted an overwhelming majority of the voting population. African Americans were routinely deprived of the opportunity to participate in democracy, and Hispanics and other minority groups were fairly insignificant in number and excluded by the states. While women in many western states could vote sooner, all women were not able to exercise their right to vote nationwide until passage of the Nineteenth Amendment in 1920, and they began to make up more than 5 percent of either chamber only in the 1990s.

Many advances in women’s rights have been the result of women’s greater engagement in politics and representation in the halls of government, especially since the founding of the National Organization for Women in 1966 and the National Women’s Political Caucus (NWPC) in 1971. The NWPC was formed by Bella Abzug (Figure 11.11), Gloria Steinem, Shirley Chisholm, and other leading feminists to encourage women’s participation in political parties, elect women to office, and raise money for their campaigns. For example, Patsy Mink (D-HI) (Figure 11.11), the first Asian American woman elected to Congress, was the coauthor of the Education Amendments Act of 1972, Title IX of which prohibits sex discrimination in education. Mink had been interested in fighting discrimination in education since her youth, when she opposed racial segregation in campus housing while a student at the University of Nebraska. She went to law school after being denied admission to medical school because of her gender. Like Mink, many other women sought and won political office, many with the help of the NWPC. Today, EMILY’s List, a PAC founded in 1985 to help elect pro-choice Democratic women to office, plays a major role in fundraising for female candidates. In the 2018 midterm elections, thirty-four women endorsed by EMILY's List won election to the U.S. House. 28 In 2020, the Republicans took a page from the Democrats' playbook when they made the recruitment and support of quality female candidates a priority and increased the number of Republican women in the House from thirteen to twenty-eight, including ten seats formerly held by Democrats. 29

In the wake of the Civil Rights Movement, African American representatives also began to enter Congress in increasing numbers. In 1971, to better represent their interests, these representatives founded the Congressional Black Caucus (CBC), an organization that grew out of a Democratic select committee formed in 1969. Founding members of the CBC include John Conyers (D-MI), currently the longest-serving member of the House of Representatives, Charles Rangel (D-NY), and Shirley Chisholm, a founder of the NWPC and the first African American woman to be elected to the House of Representatives (Figure 11.12).

In recent decades, Congress has become much more descriptively representative of the United States. The 117th Congress, which began in January 2021 had a historically large percentage of racial and ethnic minorities. African Americans made up the largest percentage, with sixty-two members (including two delegates and two people who would soon resign to serve in the executive branch), while Latinos accounted for fifty-four members (including two delegates and the Resident Commissioner of Puerto Rico), up from thirty just a decade before. 30 Yet, demographically speaking, Congress as a whole is still a long way from where the country is and is composed of largely White wealthy men. For example, although more than half the U.S. population is female, only 25 percent of Congress is. Congress is also overwhelmingly Christian (Figure 11.13).

Representing Constituents

Ethnic, racial, gender, or ideological identity aside, it is a representative’s actions in Congress that ultimately reflect his or her understanding of representation. Congress members’ most important function as lawmakers is writing, supporting, and passing bills. And as representatives of their constituents, they are charged with addressing those constituents’ interests. Historically, this job has included what some have affectionately called “bringing home the bacon” but what many (usually those outside the district in question) call pork-barrel politics. As a term and a practice, pork-barrel politics—federal spending on projects designed to benefit a particular district or set of constituents—has been around since the nineteenth century, when barrels of salt pork were both a sign of wealth and a system of reward. While pork-barrel politics are often deplored during election campaigns, and earmarks—funds appropriated for specific projects—are no longer permitted in Congress (see feature box below), legislative control of local appropriations nevertheless still exists. In more formal language, allocation , or the influencing of the national budget in ways that help the district or state, can mean securing funds for a specific district’s project like an airport, or getting tax breaks for certain types of agriculture or manufacturing.

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Language and Metaphor

The language and metaphors of war and violence are common in politics. Candidates routinely “smell blood in the water,” “battle for delegates,” go “head-to-head,” and “make heads roll.” But references to actual violence aren’t the only metaphorical devices commonly used in politics. Another is mentions of food. Powerful speakers frequently “throw red meat to the crowds”; careful politicians prefer to stick to “meat-and-potato issues”; and representatives are frequently encouraged by their constituents to “bring home the bacon.” And the way members of Congress typically “bring home the bacon” is often described with another agricultural metaphor, the “earmark.”

In ranching, an earmark is a small cut on the ear of a cow or other animal to denote ownership. Similarly, in Congress, an earmark is a mark in a bill that directs some of the bill’s funds to be spent on specific projects or for specific tax exemptions. Since the 1980s, the earmark has become a common vehicle for sending money to various projects around the country. Many a road, hospital, and airport can trace its origins back to a few skillfully drafted earmarks.

Relatively few people outside Congress had ever heard of the term before the 2008 presidential election, when Republican nominee Senator John McCain touted his career-long refusal to use the earmark as a testament to his commitment to reforming spending habits in Washington. 31 McCain’s criticism of the earmark as a form of corruption cast a shadow over a previously common legislative practice. As the country sank into recession and Congress tried to use spending bills to stimulate the economy, the public grew more acutely aware of its earmarking habits. Congresspersons then were eager to distance themselves from the practice. In fact, the use of earmarks to encourage Republicans to help pass health care reform actually made the bill less popular with the public.

In 2011, after Republicans took over the House, they outlawed earmarks. But with deadlocks and stalemates becoming more common, some quiet voices have begun asking for a return to the practice. They argue that Congress works because representatives can satisfy their responsibilities to their constituents by making deals. The earmarks are those deals. By taking them away, Congress has hampered its own ability to “bring home the bacon.”

Are earmarks a vital part of legislating or a corrupt practice that was rightly jettisoned? Pick a cause or industry, and investigate whether any earmarks ever favored it, or research the way earmarks have hurt or helped your state or district, and decide for yourself.

Follow-up activity: Find out where your congressional representative stands on the ban on earmarks and write to support or dissuade them.

Such budgetary allocations aren’t always looked upon favorably by constituents. Consider, for example, the passage of the ACA in 2010. The desire for comprehensive universal health care had been a driving position of the Democrats since at least the 1960s. During the 2008 campaign, that desire was so great among both Democrats and Republicans that both parties put forth plans. When the Democrats took control of Congress and the presidency in 2009, they quickly began putting together their plan. Soon, however, the politics grew complex, and the proposed plan became very contentious for the Republican Party.

Nevertheless, the desire to make good on a decades-old political promise compelled Democrats to do everything in their power to pass something. They offered sympathetic members of the Republican Party valuable budgetary concessions; they attempted to include allocations they hoped the opposition might feel compelled to support; and they drafted the bill in a purposely complex manner to avoid future challenges. These efforts, however, had the opposite effect. The Republican Party’s constituency interpreted the allocations as bribery and the bill as inherently flawed, and felt it should be scrapped entirely. The more Democrats dug in, the more frustrated the Republicans became (Figure 11.14).

The Republican opposition, which took control of the House during the 2010 midterm elections, promised constituents they would repeal the law. Their attempts were complicated, however, by the fact that Democrats still held the Senate and the presidency. Yet, the desire to represent the interests of their constituents compelled Republicans to use another tool at their disposal, the symbolic vote. During the 112th and 113th Congresses, Republicans voted more than sixty times to either repeal or severely limit the reach of the law. They understood these efforts had little to no chance of ever making it to the president’s desk. And if they did, he would certainly have vetoed them. But it was important for these representatives to demonstrate to their constituents that they understood their wishes and were willing to act on them.

Historically, representatives have been able to balance their role as members of a national legislative body with their role as representatives of a smaller community. The Obamacare fight, however, gave a boost to the growing concern that the power structure in Washington divides representatives from the needs of their constituency. 32 This has exerted pressure on representatives to the extent that some now pursue a more straightforward delegate approach to representation. Indeed, following the 2010 election, a handful of Republicans began living in their offices in Washington, convinced that by not establishing a residence in Washington, they would appear closer to their constituents at home. 33

Collective Representation and Congressional Approval

The concept of collective representation describes the relationship between Congress and the United States as a whole. That is, it considers whether the institution itself represents the American people, not just whether a particular member of Congress represents his or her district. Predictably, it is far more difficult for Congress to maintain a level of collective representation than it is for individual members of Congress to represent their own constituents. Not only is Congress a mixture of different ideologies, interests, and party affiliations, but the collective constituency of the United States has an even-greater level of diversity. Nor is it a solution to attempt to match the diversity of opinions and interests in the United States with those in Congress. Indeed, such an attempt would likely make it more difficult for Congress to maintain collective representation. Its rules and procedures require Congress to use flexibility, bargaining, and concessions. Yet, it is this flexibility and these concessions, which many now interpret as corruption, that tend to engender the high public disapproval ratings experienced by Congress.

After many years of deadlocks and bickering on Capitol Hill, the national perception of Congress has tended to run under 20 percent approval in recent years, with large majorities disapproving. Through mid-2021, the Congress, narrowly under Democratic control, was receiving higher approval ratings, above 30 percent. However, congressional approval still lags public approval of the presidency and Supreme Court by a considerable margin. In the two decades following the Watergate scandal in the early 1970s, the national approval rating of Congress hovered between 30 and 40 percent, then trended upward in the 1990s, before trending downward in the twenty-first century. 34

Yet, incumbent reelections have remained largely unaffected. The reason has to do with the remarkable ability of many in the United States to separate their distaste for Congress from their appreciation for their own representative. Paradoxically, this tendency to hate the group but love one’s own representative actually perpetuates the problem of poor congressional approval ratings. The reason is that it blunts voters’ natural desire to replace those in power who are earning such low approval ratings.

As decades of polling indicate, few events push congressional approval ratings above 50 percent. Indeed, when the ratings are graphed, the two noticeable peaks are at 57 percent in 1998 and 84 percent in 2001 (Figure 11.15). In 1998, according to Gallup polling, the rise in approval accompanied a similar rise in other mood measures, including President Bill Clinton’s approval ratings and general satisfaction with the state of the country and the economy. In 2001, approval spiked after the September 11 terrorist attacks and the Bush administration launched the "War on Terror," sending troops first to Afghanistan and later to Iraq. War has the power to bring majorities of voters to view their Congress and president in an overwhelmingly positive way. 35

Nevertheless, all things being equal, citizens tend to rate Congress more highly when things get done and more poorly when things do not get done. For example, during the first half of President Obama’s first term, Congress’s approval rating reached a relative high of about 40 percent. Both houses were dominated by members of the president’s own party, and many people were eager for Congress to take action to end the deep recession and begin to repair the economy. Millions were suffering economically, out of work, or losing their jobs, and the idea that Congress was busy passing large stimulus packages, working on finance reform, and grilling unpopular bank CEOs and financial titans appealed to many. Approval began to fade as the Republican Party slowed the wheels of Congress during the tumultuous debates over Obamacare and reached a low of 9 percent following the federal government shutdown in October 2013.

One of the events that began the approval rating’s downward trend was Congress’s divisive debate over national deficits. A deficit is what results when Congress spends more than it has available. It then conducts additional deficit spending by increasing the national debt. Many modern economists contend that during periods of economic decline, the nation should run deficits, because additional government spending has a stimulative effect that can help restart a sluggish economy. Despite this benefit, voters rarely appreciate deficits. They see Congress as spending wastefully during a time when they themselves are cutting costs to get by.

The disconnect between the common public perception of running a deficit and its legitimate policy goals is frequently exploited for political advantage. For example, while running for the presidency in 2008, Barack Obama slammed the deficit spending of the George W. Bush presidency, saying it was “unpatriotic.” This sentiment echoed complaints Democrats had been issuing for years as a weapon against President Bush’s policies. Following the election of President Obama and the Democratic takeover of the Senate, the concern over deficit spending shifted parties, with Republicans championing a spendthrift policy as a way of resisting Democratic policies.

Link to Learning

Find your representative at the U.S. House website and then explore their website and social media accounts to see whether the issues on which your representative spends time are the ones you think are most appropriate.

Pack the Union: A Proposal to Admit New States for the Purpose of Amending the Constitution to Ensure Equal Representation

• January 2020
• See full issue

For most of the twenty-first century, the world’s oldest surviving democracy has been led by a chief executive who received fewer votes than his opponent in an election for the position. 1 The first of these executives started a war based on false pretenses that killed hundreds of thousands of civilians. 2 The second — a serial abuser of women 3 who hired as his campaign manager a lobbyist for violent dictatorships 4 — authorized an immigration policy that forcibly separated migrant children from their families and indefinitely detained them in facilities described as “concentration camps.” 5

Democracy, as they say, is messy. 6

But even when democracy is messy, a society’s commitment to the endeavor rests on the belief that giving power to the people is appropriate and fair. 7 Recent events have highlighted some of the ways in which federal elections in the United States are profoundly undemocratic and, thus, profoundly unfair. 8 The Electoral College — when it contravenes the popular vote — is an obvious example of this unfairness. But it is just one of the mathematically undemocratic features in the Constitution. Equal representation of states in the Senate, for example, gives citizens of low-population states undue influence in Congress. Conversely, American citizens residing in U.S. territories have no meaningful representation in Congress or the Electoral College.

