The Biggest Political Problem

In twenty years, 75% of the US population will live in only 15 states.

And that, sobering as it may be for real-estate, manufacturing, or our culture, is particularly terrifying with regards to our political system. By 2040 those 15 states will have 30 Senators – and 30% of this nation will have 70% of the Senators.

So if you think Mitch McConnell is a master obstructionist, just wait and think what tomorrow will bring…

The Senate is a particularly difficult knot to untangle, thanks to a particularly stupid aspect of our Constitution: Article 5. 

The brilliance of a nation founded in law is that our Constitution can be amended, with the founders recognizing that there was no way their document could be the final word in a changing world. Yet Article 5 has become a ticking time bomb, with no fuse or wires to cut to disarm it, with regards to those scary population projections in the next twenty years. The text of Article 5 states:

“…and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”

In other words, unless Wyoming agrees to it, they get to have two Senators, despite a state population that is less than that of San Francisco (and 30 other cities, ranging from Indianapolis to Louisville). This section, Article 5, is the only part of the Constitution which cannot be amended.

And in the next two decades that’s going to be a staggering problem. 1/3 of the nation will be able to determine the legislative agenda of the United States over the protests of the other 2/3. Or at least stymie it. A great example of this growing disparity came up recently, actually, with Brett Kavanaugh’s confirmation process in the Senate. The 11 Senators on the Judiciary Committee who voted for Kavanaugh – combined – represent 65 million people. The other ten Senators? The Democrats? They represented the will of nearly 10 million more people than the 'aye' votes. This played out again in the floor vote, with a majority of America, by population, not wanting Kavanaugh on the bench - and their Senators, despite their votes, were drowned out by a minority with outsize say in our government.

How do we fix this sort of minority rule, especially when it can have generational consequences?

Why not call a new Constitutional Convention?

The legal grounds of this are shaky. Our old friend Article 5 provides a couple of ways to do this, originating either in Congress or the Statehouses. But the language in those provisions deals with amendments – not a new convention, per se. The founders, though, didn’t seem to mind meeting purportedly to discuss the Articles of Confederation, merely to throw them out and create a new foundational document. That act does provide a precedent.

Once we have a Democrat in the office of the Presidency, and a Democratic majority in the House (and ideally Senate), you could take the following steps:

The President announces to a joint session that they have 60 days to pick their delegates for a new Constitutional Convention. Each member of the House and Senate (including the Territories) gets to pick at least one delegate – with each state having a proportional number of delegates based on population. This would roughly mean 680 or so delegates. As for the Senate, their chosen delegates would be the only ones eligible to be Chair, so they have that. This choosing of the delegates would fulfill any current Constitutional qualms about Legislative oversight.

The delegates would have a low threshold of entry to serve: 1) Having been found guilty of no high crimes, felonies, misdemeanors, or treason, 2) Having not worked in the service of any foreign nation’s government or military interests, excluding in diplomatic service, and 3) Not currently serving in an elected or appointed capacity in any Federal or State government. (If a Representative, say, wanted to resign to serve in the Convention, though, that’s totally fine.)

In another special joint session, overseen by the VP and once the 60 days were up, the Representatives and Senators would have 30 seconds to announce each of their nominated delegates on the floor – with full biographies being posted in a single, online, government site for in-depth analysis. The document of delegates would be sent to the President, who could veto the list in toto or could veto specific State delegations – but only if:

1)      The delegates submitted did not fit the criteria listed above (eg. a felon from Georgia or a current Senator from Delaware)

2)      The delegate list of a state is not proportional to the State’s population on a basis of gender and ethnicity.

In general, there should be a push to get a broad coalition of folks. Delegates should represent agriculture and law, commerce and education, faith and science, medicine and the armed forces, diplomacy and technology, and all other major walks of life.

Assuming the President signs off on the list, then the delegates have a month to pack their bags and head to Philadelphia. Or maybe Denver. Wherever. The Chair will be voted on by the Senate-nominated delegates, and have a single vote, as well as a paid staff. Every delegate, including the Chair, will be paid $75,000 for a term of one year, starting with the Convention’s being gaveled to order. No other paid or contract work of any kind can be done during their service as delegates, nor can they take any positions lobbying at the State or Federal level for a period of ten years after their service.

Whatever document they come up with will require a simple majority to ratify, and must contain the following three aspects:

1)      Equitably handle the problem of the Senate, with a solution on the grounds of a proportional-to-population basis.

2)      Keep all laws not directly repealed by the new Constitution. (We don’t want to rewrite all of America’s laws, after all – so a provision is needed that states all US laws that were passed, both at the State and Federal level, including the First Constitution, still apply unless directly contravened by the provisions of the new Constitution.)

3)      Protect human dignity for all.

This document would be presented to the President to sign off on. If the President vetoed the new Constitution, or the Convention was unable to create a document in the year assigned, then the process begins anew automatically, with the selection of an entirely new set of Delegates, including Chair. Assuming that doesn’t happen, though, and the President signs off on it, then it goes to the Statehouses to ratify, requiring 2/3 to ratify (34 in total) to become law – and with no stated time limit in which to do so. Then it would be up to the American people to compel their statehouses to ratify the new Constitution. 

Then, and only then, we would have fixed the problem, quick approaching in the next twenty years, of a Nation even more divided and more partisan than our current mess.