Let’s Face It: The U.S. Constitution Needs a Makeover

The experts have been throwing around a lot of numbers in the wake of the U.S. presidential election. But there’s one statistic that hasn’t been getting its due. It turns out that 43.5 percent of the electorate chose not to vote at all. Out of 231 million eligible voters, only 130.8 million decided to show up. How can we seriously claim that the winner — or, for that matter, the other candidate, who won the popular vote — represents the will of the nation as a whole?

There are undoubtedly a variety of reasons for this shocking figure. Long lines and strict new voter identification laws in many locations — as well as some Republican Party voter suppression efforts — appear to have dissuaded some. But that isn’t really enough to explain why 100 million Americans opted out of exercising their democratic rights. As is so often the case, the simpler explanation is the more likely one: These people didn’t vote because they didn’t believe that their votes would have any effect on the outcome.

This undoubtedly has a lot to do with peculiar nature of this year’s presidential campaign. Both of the major party candidates on offer had the highest negative ratings in recent history. A deeply polarizing campaign alienated vast swathes of the electorate. Small wonder that many folks decided to stay home. (And for what it’s worth, I would have written this column even if Hillary Clinton had won.)

The problem here is more fundamental. Officially, the United States has a one-person, one-vote system. In fact, though, some votes count far more than others. That’s because of the skewed nature of the Electoral College system anchored in the U.S. Constitution. Thanks to this mechanism, voters in battleground states are far more important in determining the outcome than those in others. According to the Voter Power Index of pollster Nate Silver’s FiveThirtyEight website, a vote cast by someone in New Mexico on November 8 was about five times more likely to determine the Electoral College winner than the one I cast in my home state of Maryland. I did go to the polls — but more out of a sense of civic city than the belief that my vote would actually affect who ended up becoming president.

The Founding Fathers designed the Constitution precisely in order to create a buffer between the leaders and the citizenry. Traditionalists never tire of pointing out that the designers of the Constitution aimed to create a republic, not a direct democracy. The Founders wanted to ensure that empowered states would create a powerful counterweight to the central government — one of the many checks and balances built into the system. And they succeeded in doing so. But under today’s conditions, this has the effect of giving immense and disproportionate power to people in low-population rural areas and a handful of swing states.

Don’t get me wrong: The Constitution is a magnificent achievement. Its elaborate safeguards offer the best guarantee against the unchecked exercise of presidential power — something we may well have cause to be grateful for over the next four years. These are the parts of the document worth saving, and which truly make it a work of genius.

But let’s be frank: It’s an 18th-century work of genius. We’ve reached a point where our outmoded political architecture is betraying the ideals it was designed to protect.

Judging by my recent conversations on the subject, many political experts in this country acknowledge that the Constitution is deeply out of step with the times. But the admission is usually accompanied by a fatalistic shrugging of the shoulders: The Constitution, after all, is the centerpiece of our civic religion, so it’s pointless to talk about changing it in any fundamental way. Better, they say, to concentrate on more easily achievable reforms.

Some states are already showing the way. Virtually no one was paying attention on election day, given the scale of Trump’s victory, but Maine voters approved a potentially far-reaching change by passing a referendum on ranked-choice voting, an innovation geared to encouraging candidates who are “more open to moderation, compromise, and building governing coalitions,” as scholar Larry Diamond put it in a Democracy Lab article a few weeks ago.

The Harvard legal scholar Lawrence Lessig suggests concentrating efforts on two fronts. Campaign finance reform should focus on reducing the outsized role of the wealthy “1 percent” in political campaigns. And rolling back rampant gerrymandering — which creates safe districts for candidates of a particular party — would go a long way towards reducing political polarization.

He’s absolutely right, and we should pursue these changes wholeheartedly. But we shouldn’t stop there. There are plenty of other democracies in the world that routinely indulge in substantial constitutional engineering — probably because they’re less sentimental about their basic laws.

It’s time for us to follow suit. We need to start a national discussion about transforming our political system. We need to think hard, as a nation, about how to make our democracy more responsive to the needs of the people. Eliminating the Electoral College and introducing a direct election for the presidency would be a good start. (For what it’s worth, none other than Hillary Clinton herself proposed as much back in 2000. Donald Trump himself referred to the electoral college as a “disaster for democracy” in 2012.)

I know that fixing the Constitution sounds utopian – and it certainly isn’t going to happen within the next four years, given the Republicans’ pending domination of the machinery of government. It’s worth noting, though, that passing a constitutional amendment to eliminate the Electoral College would require ratification by 38 states — which is about the same number that are effectively disenfranchised by their status as non-battleground states. And I somehow suspect that by the end of President Trump’s first term, the nation may find itself poised to consider some fairly radical solutions to our present political malaise.

Even so, changing the way our current system works will be a generational task. But we’ve got to start somewhere. I’m encouraged by the fact that younger Americans — disillusioned by recession and student loans and navel-gazing baby boomers — appear to be far more willing to resort to a fundamental rethinking of how our country should work. What looks utopian to us may turn out to be an urgent priority for them.

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