If we truly hold to be self-evident that all are created equal, 9 then it is time to amend the Constitution to ensure that all votes are treated equally. Just as it was unfair to exclude women and minorities from the franchise, so too is it unfair to weight votes differently. The 600,000 residents of Wyoming and the 40,000,000 residents of California 10 should not be represented by the same number of senators. Nor should some citizens get to vote for President, while others do not. Any rationalization of the status quo must adopt the famous Orwellian farce: “All animals are equal but some animals are more equal than others.” 11

These observations are not new, and they were noted well before the Constitution was ratified. During the Constitutional Convention, delegates from small states refused to accept a system of representation by population. 12 Likewise today, the faction that benefits from the unfair allocation of power has no interest in changing it. 13 Article V of the Constitution requires supermajorities to amend the Constitution, so pragmatists have been reduced to advocating meager solutions: perhaps Congress could admit Washington, D.C., as a state; maybe Puerto Rico too, if we’re really feeling ambitious. 14

While a step in the right direction, these proposals are inadequate. To create a system where every vote counts equally, the Constitution must be amended. To do this, Congress should pass legislation reducing the size of Washington, D.C., to an area encompassing only a few core federal buildings and then admit the rest of the District’s 127 neighborhoods 15 as states. These states — which could be added with a simple congressional majority — would add enough votes in Congress to ratify four amendments: (1) a transfer of the Senate’s power to a body that represents citizens equally; (2) an expansion of the House so that all citizens are represented in equal-sized districts; (3) a replacement of the Electoral College with a popular vote; and (4) a modification of the Constitution’s amendment process that would ensure future amendments are ratified by states representing most Americans.

Radical as this proposal may sound, it is no more radical than a nominally democratic system of government that gives citizens widely disproportionate voting power depending on where they live. The people should not tolerate a system that is manifestly unfair; they should instead fight fire with fire, and use the unfair provisions of the Constitution to create a better system.

This Note proceeds in three parts. Part I identifies the issue of unequal representation in the federal government. Part II explains the proposal to admit new states and pass new amendments. Part III addresses legal, historical, and political counterarguments.

I. The Problem of Unequal Representation

The problem of unequal representation is rooted in provisions of the Constitution that treat citizens living in different places differently. These provisions date to the Constitutional Convention, but in many respects, the present state of affairs does not reflect the Framers’ intentions. Developments since ratification call into question the inequality of the status quo, which has a substantial effect on public policy and is likely to get worse unless it is addressed.

1. The Senate . — In the Senate, each state is represented by two senators regardless of population. 16 As a result, the Senate is arguably the least democratic legislative chamber in any developed nation. 17 At the Constitutional Convention, the arguments in favor of representation by state were never particularly persuasive, but the voting structure of the Convention — where decisions had to be approved by a majority of states — ensured that small-state delegates got their way. 18

Gunning Bedford, a delegate from Delaware, warned that if representation were based on population, large states might “crush the small ones” in Congress. 19 But as James Madison noted, that risk is minimal, because large states do not inherently have anything in common that would bring them together for such purposes. 20 The only issue that would reliably divide small and large states is the very question of how to allocate power among them. 21

Luther Martin, of Maryland, also argued that because the federal government was a confederation of equally “sovereign and free” states, each should be considered an equal contracting party. 22 But again, this view is not especially compelling. As Pennsylvania delegate James Wilson wryly inquired: “Can we forget for whom we are forming a government? Is it for men , or for the imaginary beings called states?” 23 States do not have interests independent of the people who live in them, so equal numbers of people ought to be entitled to an equal number of representatives.

Moreover, while it was at least plausible at the time to argue that the federal government was a creature of sovereign states, today the federal government is intimately involved with individual lives in a way that would have been unimaginable to those in the Founding era. 24 If the federal government can levy personal income taxes, change the definition of marriage, and penalize the failure to purchase health insurance, 25 shouldn’t the people whose lives depend on those decisions be entitled to equal representation?

2. The House . — While more democratic than the Senate, the House of Representatives suffers from anti-democratic features as well. Most obviously, representatives are elected only by citizens of states, so the millions of American citizens living in the District of Columbia and U.S. territories are without meaningful representation in Congress. 26 And even among the states, House elections do not treat voters equally. Because each state is entitled to at least one representative, and because the size of the House is capped by statute at 435, 27 there are significant disparities between the powers of voters in each state. 28

Unlike the Senate, which has treated voters differently from the beginning, the House was supposed to continually grow so as to remain democratic and representative of the citizenry. 29 Both the seemingly permanent disenfranchisement of citizens in populous self-governing territories and the statutory cap on the size of the chamber are inconsistent with the Framers’ vision of a body reflecting the will of the people. 30

3. The Electoral College . — The Electoral College produces similarly undemocratic outcomes. More than ten percent of Presidents have been elected despite losing the popular vote, 31 in large part because the system presently operates in a manner inconceivable to its creators. 32

Like the debate over apportionment of the national legislature, deliberations over the method of electing the Executive pitted small and large states against each other. 33 The resulting compromise promoted two values: First, the use of electors would dilute populist influence, while ensuring that the President would not be unduly dependent on Congress. 34 Second, each state would receive a number of electors equal to the sum of its representatives plus its senators so that large states would not have an unfair advantage. 35

Since ratification, the premises underlying these compromises have almost completely eroded. 36 The electors no longer play a serious role in “diluting” populist influence because states immediately realized that the best way to maximize their influence on the election was to direct all of their electors to vote for the candidate that won their state. 37 This winner-take-all approach also substantially undercuts the protection for small states. 38 Although there remains, at least in theory, a modest “boost” for small states, the practical effect of winner-take-all laws is to focus a wildly disproportionate share of campaign resources on large battleground states, 39 because miniscule changes in the result of one large state can have a determinative effect on the entire election. 40

The public policy implications of unequal representation are substantial. Congress does not pass laws that people want, nor does it confirm the Supreme Court Justices people want. 41 Americans without representation are neglected by “their” government. Presidents are elected in spite of their popular support, not because of it. This is not how democracy is supposed to work. There may be something to be said for putting a check on the impulses of an electorate, but there is no good justification for nominally allocating power to the people, but distributing it on unequal terms.

1. Legislation . — It is common knowledge that the U.S. Congress does not pass legislation favored by most Americans. Wide majorities favor universal background checks for gun purchases, 42 more robust parental leave policies, 43 and raising taxes on the wealthy. 44 One common explanation for the disconnect between popular policy preferences and congressional inaction is the influence of money in politics. The wealthy have unrepresentative interests and disproportionate power. 45 Surely there is some truth to this explanation, but it does not tell the whole story. Another explanation is that the representatives themselves are not the representatives preferred by the public. 46

In the 2018 midterms, for example, Democratic congressional candidates won the House popular vote by the largest midterm margin of victory ever. 47 Republican candidates for Senate received a total of 38% of votes cast, while Democratic candidates received 58%. 48 And yet, Republicans not only retained a majority in the chamber, they actually increased it. 49 Given that only one-third of Senate seats are up in each election, it would make sense to see only modest changes in the overall composition of the body each cycle. But when the losing party in a wave election gains seats in the Senate, something is amiss.

2. The Supreme Court. — The problem of unequal representation affects more than legislation. For example, in February 2016, Justice Antonin Scalia died, leaving the Supreme Court divided between four Democratic appointees and four Republican appointees. 50 The Republican-controlled Senate refused to hold hearings for the Democratic President’s nominee, and the Senate majority leader announced that control of the Court was to be decided by “the American people.” 51 In November 2016, the American people spoke definitively: Democratic Senate candidates received 10 million more votes than Republican candidates, and 11 percentage points more of the total vote. 52 The Democratic presidential nominee similarly received nearly 3 million more votes than her opponent. 53 And yet, because of the unfair method of representation, Republicans retained control of the Senate and took over the White House. 54 In the ensuing Congress, two new conservative Justices were appointed to the Court despite the fact that senators representing a majority of Americans voted against both of them. 55

In fact, of the five sitting Justices appointed by Republican Presidents, all but one was appointed by a President who was elected despite losing the popular vote. 56 The policy consequences of these appointments — appointments that were only possible due to an unfair system of representation — are profound. Some of the biggest cases of the twenty-first century were decided by 5–4 votes split down party lines, 57 results that almost certainly would have been different if the United States had a fair method of representation.

None of this is to say the judiciary should be a rubber stamp on public opinion; perhaps its countermajoritarian function is essential. 58 But if the courts are to be subject to public control, their judges and Justices appointed and confirmed by representatives of the people, and their decisions binding on the entire nation, it makes little sense to give some citizens much more voting power than others.

3. U.S. Territories. — The problem of unequal representation is especially severe for citizens of U.S. territories. Such citizens pay payroll taxes but, with few exceptions, are not eligible for Supplemental Security Income. 59 Nor are the territories reimbursed for Medicaid at the same rate as states. 60 They also serve in the military at higher rates than the national average, and yet, per capita healthcare spending on veterans in the territories is much lower than the national average. 61

It also seems likely that territorial disenfranchisement plays a significant, albeit intangible role in the national psyche. Compare, for example, the federal government’s reactions to Hurricane Katrina and Hurricane Maria. When the former devastated New Orleans in 2005, there was substantial political fallout. Within weeks, the Republican-controlled House and Senate were holding hearings on the Bush Administration’s response, 62 which contributed to Democrats’ historic success in the 2006 midterm elections. 63 But in 2017, when Hurricane Maria killed 3,000 people in Puerto Rico, the political fallout was minimal. 64 There were no congressional reports, 65 and the Trump Administration’s response did not seem to weigh significantly in the next midterm election. 66 One obvious explanation is that Puerto Rico does not have representation in the federal government, while Louisiana does. There may be merit to a probationary period prior to statehood, but what justification could there be for indefinite second-class citizenship?

4. The President. — The practical effects of an Electoral College that contravenes the will of the people are perhaps self-evident but still worth mentioning. Whereas in the early republic, the President had more modest duties, the modern presidency has transformed into the most powerful office in the world. 67 In addition to signing or vetoing legislation and appointing key officers, the President has a powerful bully pulpit to influence world affairs, and a powerful pen for signing executive orders. 68 To the tune of trillions of dollars 69 and millions of lives, 70 Presidents have the power to shape history for better or worse. It makes little sense to allow an antiquated, unfair system of representation — a system that does not work as intended 71 — to determine who becomes President.

For two reasons, the problem of unequal representation is getting worse. First, increasing percentages of Americans reside in large states, which are disadvantaged in terms of federal representation. Second, political issues are pitting residents of small and large states against each other, such that the federal government is increasingly acting on behalf of a smaller percentage of citizens. These trends suggest that whatever window of opportunity to remedy the problem of unequal representation might exist, it is shrinking.

The American population is becoming increasingly centralized in a smaller number of states. In 1800, for example, the top 10% of states by population were home to approximately 27% of the population. 72 By 1900, that number was up to 34%, 73 and by 2016, it was up to 37%. 74 By 2040, it is estimated that 40% of the American population will be concentrated in just five states. 75 Half of the population will be represented by just sixteen senators, the other half by eighty-four. 76

Of course, states have never been equal in size, and as James Madison noted, small and large states do not necessarily have anything substantive in common. 77 The concentration of people in large states is not enough to necessarily skew public policy significantly. Increasingly, however, small and large states are divided in a manner that is qualitatively different than the past. 78 Perhaps urbanization is pitting the interests of the rural against the urban, 79 or the clustering of certain minority populations is exposing different regions to different socioeconomic factors. 80 Or perhaps it is a random coincidence. In any case, the trend is causing the federal government to act on behalf of a smaller percentage of the public.

For most of American history, it was relatively rare for a bill to pass the Senate without support from senators representing the majority of Americans. 81 Most votes passed with around two-thirds of the Senate in favor, with those senators representing two-thirds of the population. 82 But in 2017, for the first time ever, nearly half of the bills and nominations passing the Senate were supported by senators representing less than half of the population. 83 While this extraordinary arrangement may not be permanent, with the Republican party relying on white, rural voters 84 — typical residents in many of the smallest-population states — it is likely to repeat with increasing frequency.

II. Solution

For the same reason it is hard for a man to see where he placed his glasses, it is hard for a democracy to fix its political process. Problems embedded in the democratic process resist change because the problem itself is an obstacle to its solution. Washington, D.C., for example, wants statehood 85 but cannot vote on the matter because it isn’t a state. These challenges are even greater when the problems are in the Constitution itself, which requires supermajorities to amend.

Article V provides two mechanisms for amending the Constitution. Congress may propose an amendment with a two-thirds majority in each chamber, or two-thirds of the states may call for a constitutional convention and propose new amendments there. 86 In either case, three-fourths of the states must subsequently ratify any new amendments before they take effect. 87 These thresholds make it highly unlikely that the problem of unequal representation will be fixed through the normal amendment process.

Given these challenges, some might say that the problem of unequal representation is simply an intractable part of the U.S. political system — something impossible to fix, 88 or something to try to work around. 89 But surely those same things were said about other daunting inequities in voting rights, like the disenfranchisement of women and racial minorities. 90 By recognizing the fundamental unfairness of the present arrangement, the nation might become motivated to fix it, and perhaps, motivated enough to think creatively about solutions.

An “easier” way to amend the Constitution would be for Congress to admit a large number of new states whose congressional representatives would reliably ally with the existing majority in sufficient numbers to propose and ratify new amendments fixing the problem of unequal representation. Because Congress can admit new states with a simple majority, 91 this would provide a more attainable political threshold.

The first step in the process is the addition of new states. Although new states could theoretically come from anywhere, for a few reasons, the District of Columbia is an ideal location to enact this proposal. First, Washington, D.C., is not currently part of any state, so creation of new states there would not require action by or dismemberment of any presently existing state. 92 Second, every measurable subdivision of D.C. voted overwhelmingly for the Democratic party in the 2016 election, so the Democratic caucus in Congress could be confident that new states created within the District would elect like-minded delegations to Congress. 93 Third, the neighborhoods of D.C. provide a reasonable starting point for the new state boundaries; they are numerous enough to provide the votes necessary, but not so great that they would allow the new delegations to pass amendments or legislation on their own. 94

The actual admission of the new states would be relatively simple. First, it would be necessary to shrink the federal district to a small area encompassing only the National Mall and the essential federal buildings. This has already been done once, when in 1846 Congress shrank the district and gave land west of the Potomac River back to Virginia. 95 Only this time, the land would not be ceded; it would remain federal territory outside the federal district. Congress could then admit any number of new states by delineating their borders and providing for elections for new congressional delegations. 96 Once the new states are admitted, it will be easier to pass new amendments.

