As I have pointed out in another blog post, the US Constitution is rigged, designed to give the edge to some while disadvantaging others. Here are Michael Klarman’s comments about the Constitution that also demonstrate its rigging—biases that have been Framed into it.
Constitution Day lecture, Johns Hopkins University, Sept. 16, 2010
I have [two] points I want to make. . . . [Klarman’s original lecture contained four points.]
(1) The Framers’ constitution, to a large degree, represented values we should abhor or at least reject today.
(2) There are parts of the Constitution with which we are still stuck today even though we would never freely choose them and they are impossible to defend based on contemporary values. . . .
(1) The Framers’ constitution was not so admirable.
Most obviously, the Framers chose to protect slavery. I think it would be ahistorical to criticize them for doing so; I don’t think they had much choice if they wanted the South in the Union.
But, still, it’s hard to celebrate a Constitution that explicitly guaranteed the return of fugitive slaves to their masters, protected the international slave trade for 20 years, and enhanced the South’s national political representation to reflect its slaveholding.
Perhaps less obviously but equally importantly, the Framers’ constitution was mostly a conservative, aristocratic response to what they perceived as the excesses of democracy that were overrunning the states during the 1780s.
The Framers were trying to create a powerful national government that was as distant from popular control as possible: very long terms in office, large constituencies, indirect elections. They thought of democracy as rule by the mob. They didn’t think poor people could be trusted with the suffrage. They didn’t think women should vote.
A lot of what the original Constitution was about was constraining the power of the states to pass laws beneficial to debtor farmers in a time of economic distress and expanding the power of the national government to that it could efficiently raise taxes in order to pay off government bond holders, who often were merely speculators in such debt rather than initial suppliers of credit.
It seems to me difficult today to celebrate such intentions.
(2) Although I’m going to argue in my third point that the Constitution is mostly irrelevant to how we run our political system today, there are a few very specific parts of the Constitution that still bind us and are indefensible and indeed pretty ridiculous. Let me give you 3 examples.
(A) two senators for every state. This constitutional provision is a function of small states playing a good game of poker at the founding. Delegates from states like Delaware simply threatened to walk out of the Philadelphia convention if not given equal representation in the Senate. They claimed they were worried about the large states ganging up on them if not given equality in the Senate, but in fact they were just extorting what they could get by threatening to take their marbles and go home.
It is impossible, I think, to justify in a system that celebrates the idea of all people counting equally–the notion of one person, one vote–the fact that Wyoming has the same two votes in the Senate as California, when the latter has something like 65 or 70 times the population.
This is crazy.
This extreme malapportionment of the Senate also has real effects: Clarence Thomas would not be on the Supreme Court if the Senate were apportioned according to population. Democrats would have been able to get a more progressive health care bill through Congress if not for having to make concessions to some western senators who represent mostly cattle and trees.
And by the way, this provision is unamendable without the consent of every state, which I don’t see Wyoming volunteering anytime soon.
(B) Consider a second example of a constitutional stupidity: The Guvernator, Arnold Schwarzenegger, cannot be president of the United States because of the Constitution. Now you may be thinking that’s a good thing, and I’d probably agree with you. But it’s not a good thing that no foreign-born person can be president of the United States. That’s rank discrimination–especially abhorrent in a nation of immigrants.
It’s in the Constitution for reasons that have no applicability today. The Framers were worried that some foreign agent might ingratiate himself to the American people, be elected president, and then sacrifice the nation’s interests for a pot of foreign gold. I don’t think we’d lose a lot of sleep over that possibility today if this constitutional barrier were removed.
(C) My third example is the electoral college system of selecting the president, which has the same effect as the Senate in over-empowering states with tiny populations. It is also virtually impossible to defend today, was put into the Constitution by Framers who didn’t trust the People to elect the president, and yet we’re still stuck with it.
The US Constitution, as Professor Karman indicates, is rigged in numerous ways, as is every constitution, law, policy, institution–actually, everything! The goal should not be to try to find or make something that’s not rigged, that’s not biased. That can’t be done. The goal is to identify the rigging and deal with it.