The new amendments would ensure that each vote cast in a federal election counts equally. To do this, three amendments would be necessary: (1) a transfer of the Senate’s duties to a fairly apportioned body; (2) an expansion of the House to ensure that all citizens are represented equally; and (3) a presidential election system by popular vote. A fourth amendment would modify Article V to ensure that this scheme could not be repeated.

1. Transfer the Senate’s Power. — An amendment to change the Senate would be the most complicated because of Article V’s Entrenchment Clause, which provides “that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” 97 But there is a straightforward solution.

The Senate’s duties could be changed without modifying its composition. 98 Imagine, for example, a system where the Senate resembles the House of Lords, the largely ceremonial upper chamber in the United Kingdom. The Senate could review legislation passed by the House but not prevent it from becoming law. Its formal powers would be transferred either to the House or to a new, equitably apportioned body. 99

The power to pass legislation, confirm appointments, ratify treaties, and try impeachments should belong to a body that represents citizens equally. The Senate might maintain oversight responsibilities and be a place where the unique concerns of state governments are communicated to Washington, but it should no longer play a determinative role in the federal government.

2. Expand the House to Include Territories and Replace the Cap of 435 Members with an Amendment Ensuring a Minimum Size. — An amendment to fix the House of Representatives would do two things. First, it would ensure that the body represents all Americans, not simply those who live in states. This could be done by treating each territory “as a state” for purposes of congressional representation and presidential elections. 100

Second, it would constitutionalize a minimum size for the House of Representatives, such that the representative-to-population ratio for House districts would be determined by the population of the smallest-population state. This “Wyoming Rule” 101 would ensure that small states do not receive undue influence in Congress by virtue of the Constitution’s guarantee of at least one representative per state. 102

3. Abolish the Electoral College in Favor of a Popular Vote. — A third amendment would abolish the Electoral College and create a system where the President and Vice President are elected by a pure popular vote. In the event that states are unable to conclusively certify election results, or the results of the election are otherwise disputed, the House of Representatives, voting as individuals, could determine the next President and Vice President.

4. Remove the Influence of States in the Amendment Process. — A fourth and final amendment would ensure that these changes could not be undone by an opposition Congress following the same playbook. The language in Article V that allows for two-thirds of the states to call a constitutional convention and that requires three-fourths of the states to ratify new amendments should be changed to ensure that those states actually represent a majority (or supermajority) of the total population. In other words, once a fair system of representation is established, the possibility that a small fraction of the population would once again control the federal government should be removed. 103

III. Objections

Objections to this proposal can be sorted into two buckets: those about the legality of the proposal, and those about its desirability even if it were possible. Both are addressed below. In terms of legality, objections about changes to both the District of Columbia and the Senate can be addressed and situated in American history. In terms of desirability, it can be shown that a system of fair and equal representation is compatible with the hallmarks of the American political system and that these values do not require treating some as second-class citizens.

1. District of Columbia. — Some have suggested that Washington, D.C., could not be admitted as a state without a constitutional amendment. 104 They suggest that Article I, Section 8’s exclusive grant of authority to Congress over the federal district precludes the creation of a new state there. 105 But this stretches the text of the Constitution considerably. Article I, Section 8 allows for the existence of a federal district up to “ten miles square,” but it does not require those specifications. 106 Indeed, Congress has already shrunk the size of the district once, ceding land back to Virginia in 1846. 107

Another argument is that because Maryland only ceded land to Congress for the purpose of creating a seat of government, the state would retain veto power over establishing any new state there, pursuant to Article IV, Section 3, which prevents new states from being made from parts of existing ones without the existing state’s consent. 108 Putting aside the fact that Maryland might give its blessing, the plain language and purpose of the original cession made clear that Maryland would have no future interest in the land it ceded to the federal government. 109 By shrinking — not removing — the federal district, Congress could create an area of federal territory outside the federal district, but not belonging to any state. Nothing would stop it from creating new states there.

2. Entrenchment Clause. — The more serious obstacle is the Entrenchment Clause in Article V, which prevents any state from being denied “equal Suffrage” in the Senate. 110 The outlined proposal offers a way around the Entrenchment Clause by retaining equal suffrage of states, but stripping the Senate of its power. It is admittedly a hyper-formalistic dodge. Should it be allowed?

If it is not, the provision is essentially unamendable. And that ought to be a concern. As Americans across the ages and across the political spectrum have long recognized, the promise of democracy is its ability to evolve. 111 To believe in unamendable or virtually unamendable provisions is to abandon the democratic experiment and submit to the tyranny of the dead hand.

An illustrative example from the lead-up to the Civil War demonstrates the folly of unamendable amendments. In 1861, a bipartisan group of congressmen sought to avert hostilities by proposing a constitutional amendment to permanently protect the institution of slavery from federal interference. 112 The so-called Corwin Amendment — which purported to be unamendable — passed both chambers of Congress with the requisite supermajority, though it was never ratified by enough states to become law. 113

Are we to believe that had the Corwin Amendment been ratified, slavery would still be permissible under federal law today? Surely the answer must be no. Either courts would have permitted the amendment itself to be changed, or we as a society would have tacitly acknowledged that sometimes the Constitution does not mean what it says. 114 By virtue of its odious subject matter, the Corwin Amendment makes clear what ought to be obvious: unamendable amendments are fundamentally incompatible with democracy. 115 Whether it is the institution of slavery, or the framework for the government, nothing in the Constitution should be unamendable.

Even beyond hypotheticals like the Corwin Amendment, American history is full of examples where the Constitution was dramatically changed via methods more legally dubious than those proposed here. The ratification of the Constitution itself was of doubtful legality, as was the ratification of its most important amendments. And statehood — which this Note proposes using as an overtly political tool — has often been used as such. Viewed in historical context, the proposed solution to the problem of unequal representation is much less radical than it seems 116 and, in reality, is in keeping with the nation’s history of constitutional evolution.

1. The Constitution. — Importantly, the Constitution itself was of dubious legality. Throughout the ratification process, Antifederalists raised persuasive arguments against the legitimacy of the Constitutional Convention. 117 For one, Congress had no authority under the Articles of Confederation to authorize the Convention, and once it started, the delegates immediately exceeded their mandate to amend them. 118 And while the Articles required unanimous assent for changes, the new Constitution allowed for adoption after ratification by only nine states. 119

At the Convention, the Framers immediately decided that even with extensive amendment, the Articles would be insufficient to constitute the United States, so they started from scratch, even though the Articles likely prohibited that course. 120 This is not to say the Constitution is illegitimate. On the contrary, it simply demonstrates that extraordinary exercises of political power are part of the bedrock of the nation’s history.

2. Reconstruction Amendments. — Similarly, the Reconstruction Amendments, adopted in the aftermath of the Civil War, were so controversial that public officials and academics continued to contest their legitimacy for decades. 121 In truth, the foundational amendments for much of modern civil rights law were passed under dubious circumstances. Southern states were denied representation in Congress when the Fourteenth Amendment was sent to the states, even though the Civil War had been over for years. 122 And the southern state ratifications needed to procure the Amendment’s passage were produced under significant federal coercion. 123

Congressional Republicans understood that left to their own devices, southern states would not ratify the Reconstruction Amendments, nor would they permit African Americans to exercise political equality. 124 So rather than admit defeat, Republicans created new Reconstruction state governments, concocted theories as to why southern states did not count toward the three-fourths requirement in Article V, and coerced southern legislatures into ratifying the amendments as a precondition to reentry. 125 In a sense, these were amendments passed by gimmick, important and worthwhile nonetheless.

3. Statehood. — It is also worth noting that the admittance of new states has often been overtly political, and at times legally dubious. West Virginia, for example, in “one of the great constitutional legal fictions of all time,” 126 was “allowed” to become a new state in 1861 by the Reformed Government of Virginia, a ragtag pro-Union faction of Virginia that scarcely had control of half of what is now West Virginia, let alone the entire state of Virginia. 127 President Lincoln acknowledged the dubious legality of West Virginia’s admittance in his signing statement, but made the political case for statehood as a war measure. 128

Just a few years later, days before the election of 1864, Republicans in Congress were worried about Lincoln’s reelection chances and short the votes necessary to pass the Thirteenth Amendment. 129 So notwithstanding the traditional population requirements for statehood, 130 they turned the territory of Nevada — population 6,857 131 — into a state, adding Republican votes to Congress and the Electoral College. For reference, the Columbia Heights neighborhood in Washington, D.C., currently has a population exceeding 30,000. 132

At the time they were admitted, these territories were not political entities on par with existing states; they were given that status by a Congress trying to accomplish unrelated political goals. And while the examples of West Virginia and Nevada are uniquely illustrative, they are not outliers: the history of American statehood is the history of political factions selectively admitting new states for political ends. 133

A proposal to admit a bevy of new states to amend the Constitution may sound radical, but in the context of American history, it would simply be a new chapter of a familiar story. On multiple occasions, the nation’s constitutional order has changed radically, through aggressive political action, in ways that find legitimacy not in clear-cut legality, but in a generation asserting the importance of a change and ratifying it through subsequent elections. 134 If Congress were determined enough to change the Constitution through the addition of new states, it would not be deterred by courts subject to congressional control. 135

Questions of constitutionality aside, there are also arguments that the status quo is preferable to alternative arrangements as a matter of policy. The Senate, it is said, protects states and provides a necessary countermajoritarian check. And the Electoral College ensures that presidential candidates have to appeal to all regions of the nation. The Framers had a vision that has endured for centuries, and it would be foolish to abandon it now. These arguments, addressed below, fail to persuasively make the case for a system of unequal representation. To the extent there are beneficial aspects of the status quo, they can be maintained in a fair system without perverting the idea of majority rule.

1. Senate. — The traditional argument for the Senate is that equal representation of states is necessary as a check on unfettered majority rule. Without the Senate, large states might gang up on smaller states, and the rights of a minority contingent would be trampled. 136

While there are compelling arguments for a majoritarian check, to the extent the Senate serves that function, it comes at too high a cost. 137 There are two fundamental tenets to a just democracy: (1) majority rule, and (2) protection of minority rights. 138 Defenses of the Senate appeal to the latter principle, but they pervert the former. It is one thing to require a supermajority for certain actions that would impose majority preferences on the minority — it is quite another to allow the opposite, that is, for a minority to actively impose new preferences on a majority. 139 But that is precisely what the Senate does, because in some contexts, like confirmations or treaty approvals, the majority may not get a chance to check back. 140

It is also said that the Senate safeguards the nation’s federal structure by giving states a voice in the federal government. But it is hard to see how giving citizens of some states more voting power relative to citizens in other states protects the idea of state sovereignty in the abstract. 141 If anything, the extra power afforded to small states would seem to incentivize their support for expansive federal expenditures. 142 Moreover, in choosing to adopt the Seventeenth Amendment, 143 the American people made clear that they want senators to represent people, not the institutional prerogatives of state governments. 144

If there is a compelling justification for giving citizens of small states extra power, it must be that they are systematically disadvantaged in some way and therefore entitled to it. Perhaps coastal cities have unfair economic advantages that allow them to increase in size and clout. 145 Or perhaps the universities and media outlets that cluster in urban areas are an unfair political advantage. 146 While it seems plausible that features of large population centers are advantageous, it does not follow that the structure of the federal government must combat them. If large states have more people, they should have more political power; surely equality of people is more important than equality of land.

2. Electoral College. — Defenses of the Electoral College are also unpersuasive. To its proponents, the system ensures that a President must appeal to many regions of the country. 147 For two reasons, this is a weak argument. First, why should appeal across regions be more important than appeal across people ? Regions, or states, do not have interests independent of the people who live there. As was said long ago, it is a government of people, not a government of states. 148

Second, the claim that the Electoral College demands cross-national appeal is simply not true as an empirical matter. During the last presidential election, many states did not receive a single postconvention visit from a candidate. 149 If every vote mattered, it would make sense to travel to many parts of the country, because there are votes to win everywhere. Texas, for example, has the largest population of rural voters in the nation, 150 but under the status quo, these voters are often neglected because the fate of Texas’s electoral votes has not been in question. Rather than forcing candidates to appeal broadly, the Electoral College focuses attention on a small number of battleground states, which inevitably tip the election one way or another.

Similarly, it is also said that the Electoral College prevents large cities and states from dominating the election. 151 This too is unconvincing. Although it was designed to give a small boost to small states, in practice, the winner-take-all system forces a disproportionate amount of attention on large battleground states. In fact, just a few decades ago, it was small states that petitioned the Supreme Court to strike down winner-take-all laws because they unfairly favor large states. 152 In the context of a national election, whether a candidate wins Miami by a 2:1 margin or a 2.1:1 margin should not be that important. But it is, as are margins in Philadelphia, Detroit, and other “big cities,” which have the highest concentration of voters in large battleground states. 153 In a fair electoral system, every vote would matter equally.

3. Framers’ Vision. — Considered in isolation, unequal methods of representation may not seem like a problem. The Senate alone has very little authority. It cannot pass legislation without the House, and it cannot confirm appointments unless the President has made one. A somewhat unfair element of government seems tolerable when it is just one part of a grand scheme. But as shown previously, the problem of unequal representation is embedded in each part of the government. Neither the House, the Senate, the presidency, nor the Supreme Court is accountable to the citizenry on a one-person, one-vote basis.

An appeal to the Framers’ vision glosses over the fact that most of these institutions are operating in a manner that the Framers never would have imagined. It also glosses over the reality that for all their political wisdom, the Framers — many of whom held human beings as slaves 154 — had views about voting rights that are fundamentally incompatible with modern democracy. 155 Just because something is in the Constitution doesn’t mean it can’t, or shouldn’t, be reevaluated.

And yet, despite the flaws of its drafters and the passage of centuries, the Constitution remains a document with brilliant features, among them separation of powers, checks and balances, and federalism. This proposal retains all of them; it simply asks that we reconsider some of the provisions that no longer serve our time. Just as it was unfair to deny representation based on race, sex, and wealth, it remains unfair to discriminate based on place of residence.

The best counterargument is simply that this proposal is a fraud — a contrived, pie-in-the-sky gimmick to make an end run around the Constitution — as foolish as it is unrealistic. How could we let a bunch of new, low-population states control the government?

But this is precisely what we allow today.

The current system of representation allows for a minority population to impose its will on a majority in a way that is deeply undemocratic. It permits the disenfranchisement of some citizens and the overrepresentation of others, and it allows a party receiving fewer votes than its opposition to control each branch of the government. It does not have to be this way.

If it was acceptable to remedy some of the Constitution’s original injustices by excluding states from the amendment process, perhaps it is worthwhile to address those remaining by creating new ones. Perhaps it is also worthwhile to dream big about what kind of change is possible. It should not be a radical proposition for the Constitution to treat citizens’ votes equally — the United States was founded on the proposition that all are created equal. 156 Those who still believe that should do what generations of great Americans have always done and take up the hard work of realizing that promise.

^ See Dennis W. Johnson, Campaigns and Elections 70 (2020).

^ See Rebecca Adelman & Sherifa Zuhur, Iraqi Freedom, Operation, Casualties Of , in The Iraq War Encyclopedia 199, 201 (Thomas R. Mockaitis ed., 2013); Gregory W. Morgan, Iraq, History of, 1990 to Present , in The Iraq War Encyclopedia , supra , at 184, 188; Tim J. Watts & Paul G. Pierpaoli, Jr., Bush, George Walker , in The Iraq War Encyclopedia , supra , at 72 , 75.

^ See Michael Barbaro & Megan Twohey, Crossing the Line: How Donald Trump Behaved with Women in Private , N.Y. Times (May 14, 2016), https://nyti.ms/24RqHYi [ https://perma.cc/7AM8-V74F ].

^ See Franklin Foer, Paul Manafort, American Hustler , The Atlantic (Mar. 2018), https://www.theatlantic.com/magazine/archive/2018/03/paul-manafort-american-hustler/550925 [ https://perma.cc/2DA7-2Y7E ] .

^ Isaac Chotiner, Inside a Texas Building Where the Government Is Holding Immigrant Children , New Yorker (June 22, 2019), https://www.newyorker.com/news/q-and-a/inside-a-texas-building-where-the-government-is-holding-immigrant-children [ https://perma.cc/4LT4-LGL7 ].

^ Cf. 444 Parl Deb HC (5th ser.) (1947) col. 203 (UK) (statement of Rt. Hon. Churchill) (“No one pretends that democracy is perfect or all-wise. Indeed, it has been said that democracy is the worst form of Government except all those other forms that have been tried . . . .”).

^ Sidney Verba, Fairness, Equality, and Democracy: Three Big Words , 73 Soc. Res. 499, 503 (2006).

^ See generally Ezra Klein & Mallory Brangan, Vox, The Roots of America’s Democracy Problem , YouTube (Nov. 20, 2018), https://youtu.be/0ySL82WbcvU [ https://perma.cc/9JWL-5R7W ].

^ See The Declaration of Independence  para. 2 (U.S. 1776).

^ QuickFacts , U.S. Census Bureau , https://www.census.gov/quickfacts/fact/table/CA,MT,WY/PST045218 [ https://perma.cc/98R8-3JCA ].

^ George Orwell, Animal Farm 112 (1946).

^ See Michael J. Klarman, The Framers’ Coup: The Making of the United States Constitution 199–201 (2016).

^ See Erin Corbett, Why Democrats Want to Abolish the Electoral College — and Republicans Want to Keep It , Fortune (Apr. 2, 2019), http://fortune.com/2019/04/02/abolish-the-electoral-college-votes [ https://perma.cc/WU4H-LT8Z ] .

^ E.g. , Ezra Klein, Democrats Need to Get Serious on Statehood for DC and Puerto Rico , Vox (Oct. 26, 2018, 10:10 AM), https://www.vox.com/policy-and-politics/2018/10/26/18024542/dc-puerto-rico-statehood-senate-democracy [ https://perma.cc/9JMF-WS97 ] .

^ See Jennifer Comey et al., Urban Inst., State of Washington, D.C.’s Neighborhoods 3 (2010) (identifying 127 neighborhoods).

^ U.S. Const . art. I, § 3, cl. 1.

^ See Adam Liptak, Smaller States Find Outsize Clout Growing in Senate , N.Y. Times (Mar. 11, 2013), https://nyti.ms/2kQU4hb [ https://perma.cc/Q4NU-8GUF ].

^ See Klarman , supra note 11, at 201.

^ Id. at 190; see also Fred Barbash, The Founding 69 (1987).

^ See Noah Feldman, The Three Lives of James Madison 137–38 (2017).

^ See id. at 141.

^ Klarman , supra note 12, at 188.

^ Id. at 185; see also Barbash, supra note 19, at 67 (“As [Madison] saw it, this was to be a government constituted by the people, not by states, and the people rather than the states should be represented.”).

^ See generally 1 Bruce Ackerman, We the People: Foundations 105 (1991) (describing the changes since the Founding that redefined the national government).

^ U.S. Const . amend. XVI; Obergefell v. Hodges, 135 S. Ct. 2584, 2607 (2015); Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 574 (2012).

^ Neil Weare, Equally American: Amending the Constitution to Provide Voting Rights in U.S. Territories and the District of Columbia , 46 Stetson L. Rev. 259, 260 (2017).

^ See Reapportionment Act of 1929, ch. 28, § 22, 46 Stat. 21, 26–27 (codified as amended at 2 U.S.C. § 2a (2018)).

^ Wyoming’s single House district, for example, covers a population of less than 600,000, while Montana’s is home to more than 1,000,000. See QuickFacts , U.S. Census Bureau , supra note 10.

^ See Christopher St. John Yates, A House of Our Own or a House We’ve Outgrown? An Argument for Increasing the Size of the House of Representatives , 25 Colum. J.L. & Soc. Problems 157, 175–79 (1992).

^ See The Federalist No. 55 , at 340–41 (James Madison) (Clinton Rossiter ed., 2003) (promising that the House would expand with the population); Weare, supra note 26, at 259, 262–63.

^ See Johnson , supra note 1, at 70.

^ For starters, the Framers seemed to think the Electoral College would rarely produce a winner, and that the House would typically select the next President. See Klarman , supra note 12, at 232, 369, 629.

^ See Note, Rethinking the Electoral College Debate: The Framers, Federalism, and One Person, One Vote , 114 Harv. L. Rev. 2526, 2528–29 (2001).

^ See Jeffrey St. John, Constitutional Journal 197–99 (1987); see also Klarman , supra note 12, at 228 (discussing the manners in which the people would be ignorant and inept at selecting the “chief magistrate”).

^ See Klarman , supra note 12, at 231; St. John , supra note 34, at 199.

^ See Akhil Reed Amar with Vikram David Amar, Electoral College History: Slavery, Sexism, and the South , FindLaw (Nov. 30, 2001), reprinted in Akhil Reed Amar, The Constitution Today 342, 346 (2016).

^ See William Josephson & Beverly J. Ross, Repairing the Electoral College , 22 J. Legis. 145, 154 (1996).

^ Note, supra note 33, at 2531 (“[T]he emergence of the . . . winner-take-all system for state selection of electors, which the Framers did not anticipate, has rendered the notion of any consistent small-state, regional, or federalist protection in the electoral college highly tenuous.” (footnotes omitted)).

^ See David Strömberg, How the Electoral College Influences Campaigns and Policy: The Probability of Being Florida , 98 Am. Econ. Rev. 769, 769 (2008).

^ See, e.g. , Ari Berman , Give Us the Ballot 207–14 (2015) (recalling the decisive Florida recount in the 2000 presidential election).

^ Compare Amber Phillips, A Majority Say Merrick Garland Should Be Confirmed. But That Means Less than You Think , Wash. Post (Mar. 21, 2016, 2:37 PM), https://wapo.st/1UJtQp7 [ https://perma.cc/5CUB-G7LT ], with Ariel Edwards-Levy, Brett Kavanaugh Is on Track to Be a Historically Unpopular Supreme Court Justice , HuffPost (Oct. 5, 2018 7:13 PM), https://www.huffpost.com/entry/brett-kavanaugh-unpopular-supreme-court-justice_n_5bb7c331e4b028e1fe3d9646 [ https://perma.cc/MW64-XVAJ ].

^ See Robert J. Spitzer, The Politics of Gun Control 125 (6th ed. 2015).

^ Claire Groden, An Overwhelming Majority of Americans Support Paid Parental Leave , Fortune (Apr. 15, 2016), https://fortune.com/2016/04/15/an-overwhelming-majority-of-americans-support-paid-parental-leave [ https://perma.cc/F9SG-XGG5 ].

^ Spencer Piston , Class Attitudes in America 57 (2018).

^ See Americans’ Views on Money in Politics , N.Y. Times (June 2, 2015), https://nyti.ms/2mfQXtT [ https://perma.cc/X4KH-HUMW ].

^ See John D. Griffin, Senate Apportionment as a Source of Political Inequality , 31 Leg. Stud. Quart. 405, 406 (2006). There are of course other potentially relevant factors, such as the non-uniform distribution of people with certain preferences, the propensity of certain people to vote, and the relative importance of an issue to a voter choosing between a limited number of candidates.

^ Jane C. Timm, Democrats Smash Watergate Record for House Popular Vote in Midterms , NBC News (Nov. 26, 2018, 11:24 AM), https://www.nbcnews.com/politics/elections/democrats-smash-watergate-record-house-popular-vote-midterms-n940116 [ https://perma.cc/G7FJ-WDLY ].

^ See Office of the Clerk, U.S. House of Representatives , Statistics of the Congressional Election from Official Sources for the Election of November 6, 2018 , at 57 (2019), https://history.house.gov/Institution/Election-Statistics/2018election [ https://perma.cc/TJ49-C7UG ].

^ Maureen Groppe, Republicans Make History by Growing Senate Majority While Losing House , USA Today (Nov. 7, 2018, 3:51 PM), https://www.usatoday.com/story/news/politics/elections/2018/11/06/election-day-2018-republicans-senate/1848366002 [ https://perma.cc/BE2P-44KX ].

^ David A. Kaplan , The Most Dangerous Branch 10 (2018).

^ Id. at 66.

^ See Office of the Clerk, U.S. House of Representatives , Statistics of the Presidential and Congressional Election from Official Sources for the Election of November 8, 2016 , at 83 (2017), https://history.house.gov/Institution/Election-Statistics/2016election [ https://perma.cc/N2MR-MHAK ].

^ Id. at 82.

^ Geoffrey Skelley, Straight Tickets for Senate, Split Tickets for Governor: The 2016 Senate and Gubernatorial Elections , in Larry J. Sabato et al ., Trumped 52, 56–57 (2017).

^ See Michael Tomasky, Opinion, The Supreme Court’s Legitimacy Crisis , N.Y. Times (Oct. 5, 2018), https://nyti.ms/2y40ZH9 [ https://perma.cc/8TZK-8FGS ].

^ See Greg Price, Brett Kavanaugh Will Be Fourth Supreme Court Justice Nominated by President Who Didn’t Win the Popular Vote , Newsweek (Oct. 6, 2018, 10:19 AM), https://www.newsweek.com/supreme-court-justices-president-popular-vote-1156542 [ https://perma.cc/P3U2-CTTZ ]. President George W. Bush appointed both of his Justices during his second term — after the 2004 election where he won both the popular and electoral vote — but had the popular vote winner of the 2000 election assumed the office, it seems doubtful that President Bush would have even been President at all.

^ See, e.g. , Trump v. Hawaii, 138 S. Ct. 2392, 2402, 2423 (2018) (upholding President Trump’s travel ban); Shelby County v. Holder, 133 S. Ct. 2612, 2617, 2631 (2013) (striking down portions of the Voting Rights Act); District of Columbia v. Heller, 554 U.S. 570, 572, 636 (2008) (guaranteeing a personal right to own a firearm); Gonzales v. Carhart, 550 U.S. 124, 130, 166–67 (2007) (upholding federal abortion restrictions).

^ See United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).

^ See Medicaid and CHIP Payment and Access Commission, Fact Sheet: Medicaid and CHIP in the Territories 1 (2019), https://www.macpac.gov/wp-content/uploads/2019/07/Medicaid-and-CHIP-in-the-Territories.pdf [ https://perma.cc/G8UW-VNGB ].

^ See, e.g. , Josh Hicks, Guam: A High Concentration of Veterans, but Rock-Bottom VA Funding , Wash. Post (Oct. 29, 2014), https://www.washingtonpost.com/news/federal-eye/wp/2014/10/29/guam-a-high-concentration-of-veterans-with-little-va-funding [ https://perma.cc/P36M-G5S4 ].

^ Danny Vinik, Trump Gets Pass from Congress on Puerto Rico Deaths , Politico (Sept. 16, 2018), https://www.politico.com/story/2018/09/16/maria-katrina-trump-bush-congress-hurricane-825870 [ https://perma.cc/LWF3-CYJZ ].

^ See Clerk of the House of Representatives , Statistics of the Congressional Election of November 7, 2006 , at 83 (Sept. 21, 2007), http://clerk.house.gov/member_info/electionInfo/2006election.pdf [ https://perma.cc/V8LQ-BG6G ].

^ See Vinik, supra note 62.

^ See Frank Newport, Top Issues for Voters: Healthcare, Economy, Immigration , Gallup (Nov. 2, 2018) (declining even to ask a hurricane-related question in the poll), https://news.gallup.com/poll/244367/top-issues-voters-healthcare-economy-immigration.aspx [ https://perma.cc/88BW-CMXZ ].

^ See Lewis L. Gould, The Modern American Presidency xiv (2d ed. 2009).

^ Benjamin Ginsberg, Presidential Government 102, 326–27 (2016).

^ Consequences of the Iraq War , in The Iraq War Encyclopedia , supra note 2, at xxii, xxiv.

^ See, e.g. , William Bundy, A Tangled Web 497–500 (1998) (linking President Richard M. Nixon’s foreign policy decisions to the Cambodian genocide).

^ Note, supra note 33, at 2531.

^ See Dept. of Commerce, U.S. Bureau of the Census , Population of States and Counties of the United States: 1790–1990 , at 4 (1996).

^ See id. at 2.

^ Philip Bump, By 2040, Two-Thirds of Americans Will Be Represented by 30 Percent of the Senate , Wash. Post (Nov. 28, 2017), http://www.washingtonpost.com/news/politics/wp/2017/11/28/by-2040-two-thirds-of-americans-will-be-represented-by-30-percent-of-the-senate [ https://perma.cc/DC4E-5VMR ].

^ See Jamelle Bouie, Opinion, The Senate Is as Much of a Problem as Trump , N.Y. Times (May 10, 2019), https://nyti.ms/2VwdXva [ https://perma.cc/PT5N-E5GA ].

^ See Feldman , supra note 20, at 137–38.

^ Ronald Brownstein, Small States Are Getting a Much Bigger Say in Who Gets on Supreme Court , CNN (July 10, 2018), https://edition.cnn.com/2018/07/10/politics/small-states-supreme-court/index.html [ https://perma.cc/MS38-3MDE ] (“[M]inority voters are more underrepresented in the Senate today than at any point since 1870.”).

^ See id. (“Smaller states, with very few exceptions, tend to rank lower in the share of their jobs that require a high level of digital skill . . . .”).

^ Id. (“The real rub could be the widening divergence between the large and small states, not only in their partisan leanings, but also in their exposure to the most powerful forces reshaping American life in the 21st century. Critically, the small states tend to be less touched than the large ones by the nation’s growing racial and religious diversity.”).

^ Joshua Tauberer, The Senate Has Never Been as Un-democratic as It Was in 2017–2018, and Minority Rule Could Continue in 2019 for Nominations , GovTrack (Dec. 30, 2018), https://govtrackinsider.com/the-senate-has-never-been-as-un-democratic-as-it-was-in-2017&ndash ;2018-and-minority-rule-could-801e1046af28 [ https://perma.cc/M56C-C6UF ].

^ Jacob S. Hacker & Paul Pierson, The Republican Devolution: Partisanship and the Decline of American Governance , 98 Foreign Aff ., July–Aug. 2019, at 42, 42.

^ See Washington D.C., Statehood Referendum (November 2016) , Ballotpedia , https://ballotpedia.org/Washington_D.C.,_Statehood_Referendum_(November_2016) [ https://perma.cc/2RMG-QCNE ].

^ U.S. Const . art. V.

^ See , e.g. , Noah Feldman, Revamping the Senate Is a Fantasy , Bloomberg (Oct. 10, 2018, 12:39 PM), https://www.bloomberg.com/opinion/articles/2018-10-10/u-s-senate-is-undemocratic-but-there-s-no-way-to-change-it [ https://perma.cc/7RBU-THX5 ].

^ See generally David Faris, It’s Time to Fight Dirty 16–17 (2018).

^ See, e.g. , Sally McMillen , Seneca Falls and the Origins of the Women’s Rights Movement 93 (2008) (“Henry, who had assisted Elizabeth [Stanton] with some of the legal issues, had expressed surprise at his wife’s insistence that women should demand the right to vote. ‘You will turn the proceedings into a farce,’ he warned her.”).

^ U.S. Const . art. IV, § 3, cl. 1.

^ Matthew Bloch et al., An Extremely Detailed Map of the 2016 Election , N.Y. Times (July 25, 2018), https://www.nytimes.com/interactive/2018/upshot/election-2016-voting-precinct-maps.html [ https://perma.cc/4JTW-5UNV ] .

^ The “right” number of states to add would depend on the size of the congressional majority willing to admit new states. Using figures from the last time Democrats had unified control of the federal government, and assuming a party-line vote, the minimum number of new states would be ninety-six.

^ Act of July 9, 1846, 9 Stat. 35.

^ The Washington, D.C. Admission Act, H.R. Res. 1291, 115th Cong. (2017), a proposed D.C. statehood bill, is an excellent model for the logistics.

^ See Douglas Linder, What in the Constitution Cannot Be Amended? , 23 Ariz. L. Rev. 717, 727 (1981) (arguing that “constitutional amendments reducing the powers of the Senate under article one (e.g., removing the Senate’s power to approve treaties) should be upheld,” but also arguing that such amendments should not be upheld if intended to reduce the influence of small states).

^ As a practical matter, since gutting the Senate essentially asks senators to vote themselves out of a job, it might be more palatable for them if a new legislative body were created contemporaneously. A second legislative chamber, at least in theory, also provides the benefits of bicameralism. See The Federalist No. 62 , at 374–78 (James Madison) (Clinton Rossiter ed., 2003) (describing potential benefits of the Senate, including protection from potential corruption in the House, helpful insulation from short-term political winds, and the development of experienced statesmen).

^ Cf. H.R.J. Res. 554, 95th Cong. (1978) (proposing, in an unratified constitutional amendment, congressional representation for D.C. without making it a state).

^ Steven L. Taylor, Representation in the House: The Wyoming Rule , Outside the Beltway (Dec. 14, 2010), https://www.outsidethebeltway.com/representation-in-the-house-the-wyoming-rule/ [ https://perma.cc/A2AQ-KH2H ].

^ Id. If territories had congressional representation, fairness would dictate basing the ratio off the lowest-population state or territory , though this would dramatically increase the size of the House.

^ After amending the Constitution to ensure the principle of equal representation, the new states would presumably be reconsolidated back into one. However, in the new federal government — one based on representation of people, not states — this would concern the rest of the country only to the extent it determined the size of the House.

^ R. Hewitt Pate, D.C. Statehood: Not Without a Constitutional Amendment , 461 Heritage Lectures 1, 1 (1993).

^ Id. at 3–4.

^ U.S. Const . art. I, § 8, cl. 17.

^ Peter Raven-Hansen, The Constitutionality of D.C. Statehood , 60 Geo. Wash. L. Rev. 160, 169–70 (1991).

^ See Pate, supra note 104, at 5.

^ Raven-Hansen, supra note 107, at 180.

^ E.g. , Neil Gorsuch with Jane Nitze & David Feder, A Republic, If You Can Keep It 28 (2019) (“In a government by the people, it is our responsibility as a people to ensure that our representatives enact wise laws. When we lose sight of that, we weaken the habit of self-government.”); Barack Obama, A More Perfect Union (Mar. 18, 2008) (“[A]merica can change. That is the true genius of this nation.”); George Washington, Farewell Address (Sept. 17, 1796), in 1 A Compilation of the Messages and Papers of the Presidents, 1789–1907 , at 213, 217 (James D. Richardson ed., 1908) (“The basis of our political systems is the right of the people to make and to alter their constitutions of government.”).

^ See Philip L. Martin, Illinois’ Ratification of the Corwin Amendment , 15 J. Pub. L. 187, 187 (1966).

^ Id. at 187, 190.

^ See generally David A. Strauss, The Supreme Court, 2014 Term — Foreword: Does the Constitution Mean What It Says? , 129 Harv. L. Rev. 1, 3 (2015) (answering the titular question in the negative).

^ See Linder, supra note 98, at 731.

^ Compare, for example, proposals of varying degrees of seriousness that could cement Democratic control without addressing the underlying unfairness of a system that treats citizens in different locations differently. E.g. , Faris , supra note 89, at 68–73 (breaking California into seven Democratic states); @Jmeiseles, Twitter (Aug. 11, 2019, 4:37 AM), https://twitter.com/Jmeiseles/status/1160470317170647040 [ https://perma.cc/4G62-KE43 ] (“I can’t wait for the Judiciary Act of 2021 to strip jurisdiction from any judge appointed by a president who lost the popular vote[.]”); @nycsouthpaw, Twitter (Sept. 14, 2018, 9:21 PM), https://twitter.com/nycsouthpaw/status/1040817861097414657 [ https://perma.cc/AJJ6-J2DA ] (“Dems should retake Congress and make 7 new states from the territories primarily to put a stamp on that Obama 57 states comment and also to, you know, reform the Senate.”).

^ Klarman , supra note 12, at 9.

^ See, e.g. , John Harrison, The Lawfulness of the Reconstruction Amendments , 68 U. Chi. L. Rev. 375, 379 (2001).

^ Id. at 376–77.

^ Thomas B. Colby, Originalism and the Ratification of the Fourteenth Amendment , 107 Nw. U. L. Rev. 1627, 1652–56 (2013).

^ Id. at 1644–52.

^ Harrison, supra note 121, at 379–80.

^ Vasan Kesavan & Michael Stokes Paulsen, Is West Virginia Unconstitutional? , 90 Calif. L. Rev. 291, 294 (2002).

^ Richard Orr Curry, A House Divided 8 (1964).

^ Abraham Lincoln, Opinion on Admission of West Virginia into the Union, in Abraham Lincoln: Speeches and Writings 1859–1865 , at 421, 421–23 (Don E. Fehrenbacher ed., 1989).

^ F. Lauriston Bullard, Abraham Lincoln and the Statehood of Nevada , 26 A.B.A. J. 313, 313 (1940).

^ An Act to Provide for the Government of the Territory North-West of the River Ohio, art. 5, ch. 8, 1 Stat. 50, 51 n.a (1789).

^ See Bureau of the Census Library, Population of the United States in 1860 , at iv (1864).

^ Population of Columbia Heights, Washington, District of Columbia (Neighborhood) , Statistical Atlas , https://statisticalatlas.com/neighborhood/District-of-Columbia/Washington/Columbia-Heights/Population [ https://perma.cc/3SUR-QLYR ].

^ See , e.g. , Ian Millhiser, The Forgotten History of How Abraham Lincoln Helped Rig the Senate for Republicans , ThinkProgress (May 5, 2019, 8:00 AM) , https://thinkprogress.org/how-abraham-lincoln-rigged-the-senate-for-republicans/ [ https://perma.cc/Y2ZR-7Z5B ].

^ See Ackerman , supra note 24, at 41–44 (1991) .

^ See Mark C. Miller, When Congress Attacks the Federal Courts , 56 Case W. Res. L. Rev. 1015, 1016–30 (2006) (highlighting ways a determined Congress can control — and at times has controlled — the courts).

^ Jeff Greenfield, Why Liberals Should Stop Whining About the Senate , Politico , (July 24, 2018), https://www.politico.com/magazine/story/2018/07/24/democrats-senate-constitution-219033 [ https://perma.cc/5CZL-BD3U ].

^ Akhil Reed Amar, Philadelphia Revisited: Amending the Constitution Outside Article V , 55 U. Chi. L. Rev. 1043, 1071 n.98 (1988) (“The malapportionment of the United States Senate is hardly trivial or outcome neutral . . . .”).

^ Barbara Thomas-Woolley & Edmond J. Keller, Majority Rule and Minority Rights: American Federalism and African Experience , 32 J. Mod. Afr. Stud. 411, 411 (1994).

^ Admittedly, the distinction is not always clear. The ability of a minority to prevent majority action could always be described as an imposition. But surely there is a meaningful distinction between allowing a minority to block some majority action, and allowing a minority to actively impose something new on an unwilling majority, which the present system regularly allows.

^ E.g. , Vik D. Amar, Note, The Senate and the Constitution , 97 Yale L.J. 1111, 1112–13 (1988).

^ See Amar, supra note 137, at 1071 n.98 (“True federalism is not served by equal representation — this simply favors some states at the expense of other states  . . . .”); see also Richard Primus, Federalism and the Senate , Take Care (Nov. 15, 2018), https://takecareblog.com/blog/federalism-and-the-senate [ https://perma.cc/N5XH-KH2D ].

^ See Liptak, supra note 17.

^ U.S. Const . amend. XVII (providing for direct election of senators).

^ Ralph A. Rossum, The Irony of Constitutional Democracy: Federalism, the Supreme Court, and the Seventeenth Amendment , 36 San Diego L. Rev. 671, 672 (1999).

^ See Kasparas Adomaitis, World’s Major Port Cities Are Growing Faster than Inland Cities , Euromonitor Int’l (May 31, 2014), https://blog.euromonitor.com/worlds-major-port-cities-are-growing-faster-than-inland-cities [ https://perma.cc/TVM5-35VU ].

^ Liptak, supra note 17.

^ See Ronald D. Rotunda, How the Electoral College Works  —  And Why It Works Well , Cato Inst . (Nov. 13, 2000), https://www.cato.org/publications/commentary/how-electoral-college-works-why-it-works-well [ https://perma.cc/VDK9-CD7G ] .

^ Klarman, supra note 12, at 185; see also Abraham Lincoln, Address at Gettysburg, Pennsylvania (Nov. 19, 1863), in Abraham Lincoln: Speeches and Writings 1859–1865 , supra note 128, at 536, 536 (reminding the nation that ours is a “government of the people, by the people, for the people”).

^ Two-Thirds of Presidential Campaign Is in Just 6 States , Nat’l Popular Vote , https://www.nationalpopularvote.com/campaign-events-2016 [ https://perma.cc/RF7S-JE8B ].

^ David K. Hamilton, Governing Metropolitan Areas 3 (2d ed. 2014).

^ Allen Guelzo & James Hulme, In Defense of the Electoral College , Wash. Post (Nov. 15, 2016), https://www.washingtonpost.com/posteverything/wp/2016/11/15/in-defense-of-the-electoral-college [ https://perma.cc/F44Y-84WP ] (suggesting that the Electoral College “prevent[s] big-city populations from dominating the election of a president”); see also Patrick Ruffini, @PatrickRuffini, Twitter (Oct. 21, 2018, 7:29 AM), https://twitter.com/PatrickRuffini/status/1054016910441021441 [ https://perma.cc/3XAS-49RT ] (“Someone winning the Presidency with supermajorities in large states like California and New York is exactly the scenario the Founding Fathers were looking to prevent when they instituted the Electoral College.”).

^ Order No. 28, Delaware v. New York, 385 U.S. 895 (1966); see also Ann Althouse, Electoral College Reform: Déjà Vu , 95 Nw. U. L. Rev. 993, 1000 (2001) (book review) (“As the small states recognized, it was the [winner-take-all] rule that enabled the large states to draw all the attention of the presidential candidates. One might think it would take some nerve to cite [the ‘one person, one vote’ principle] on behalf of the small states, upon which the Constitution bestows votes beyond proportion to their population; but this is exactly what Delaware and other states sought . . . .”).

^ Nick Corasaniti, Why Is Cory Booker Spending So Much Time in These 3 Cities? , N.Y. Times (Aug. 13. 2019), https://nyti.ms/2OUWwlf [ https://perma.cc/3876-XT66 ].

^ Annette Gordon-Reed, Engaging Jefferson: Blacks and the Founding Father , 57 Wm. & Mary Q. 171, 171–82 (2000).

^ See Albert Edward McKinley, The Suffrage Franchise in the Thirteen English Colonies in America 487 (1905) (estimating that, at most, only one-sixth of the population was eligible to vote at the Founding).

^ Cf. The Declaration of Independence  para. 2 (U.S. 1776).

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The Senate represents states, not people. That’s the problem.

States as states do need representation in the federal government. Under the Constitution, they have far too much.

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The confirmation of Brett Kavanaugh to the Supreme Court last week spurred a lively discussion about institutional design.

After the vote a week ago, some noted that the 50 senators who voted to confirm represent about 45 percent of the population.

A number of astute constitutional historians quickly spoke up to point out that of course that happens, because the Senate represents states and not people. If you want to see the people represented, look to the House.

But of course, the fact that the Constitution does something isn’t the same as that something being good. We continue to debate the Constitution itself , and specifically the disproportional Senate . If our intuition tells us that there’s something wrong when a minority has that much power, we should pay attention. The Senate’s equal representation of states — not people — should be discussed on its merits.

I don’t think it stands up.

The case for states

The United States is a federal system. Each state has its own sovereignty and has some authority over its own interests. The relative authority of the state and the national government is contested, but the states retain something.

But since the federal government is so powerful, the states need a way to protect themselves. The Framers’ approach to this sort problem is to let ambition check ambition. The legislature and the president check and balance each other. Similarly, the states are not protected from the federal government by mere parchment barriers. They can defend themselves through their representation in the Senate.

These concerns were central for the Framers, who were looking at the Constitution from the very state-centered perspective of the Articles of Confederation. Each state had its own government and identity, and their relationship to one another was weak. The Constitution aimed to make that relationship stronger, but states were still the players. An American was a citizen of their state first, and of the union second.

The case for people

We have come a long way since the founding. Political scientist Daniel J. Hopkins, in his new book, The Increasingly United States , traces how America has gone from “all politics is local” to a world in which national issues dominate even local conflicts.

Hopkins devotes an entire chapter to the question of whether people think of themselves as Americans or as citizens of their states. Across a wide range of measures, he shows that Americans see themselves as Americans first, citizens of their states second. As he puts it: “Compared to their attachment to the nation as a whole, their place-based attachment is markedly weaker. What is more, the content of state-level identities is typically divorced from politics.”

That finding doesn’t mesh well with the idea of people being represented in government through their states. And citizens, politicians and parties have all long realized that. Political strategies for all national offices involve coordination across geography. If you live in a deep red state, you can donate to a candidate running in a purple one. If your district is safe for the Democrats, you can travel to canvass for a candidate in a swing district.

It is illegal for foreign nationals to contribute money to a US electoral campaign. It is neither illegal nor uncommon for citizens to contribute to electoral campaigns in other states. Some candidates receive sizable portions of their resources from out of their own state.

When Americans are hacking the Constitution to get around the geographic nature of our representation, that should be a red flag.

Balancing the representation of states and people

Of course, the Constitution does not only allow for the representation of states. The central debate at the constitutional convention was over precisely this balance. Doesn’t the House address that problem?

Yes, but poorly.

For one, because every state must have at least one member in the House, there are still distortions. But even aside from that, single-member districts means we’re still representing territory instead of people. These districts are almost impossible to draw so that the politicians elected reflect the balance of preferences across the entire country.

Right now, that means a bias toward Republicans. Democratic candidates could outpoll Republicans by up to five points and still not be favored to take control of the House. It doesn’t matter whether this is due to conscious gerrymandering or because Democratic voters are concentrated in urban areas. The problem is single-member districts in the first place.

I don’t know of any research to prove it, but I am pretty sure very few Americans think of themselves as first and foremost citizens of their congressional district.

Even the president, for whom at least citizens across the country can vote, is elected through the Electoral College, which in turn filters votes through the states.

In short, the supposed balance between state interests and individual citizen interests that the Framers struck isn’t much balance at all. Some Framers observed exactly that at the time . And as the country has evolved, the value of having such strong representation for geography seems to have only waned.

What can be done?

If you agree that we should rethink the way in which we over-represent the states, what could be done? Unfortunately, not much.

One thing we can’t do is make the Senate more proportional. Nothing in the logic of federal representation would prevent this. In fact, other countries have upper chambers in legislatures that represent constituent states but that also represent them proportionally.

But we can’t do this, even with an amendment, because the only limit that Article V of the Constitution places on amendments is that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”

We could change the powers of the Senate. Why should a body whose unequal representation is justified by the need to protect federalism be so central in confirming Supreme Court justices, who rule on individual citizens’ rights? Why should it have a veto on any legislation that has nothing to do with states as states?

Around the world, most upper chambers are less powerful than the lower chambers that represent the people more directly. In the United Kingdom, the House of Lords can mostly only delay things that the House of Commons wants to do.

If the Senate is to be justified on the grounds that states need a say, its powers should be determined by that justification.

Such changes would be hard to do, and might not make enough difference. The other thing, then, would be to correct the imbalance in the House and the Electoral College . Multi-member districts could make the House more reflective of the popular vote.

If we’re serious about trying to bridge the divide between red and blue America, a good start would be to have all of America elect more of the legislature.

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Article I, Section 1:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Although the states generally favored a bicameral legislature, 1 Footnote 1 The Records of The Federal Convention of 1787 , at 54–55 (Max Farrand ed., 1911) . the states were heavily divided over the representation in each branch of Congress. 2 Footnote Id. at 509 ; Max Farrand , The Framing of the Constitution of the United States 92 (1913) . To resolve these concerns, the Convention delegates approved forming a “compromise committee” to devise a compromise among the proposed plans for Congress. 3 Footnote Farrand , Framing of the Constitution , supra note 2, at 97–98 . The committee proposed a plan that became known as the Great Compromise. 4 Footnote See generally id. at 91–112 (discussing the process that led to the Great Compromise). Roger Sherman and other delegates from Connecticut repeatedly advanced a legislative structure early in the Convention debates that eventually was proposed as the Great Compromise. See 1 The Records of The Federal Convention of 1787 , supra note 2, at 196 . Historians often credit Sherman and the Connecticut delegates as the architects of the Great Compromise. Mark David Hall , Roger Sherman and the Creation of the American Republic 96–98 (2013) (discussing Sherman’s proposal during the Convention debates that led to the “Connecticut Compromise” ); Farrand , Framing of the Constitution , supra note 2, at 106 . See also Wesberry v. Sanders, 376 U.S. 1, 12–13 (1964) (discussing Sherman’s role in the Great Compromise). The plan provided for a bicameral legislature with proportional representation based on a state’s population for one chamber and equal state representation in the other. 5 Footnote 1 The Records of The Federal Convention of 1787 , supra note 1, at 524 . See Farrand , Framing of the Constitution , supra note 2, at 104–07 . For the House of Representatives, the plan proposed that each state would have “one representative for every 40,000 inhabitants,” elected by the people. 6 Footnote 1 The Records of The Federal Convention of 1787 , supra note 1, at 526 . The compromise was amended to allow that state inhabitants would also include “three-fifths of the slaves” in the state. Id. at 603–06 ; Farrand , Framing of the Constitution , supra note 2, at 99 . For discussion of the “three-fifths” clause, see Intro.6.1 Continental Congress and Adoption of the Articles of Confederation. For the Senate, the committee proposed that each state would have an equal vote with members elected by the individual state legislatures. 7 Footnote 1 The Records of The Federal Convention of 1787 , supra note 1, at 160 . In 1913, the states ratified the Seventeenth amendment that requires members of the Senate to be elected by the people. After significant debate, the Convention adopted the Great Compromise on July 16, 1787. 8 Footnote Farrand , Framing of the Constitution , supra note 2, at 104–07 ; 1 Congressional Quarterly, Inc. , Guide to Congress 358, 367–68 (5th ed. 2000) (discussing of the ratification of the Seventeenth Amendment ).

During the state ratification debates that followed the Convention, one of the central objections from the Anti-Federalists was that the consolidation of government power in a national Congress could “destroy” state legislative power. 9 Footnote Gordon S. Wood , Creation of the American Republic 1776–1787 , at 526–530 (1969) (discussing state ratifications concerning the jurisdiction of federal and state legislatures under the Constitution). The Federalists attempted to curb these fears by noting that the sovereign power of the Nation resides in the people, and the Constitution merely “distribute[s] one portion of power” to the state and “another proportion to the government of the United States.” 10 Footnote Id. at 530 (quoting James Wilson from the Pennsylvania ratifying convention from Pennsylvania and the Federal Constitution 1787–1788 , at 302 (John Bach McMaster & Frederick D. Stone, eds. 2011) ). To further allay Anti-Federalist concerns regarding concentrated federal power in Congress, the Federalists emphasized that bicameralism, which lodged legislative power directly in the state governments through equal representation in the Senate, would serve to restrain, separate, and check federal power. 11 Footnote See id. at 559 (analyzing the Federalists’ views of bicameralism).

In vesting the legislative power in a bicameral Congress, the Framers of the Constitution purposefully divided and dispersed that power between two chambers—the House of Representatives with representation based on a state’s population and the Senate with equal state representation. 12 Footnote U.S. Const. art. I, § 7. cl. 2 . See The Federalist No. 39 (James Madison) ( “The house of representatives will derive its powers from the people of America, and the people will be represented in the same proportion, and on the same principle, as they are in the Legislature of a particular State. So far the Government is national not federal. The Senate on the other hand will derive its powers from the States, as political and co-equal societies; and these will be represented on the principle of equality in the Senate, as they now are in the existing Congress. So far the government is federal, not national.” ). The Framers recognized that the division of legislative power between two distinct chambers of elected members was needed “to protect liberty” and address the states’ fear of an imbalance of power in Congress. 13 Footnote See Immigration & Naturalization Serv. v. Chadha, 462 U.S. 919, 950 (1983) ( “[T]he Framers were . . . concerned, although not of one mind, over the apprehensions of the smaller states. Those states feared a commonality of interest among the larger states would work to their disadvantage; representatives of the larger states, on the other hand, were skeptical of a legislature that could pass laws favoring a minority of the people.” See also The Federalist No. 51 (James Madison) ( “In republican government, the legislative authority necessarily predominates. The remedy for this inconveniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit.” ); Farrand , Framing of the Constitution , supra note 2, at 99–112 (describing the debate among the states regarding the structure of Congress). As later explained by Chief Justice Warren Burger, “the Great Compromise, under which one House was viewed as representing the people and the other the states, allayed the fears of both the large and small states.” 14 Footnote Chadha , 462 U.S. at 950 . See also Farrand , Framing of the Constitution , supra note 2, at 105–06 (explaining the structure of Congress as achieved under the “Great Compromise” ).

By diffusing legislative power between two chambers of Congress in the legislative Vesting Clause, the Framers of the Constitution sought to promote the separation of powers, federalism, and individual rights. 15 Footnote See The Federalist No. 62 (James Madison) ( “[A] senate, as a second branch of the legislative assembly, distinct from, and dividing the power with, a first, must be in all cases a salutary check on the government. It doubles the security to the people, by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one would otherwise be sufficient.” ). See also John F. Manning , Textualism as a Nondelegation Doctrine , 97 Colum. L. Rev. 673 , 708–09 (1997) (describing how the legislative procedures “promote caution and deliberation; by mandating that each piece of legislation clear an intricate process involving distinct constitutional actors, bicameralism and presentment reduce the incidence of hasty and ill-considered legislation” ). They designed the bicameral Congress so that “legislative power would be exercised only after opportunity for full study and debate in separate settings.” 16 Footnote Chadha , 462 U.S. at 951 . While acknowledging that the bicameral legislative process often produces conflict, inefficiency, and “in some instances [can] be injurious as well as beneficial,” the Framers believed that the intricate law-making process promotes open discussion and safeguards against “against improper acts of legislation.” 17 Footnote The Federalist No. 62 (James Madison) . John F. Manning , Textualism as a Nondelegation Doctrine , 97 Colum. L. Rev. 673 , 709–10 (1997) (discussing the legislative process as protection against “hasty and ill-considered legislation” ). Some scholars have argued that the Framers deliberately designed the lawmaking process to be slow and inefficient so that the laws that passed were sufficiently deliberative, representative, and accountable. See, e.g. , Cynthia R. Farina , Statutory Interpretation and the Balance of Power in the Administrative State , 89 Colum. L. Rev. 452 , 524 (1989) ( “The Confederation period led [the Framers] to conclude that government which moved too quickly in establishing and altering policy was, over time, less likely to make wise choices and more likely to threaten individual liberty. Therefore, they deliberately created a lawmaking process that was slow, even cumbersome.” ). As the Supreme Court later explained, the “legislative steps outlined in Art. I are not empty formalities” but serve to “make certain that there is an opportunity for deliberation and debate.” 18 Footnote Chadha , 462 U.S. at 958 n.23 .

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• TeachableMoment

The Electoral College, the Senate & the Quest for Fair Representation

Does the U.S. political system live up to the principle of one person, one vote? In this lesson, students explore arguments about whether the Electoral College and the U.S. Senate might hinder the quest for fair, democratic representation. 

To the Teacher  

We are often told that American democracy is founded on the principle of equal representation: one person, one vote. In a democratic process, the majority is supposed to prevail. However, we have recently seen that some important American political institutions may be falling short of those ideals.

In two of the last five presidential elections, the victorious candidates received a smaller number of the votes than their leading opponent. By taking advantage of the Electoral College, a candidate can ascend into office without securing the popular vote. The Senate is another institution that raises questions of fair representation. Because each state gets two senators, regardless of the state's population, states with fewer people have their interests disproportionately represented in the Senate: Supreme Court Justice Brett Kavanaugh was confirmed with the votes of 51 senators, yet these senators, many of whom who hailed from less populated states, represented just 44 percent of the American public. Moreover, residents of Washington, DC (population 693,000) and U.S. citizens in Puerto Rico (some 3.3 million people) are not represented in the Senate.

This lesson looks into arguments about whether these two institutions might hinder the quest for fair, democratic representation. Reading one takes on the Electoral College. Reading two examines the Senate. Questions for discussion follow each reading.

Click here for a pdf version of the readings and questions.  

Reading One: Does the Electoral College Uphold Democracy?

In two of the last five presidential elections, the victorious candidate was able to win even though they received a smaller number of the votes than their leading opponent. By taking advantage of the Electoral College, a candidate can ascend into office without securing the popular vote.

So what is the Electoral College and why does it exist in the first place? In a February 11, 2008 article for FactCheck.org Joe Miller, a writer at the Annenberg Center for Public Policy, explained some of the background behind the institution. He wrote:

When U.S. citizens go to the polls to “elect” a president, they are in fact voting for a particular slate of electors. In every state but Maine and Nebraska , the candidate who wins the most votes (that is, a plurality) in the state receives all of the state’s electoral votes. The number of electors in each state is the sum of its U.S. senators and its U.S. representatives. (The District of Columbia has three electoral votes, which is the number of senators and representatives it would have if it were permitted representation in Congress.) The electors meet in their respective states 41 days after the popular election. There, they cast a ballot for president and a second for vice president. A candidate must receive a majority of electoral votes to be elected president. The reason that the Constitution calls for this extra layer, rather than just providing for the direct election of the president, is that most of the nation’s founders were actually rather afraid of democracy. James Madison worried about what he called “factions,” which he defined as groups of citizens who have a common interest in some proposal that would either violate the rights of other citizens or would harm the nation as a whole. Madison’s fear – which Alexis de Tocqueville later dubbed “the tyranny of the majority” – was that a faction could grow to encompass more than 50 percent of the population, at which point it could “sacrifice to its ruling passion or interest both the public good and the rights of other citizens.” Madison has a solution for tyranny of the majority: “A republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking.”…. The Electoral College was not the only Constitutional limitation on direct democracy, though we have discarded most of those limitations. Senators were initially to be appointed by state legislatures, and states were permitted to ban women from voting entirely. Slaves got an even worse deal, as a slave officially was counted as just three-fifths of a person. The 14th Amendment abolished the three-fifths rule and granted (male) former slaves the right to vote. The 17th Amendment made senators subject to direct election, and the 19th Amendment gave women the right to vote.  

But there is another, more troubling, story about the origins of the Electoral College. Akhil Reed Amar, who teaches constitutional law at Yale University, explained this more disturbing history in an article for Time magazine right after the 2016 election.

Standard civics-class accounts of the Electoral College rarely mention the real demon dooming direct national election in 1787 and 1803: slavery. At the Philadelphia [Constitutional] convention [of 1787], the visionary Pennsylvanian James Wilson proposed direct national election of the president. But the savvy Virginian James Madison responded that such a system would prove unacceptable to the South: “The right of suffrage was much more diffusive [i.e., extensive] in the Northern than the Southern States; and the latter could have no influence in the election on the score of Negroes.” In other words, in a direct election system, the North would outnumber the South, whose many slaves (more than half a million in all) of course could not vote. But the Electoral College—a prototype of which Madison proposed in this same speech—instead let each southern state count its slaves, albeit with a two-fifths discount, in computing its share of the overall count…. If the system’s pro-slavery tilt was not overwhelmingly obvious when the Constitution was ratified, it quickly became so. For 32 of the Constitution’s first 36 years, a white slaveholding Virginian occupied the presidency. Southerner Thomas Jefferson, for example, won the election of 1800-01 against Northerner John Adams in a race where the slavery-skew of the electoral college was the decisive margin of victory: without the extra electoral college votes generated by slavery, the mostly southern states that supported Jefferson would not have sufficed to give him a majority. As pointed observers remarked at the time, Thomas Jefferson metaphorically rode into the executive mansion on the backs of slaves.  

The Electoral College not only has a problematic history, it continues to create troubling outcomes. In the 2016 presidential election, Democratic nominee Hillary Clinton received nearly 3 million more popular votes than Republican Donald Trump, yet Trump won the Electoral College and thus the presidency.

What can be done to change the Electoral College? Advocates for directly electing the president would need a Constitutional amendment, which requires three-quarters of states to sign on. One alternative proposal is the National Popular Vote Interstate Compact, an agreement through which states would commit to give their electoral votes to the winner of the national popular vote, regardless of the outcome in their particular state. The compact would take effect when states whose total electoral college votes surpass 270 pass legislation in favor of it.

However, this effort has encountered opposition in Congress. In a January 21, 2018, article for PBS, reporter Kamala Kelkar described the effort to pass one such piece of legislation in Ohio:

Within months of Trump winning the presidential election in 2016, despite failing to capture the majority of votes, lawmakers such as [Ohio State Representative Emilia] Sykes in Ohio as well as Florida, Georgia, South Carolina, Texas and at least a dozen other states supported bills to transform the process. If enacted by enough states to influence the majority, they would agree to give all their electoral votes to the most popular presidential candidate, regardless of who wins their state. Ten states and Washington, D.C., have already agreed to join the compact. But in Ohio’s two-thirds Republican legislature, the effort languished and the impetus started to fade. Lawmakers in other states, too, abandoned their fights. Attempts to change the Electoral College system that were once seen as bipartisan fell victim to the same kind of divide that fueled this weekend’s federal government shutdown. “The idea was to pitch this as something that was of interest to Democrats and Republicans alike,” said Joshua Tucker, a professor of politics at New York University. “Now it’s seen as a way of undermining the Republican party.” A Gallup poll after the election showed that Republicans who favored a national popular vote dipped from 54 percent in 2011 to 19 percent in December 2016.  

While the popularity of abolishing the Electoral College may depend on the temperature of the political moment, eliminating the institution would allow for a more direct exercise of democratic will than the process currently in place.

For Discussion:

• How much of the material in this reading was new to you, and how much was already familiar? Do you have any questions about what you read?
• According to the reading, what are some reasons that the Electoral College was created?
• What might be some arguments for keeping the Electoral College? What are some arguments for eliminating it?
• Do you think an effort like the National Popular Vote Interstate Compact be successful in changing the Electoral College? Why or why not?
• One problem with the Electoral College is that most states appoint their electors entirely to one candidate. One alternative to eliminating the Electoral College would be for states to appoint their electors proportionally, as Maine and Nebraska already do. For example, under this system instead of California giving all of its 55 electors to the candidate who wins the majority in the state, it would divide its electoral votes proportionally in order to reflect the number of votes cast in favor of each candidate. What do you think of this possibility? What might be some arguments for or against states continuing to devote all of their electoral votes to one candidate?

Reading Two: Does the Senate Provide Fair Representation?  

The Senate is another institution that raises questions of fair representation. Under the  Constitution, each state gets two senators, regardless of the state's population.

This means that states with fewer people have their interests disproportionately represented in the Senate. For example, the 39 million residents of California have the same representation (two senators) as the 579,000 residents of Wyoming.

Recently, Supreme Court Justice Brett Kavanaugh was confirmed with the votes of 51 senators, yet these senators, many of whom who hailed from less populated states, represented just 44 percent of the American public. Moreover, residents of Washington, DC (population 693,000) and U.S. citizens in Puerto Rico (some 3.3 million people) are not represented in the Senate.

Why was the Senate designed in such a manner? The website for the U.S. Senate describes its own history like this:

During the summer of 1787, the delegates to the Constitutional Convention in Philadelphia established equal representation in the Senate and proportional representation in the House of Representatives. Called the “Great Compromise” or the “Connecticut Compromise,” the unique plan for congressional representation resolved the most controversial aspect of the drafting of the Constitution.  In the weeks before the Constitution’s framers agreed to the compromise, the delegates from the states with large populations argued that each state’s representation in the Senate should correspond to the size of the state…. Small-state delegates hoped to protect states’ rights within a confederate system of government. Fearing the effects of majority rule, they demanded equal representation in Congress, as was practiced under the Articles of Confederation and assumed in William Paterson’s New Jersey Plan . In fact, some framers threatened to withdraw from the convention if a proportional representation measure passed.  Other delegates sought a compromise between large-state and small-state interests.  As early as 1776, Connecticut’s Roger Sherman had suggested that Congress represent the people as well as the states. During the 1787 convention, Sherman proposed that House representation be based on the population, while in the Senate, the states would be equally represented.  

This compromise also sought to create a body that would move slowly and with more careful deliberation than the House of Representatives. Yet critics of the Senate have noted that, in creating a structure that would slow the process of change and thus preserve the social and political order, the Founders expressed a skepticism of unfettered democracy. In an article on April 6, 2017, entitled “The United States Senate is a failed institution,” ThinkProgress justice editor Ian Millhiser argued that, prior to the Civil War, the structure of the Senate ended up serving the interests slave-holding states. He wrote:

Not long after the Constitution was ratified, slaveholders discovered that they had a problem — most of the nation lived in free states. By the early 1820s, free states controlled 105 of the 187 seats in the House of Representatives — and that’s after you account for the fact that the Three-Fifths Compromise permitted slave states to count 60 percent of their enslaved and disenfranchised population when it came time to allocate seats in the House. If the House were the only game in town, in other words, it could conceivably have banned the slave trade — or at least taken fairly aggressive steps to hobble the South’s “peculiar institution.”... The reason why no new civil rights bill emerged from Congress until 1957 was the Senate. Though five such bills cleared the House in the 12 years following World War II alone, Senate malapportionment gave the southern senators far more influence over the legislative process than their states’ population could justify.  

The disproportionate power of Senators from less populated states continues to draw criticism today. In an October 16, 2018 piece for GQ Magazine, staff writer Jay Willis argues that the structure of the Senate creates a body that does not reflect the current demographics of the country:

The Senate's transformation into a funhouse-mirror version of the House is a quiet emergency for democracy, because its members are still allocated equally among states. And since there now are a greater number of sparsely-populated, mostly-white, right-leaning states than there are heavily-populated, racially-diverse, left-leaning states, the Senate acts to preserve power for people and groups who would otherwise have failed to earn it. A voter in Wyoming (population 579,000) enjoys roughly 70 times more influence in the Senate than a voter in California (population 39.5 million), which sounds like the most unfair statistic in American politics, until you remember that taxpaying U.S. citizens in Washington, D.C. and Puerto Rico still have no influence in the Senate at all…. In practice, the upper chamber now functions less often as a modest, ideologically-agnostic restraint on majority rule than it does as affirmative action for a particular party's agenda. As these demographic shifts continue and population disparities widen, on scales the Founders never could have imagined, the Senate's legitimacy will continue to evaporate.  

Because the Senate, like the Electoral College, is enshrined in the U.S. Constitution, changing the institution would be a politically difficult task. Nevertheless, if enough citizens become dissatisfied with the undemocratic aspects of the body, it may face a serious challenge.

For Discussion:  

• According to the article, what are some of the reasons the Senate created in the form that it was?
• What are some potentially positive or potentially negative effects that the Senate as it currently exists has on law-making and the democratic process?
• Part of the reason for the creation of the Senate was to increase the power and protect the well-being of smaller, less-popular states. Look up the population of your state and compare it to other states. Does your state gain power in the Senate relative to its population, or does it lose power? Does this affect how you think about Congress and your representatives in it?
• In the article from GQ Magazine quoted above, Jay Willis discusses the idea of abolishing the Senate and having a unicameral legislature—in other words, a Congress with just a House of Representatives. In order to maintain the idea that this single branch of Congress would act with caution and restraint, he suggests requiring that passing a bill through this House might require a supermajority of votes--for example, 60%. What do you think of these proposals? What might be some of the pros and cons?  

--Research assistance provided by John Bergen.

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Equal Representation? The Debate Over Gender Quotas (Part 1)

This article is the first in a two-part series examining the impact of gender quotas. The second article discusses the impact of quotas in Sweden and India.

Gender quotas exist in a shockingly high number of countries. More than 130 nations have modified their constitutions, electoral laws, or party rules to specify a threshold of women to be selected or nominated to a political body.

Quotas have had a massive impact globally on the number of women in politics, explaining the variation in women’s political representation by country. Between 1995 and 2012, many countries implemented quotas globally, and one study found a correlation between quotas and women’s political representation. Women’s political representation jumped from 11 percent to 21 percent during that time. Quotas are also associated with women being elected to government positions even more so than democratic ideals, economic development, or religious norms.

Implementing Quotas

Quotas may be implemented in three stages in the electoral process. Quotas may exist in the “aspiration stage,” the earliest stage in the electoral process, in which people are considered for nominations. This is most commonly done through voluntary party quotas , in which individual political parties specify the percentage of nominees that must be women. These quotas exist in nations such as the United Kingdom and Germany.

Quotas are also useful in the “ candidate stage ,” in which political parties decide who to place on their ballots. Constitutional and/or legislative decisions by the central government set legal candidate quotas . These rules regulate the composition of the ballot, mandating that a certain percentage of candidates be women. This works best in a proportional representation (PR) system in which political parties submit a list of candidates, and seats are allotted to parties based on the proportion of votes they win in an election. The parties then send the candidates on their list to serve in parliament, starting from the name at the top and only sending as many people as the popular vote apportioned. These quotas exist in countries such as Mexico and Indonesia.

Lastly, quotas may be used in the “ election stage ,” which is the final stage in the electoral process. Generally, the national government creates a constitutional and/or legislative rule that reserves a certain percentage of seats in the legislature for women. These quotas exist in countries such as China and Rwanda.

In truth, the effectiveness of these different types of quotas varies by nation . In a study of 167 countries from 1992 to 2012, researchers analyzed the effectiveness of different quotas in a variety of systems. Voluntary party quotas were more effective in developed countries. Yet, these quotas had a limited impact without a universal mandate across political parties.

According to the study, candidate quotas had the potential to be effective in all countries but only under three conditions . Quotas had to be accompanied by placement mandates ensuring that women were ranked in winnable positions in PR lists. For example, women could not be placed at the bottom of a list of 50 people when the party assumed they would only get about 10 seats. There had to be sanctions for noncompliance, such as fines or the nullification of a party list. The threshold for women also needed to be at least 30 percent. For example, France used to have a weak sanctions regime for non-compliance and no party mandates, which resulted in hardly any more women being elected to government. However, after a 2007 reform increasing financial penalties, the percentage of women elected to government doubled, though still not reaching parity as France continued to lack a placement mandate.

Finally, reserved seat quotas were only significant in the least developed countries, such as Rwanda, Uganda, and Tanzania. In fact, no developed countries had this type of quota system. The study defines developed and developing countries using the World Bank Index, which classifies countries based on their Gross National Income per capita. This addresses a country’s infrastructure and levels of industrialization compared to other nations. Developed countries are those with newer, more emerging economies compared to countries with well-established economies. Pressure from international organizations or a desire to gain legitimacy by quickly electing more women were two potential explanations for this trend. Additionally, the study hypothesizes that many developing countries have recently been in the process of redesigning their constitutions, and have thus easily been able to adjust their election methods to include quotas.

Overall, the role that quotas play in increasing the political representation of women is both complex and varied.

Improving Representation

The most obvious benefit of quotas is that they improve descriptive representation, meaning that the makeup of legislatures reflect population demographics. Many argue that descriptive representation is crucial for achieving broader gender equality. It works in a positive feedback loop: if more women are in office, then more women will be encouraged to run for office due to a role model effect in which they see people like themselves winning seats. If more women begin to run for office, then even more women will test the limits of what is possible for political representation.

In addition to the role model effect, advocates argue having more women in office is important for substantive representation. This includes representation on issues that are traditionally seen as gendered. Studies indicate that women report more concern about poverty and healthcare than men, while men prioritize national defense and military spending more than women.

Evidence of a contagion mechanism , or that parties in countries with quotas devote more attention to social justice issues in their manifestos than similar parties in countries without quotas, reinforces this gendered substantive representation. Even if the number of women elected does not greatly increase, the mere existence of a quota signals to party leaders that they should focus more on social justice issues.

Finally, quotas have been shown to improve the overall quality of politicians. One study of the Italian electoral or constitutional gender quota implemented in 1994 found that women were five percent more likely than men to have local government experience. Women also attended legislative sessions seven percent more than men elected to PR seats. Another study of Italy’s previous gender quota found that the level of education of politicians substantially increased after its implementation. One explanation suggests that the quota substituted low-educated men with high-educated women, increasing the average quality of politicians. Interestingly, the Italian Constitutional Court declared the quota law unconstitutional in 1995, meaning that no elections after 1994 could use a mandated quota system. This makes Italy a particularly useful case study because the country has comparison data from both before and after the quota.

Impairing Democracy

While quotas may improve important metrics of representation, they are nonetheless often seen as anti-democratic. Some argue that quotas elect people based on arbitrary population demographics instead of their merit. Rather than providing equality of opportunity, quotas bias elections in favor of women. Studies demonstrate that this is a common perception of gender quotas across different fields: they unfairly advantage certain groups, thereby harming others. For many, this anti-democratic sentiment is more important than any tangible benefits reaped through quotas, including substantive changes in policy-making.

Some articles argue that quotas manipulate voters’ choices . Instead of truly reflecting the political equilibrium, quotas artificially change the candidate pool. Therefore, voters decide between candidates who have been tailored to fit certain roles, restraining voters from making a completely free choice.

On top of this, some women’s rights activists claim that quotas are detrimental to women’s causes. Quotas imply that women cannot be elected on their own because they need governmental or political party preference to succeed in politics. This not only delegitimizes female candidates elected through the quota but also women elected without the help of quotas. These advocates also claim that quotas are disrespectful in their assumption that women cannot get seats on their own and must instead rely on quota requirements. These groups argue that as a result, women are less effective in their ability to govern because they are negatively labeled as “quota women.”

There are also concerns about how gender quotas affect the representation of other minorities. People worry that gender quotas push other minority groups out of politics since only women from the dominant classes tend to be elected. As a result, some people in society worry that every other minority group will also begin to demand quotas to improve their representation in government.

Finally, some evidence suggests that quotas are not that effective. In a set of quantitative models, one study found that quotas do not explain variation in the percentage of women elected to parliament in different countries. For the most part, studies find that quotas are only effective under a limited set of conditions that many countries are unwilling to implement. If quotas do not even help to elect women, then they create much controversy for very little gain.

Overall Impressions

Despite extensive research, it remains unclear the effect that quotas have on their own. Ultimately, there exists substantial variation from country to country in how quotas might work. This is why it is so essential to analyze quotas in the context of specific governments, rather than making a blanket statement about them.

Click here to read the second part of the article on quotas in Sweden and India.

Jaya is a senior editor and staff writer for the HIR. She is interested in environmental issues and international law. She is getting a joint concentration in Government and Philosophy.

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Handbook on Economics of Discrimination and Affirmative Action pp 1–18 Cite as

Gender Quotas and Representation in Politics

• Vidhu Verma 2  
• Living reference work entry
• First Online: 22 March 2023

64 Accesses

The controversy over affirmative action policies, quotas, or reservations for historical injustice constitutes the most salient current battlefront in the conflict over the status of social justice. No debate has been more protracted or more riddled with complex issues. This chapter addresses three themes about the significance of gender in implementing quotas: The first is gender quotas as a form of affirmative action that reverse discrimination and increase women’s participation in political democracy. The second relates to how female legislators become equal players in the policymaking process through gender quotas. The third is the challenges of intersectionality and the gradual withdrawal of the state from some of these policies. The chapter relies upon various significant findings regarding quotas and affirmative action by addressing these themes. It argues that to make this strategy successful, the context in which quotas are debated and implemented has to be explored. The review of research suggests that quotas for women are broadly effective at achieving political equality and opening new avenues for representation. However, political institutions are gendered; therefore, the adoption of gender quotas is linked to the implementation processes. Even while women have access to quota seats, informal norms dilute the impact of the implementation of gender quotas. Breaking through male-dominated institutions often requires the presence of laws attacking gender discrimination. A closer look at explanatory accounts suggest that it might be helpful to encourage women’s participation in many forms of associations and grassroots organizations that can impact their role in decision-making in politics.

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Verma, V. (2022). Gender Quotas and Representation in Politics. In: Deshpande, A. (eds) Handbook on Economics of Discrimination and Affirmative Action. Springer, Singapore. https://doi.org/10.1007/978-981-33-4016-9_43-1

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Act I: The Alternative Plans

Part One of a Constitutional Convention role-playing scheme for educators and secondary classrooms.

Scene 1: Laying Down the Rules

May 14, 1787 | constitutional convention lacks necessary quorum.

This second Monday in May was the day initiated by the Annapolis Convention and confirmed by the Confederation Congress as the start of the Constitutional Convention. Yet only four delegates from Virginia and four delegates from Pennsylvania were present.  The delegates “adjourned from day to day until Friday of the said month,” when the quorum requirement was met! 

The entire Virginia delegation was there within three days of the scheduled start of the Convention.  The delegates drafted the Virginia Plan and disseminated it to the arriving delegates over the next week.

Madison’s Notes for the day.

May 25, 1787 | Constitutional Convention meets quorum requirement

Convened and elected officers: Washington as President and William Jackson as Secretary. Chose committee (Wythe, Hamilton, and C. Pinckney) to prepare rules.

May 28, 1787 | Committee on Rules reports rules for Convention

Adopted 16 rules and additional suggested rules referred to the committee . The Convention, called to reconsider the efficacy of the Articles, began by adopting five voting rules of the Articles:

• A quorum required a majority of states
• Each state was allotted one vote
• The voting was to be by states and not by individuals
• Each state could send up to seven delegates
• Each state sets its own internal quorum requirements.

(The Convention, also without argument, accepted the “honorary” presence of Franklin as the eighth delegate from Pennsylvania.)

Scene 2: The 15 Resolutions of the Virginia Plan

May 29, 1787 | virginia plan introduced and defended by randolph.

The Committee on Rules reported and five additional rules, including secrecy, were adopted .

The secrecy rule specified that: “nothing spoken in the house be printed, or otherwise published or communicated without leave.”  Madison defended the rule in a letter to James Monroe: “it will secure the necessary freedom of discussion.”

Edmund Randolph submitted and defended a set of 15 Resolutions, known as the Virginia Plan. Randolph reminded the delegates that their “Mission” was to prevent “the fulfillment of the predictions of the American downfall.” The Convention agreed to meet the next day as a Committee of The Whole to consider the Resolutions.

[These resolutions set the terms for much of the debate during the first two acts of the Convention. To help you link the daily discussions to their origins in the resolutions of the Virginia Plan, we’ve inserted a left-hand column that gives the number of the resolution being discussed.]

Charles Pinckney also filed a plan.

Scene 3: First Discussion of the Virginia Plan

May 30, 1787 | resolution 1 amended and resolution 2 discussed..

Madison reports that Roger Sherman took his seat. The whole dynamic of the Convention would change as a result of his presence.

The Convention resolved itself into Committee of The Whole with Nathaniel Gorham in the Chair. Four votes were recorded with eight state delegations voting.

May 31, 1787 | Resolutions 3-6 discussed and 5a defeated

Four votes recorded. Ten states voted

June 1, 1787 | Debated and postponed Resolution 7 on the Presidency.

June 2, 1787 | further lengthy deliberation of resolution 7.

Confusing day on the Executive. Agreed to selection of Executive by Legislature. Agreed on seven-year term (8 – 2), and ineligible after one term (7 – 2 – 1). Dickinson’s motion that Executive be subject to impeachment defeated (9 – 1). Franklin argued that the Executive should receive no salary. Motion postponed.

June 4, 1787 | More deliberation of Resolution 7

Seven recorded votes. New Jersey absent.

June 5, 1787 | Consideration of Resolutions 9-15

Scene 4: madison-sherman exchange, june 6, 1787 | are people ‘more happy in small than large states’”, scene 5: second discussion of the virginia plan, june 7, 1787 | how to fill ‘the chasm’ created by defeat of resolution 5a, june 8, 1787 | resolution 6 and the negative on state laws, june 9, 1787 | reconsideration of resolution 7, scene 6: the 19 resolutions of the amended virginia plan, june 11, 1787 | popular representation in both branches.

G Morris absent today until June 30.

June 12, 1787 | The Specifics of Representation

June 13, 1787 | the 19 resolutions of the amended virginia plan continued.

Agreed to vote on Amended Virginia Plan with 19 Resolutions

Scene 7: The 9 Resolutions of the New Jersey Plan Discussed

June 14, 1787 | dickinson to madison: ‘you see the consequences of pushing things too far.’.

New Jersey requested postponement of Amended Virginia Plan to present an alternative plan. Patterson wanted to introduce a plan that was “purely federal.” A postponement was agreed to.

June 15, 1787 | New Jersey Plan introduced; Patterson submitted 9 Resolutions. 

The Plan restored the single chamber of the Articles of Confederation with each State represented equally regardless of population size.  The power to tax and regulate interstate commerce was added.  The other key features of the New Jersey Plan were: 1) the absence of popular representation, 2) a unicameral legislature, 3) equal representation of the States, and 4) the States retained as the central structural players.  New Jersey actually met their own internal quorum requirements on this day!

June 16, 1787 | The New Jersey Plan is ‘legal’ and ‘practical’

The New Jersey Plan was debated. It would increase the powers of Congress, but leave the federal structure of the Articles of Confederation  unaltered. Patterson : “Our object is not such a Government as may be best in itself, but such a one as our Constituents have authorized us to prepare, and as they will approve.” Wilson “conceived himself authorized to conclude nothing, but to be at liberty to propose anything.” Pinckney remarked that there was no principle involved: “Give New Jersey an equal vote,” and she “will dismiss her scruples.” Randolph : “When the salvation of the Republic was at stake, it would be treason to our trust, not to propose what we found necessary.”

Scene 8: The 11 Resolutions of Hamilton’s Plan Presented

June 18, 1787 | “neither the new jersey plan nor the virginia plan is adequate to secure ‘good government’”.

Hamilton argues that the Virginia Plan does not go far enough in enhancing the powers or altering the existing structure of the federal arrangement to secure “good government.” According to Hamilton , “we ought to go as far in order to attain stability and permanency, as republican principles will admit.”  He recommends 11 ways to create a strong central and republican government.  This is the first time that the word “vested” has been used to identify the location of political power.  Note Hamilton’s position on war powers.

Scene 9: Decision Day – Adoption of the Amended Virginia Plan

June 19, 1787 | new jersey plan rejected.

Defeated (6 – 4 – 1) Dickinson’s motion to defer consideration of the New Jersey Plan. Connecticut, New York, New Jersey, and Delaware voted “no.” Maryland divided. Heard Madison’s eight arguments against the New Jersey Plan. “The great difficulty lies in the affair of Representation; and if this could be adjusted, all others would be surmountable.”

Defeated the New Jersey Plan (7 – 3 – 1). Connecticut voted “yes!” New York, New Jersey, and Delaware voted “no.” Maryland divided.

Madison summarized Act I. The issue was “the great difficulty” of representation.  The coalition in favor of equal representation for the States “began now to produce serious anxiety for the result of the Convention.”

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