Democrats: The Constitution Is Unconstitutional!

A major theme on the Left these days is that any institution with elements other than pure, one-man-one-vote democracy is illegitimate. That would include, among others, the Electoral College and the Senate. This tweet by soon-to-be-Congresswoman Alexandria Ocasio-Cortez is one example among many:


The Electoral College is a “shadow of slavery’s power”? Huh? The electoral college reflects that the United States is just that–a union of states. States are important.

It seems to have just dawned on liberals that our constitutional system is not a pure democracy. It is, rather, a system of checks and balances that is intended to require a degree of consensus, expressed in multiple ways, in order to implement major changes. Ocasio-Cortez and other liberals are indicting the Constitution. Their ultimate indictment, of course, is that the Constitution condoned slavery, which pre-existed it, until it didn’t. See the 13th Amendment. So what’s the point?

Like much the Left is doing these days, it is hard to see a coherent strategy or a plausible end game. Ocasio-Cortez wants to “eliminate the Electoral College.” That, of course, would require a constitutional amendment, and there is no chance of that happening. A constitutional amendment must be proposed either by a convention of the states–anathema to liberals–or two-thirds majorities in both the House and the Senate. In either case, it becomes effective only if ratified by 38 states. To repeat, there is no chance of that happening.

Law Professor Larry Tribe complains that four members of the current Supreme Court were appointed by presidents who “first took office after losing the popular vote.” That carefully-phrased formula is dishonest; George W. Bush’s Supreme Court appointments both came after he had won the popular vote. But, in any event, so what? The “popular vote” has no constitutional significance. If presidential elections were determined by a nationwide vote total, candidates would run entirely different campaigns. It is silly to hypothesize a different set of rules and re-cast elections, as if those rules had been in effect.

A reader adds:

Aside from the double talk and special pleading you can always count on from the Dems/left/MSM — the Supreme Court is now “unrepresentative,” but a liberal Supreme Court is good because it prevents majoritarianism, e.g., the bigoted populace preventing gay marriage — there is another truly radical implication to these predictable expressions of left outrage.

The issue of the Senate, the Electoral College and, perforce, SCOTUS being “unrepresentative” amount to an argument against having states at all other than simply as administrative units for a central government! One big House of Representatives, exactly proportional to the entire population completely irrespective of historical, arbitrary “states” and a president elected by 50% +1, or even a plurality, of the total “popular vote” is what their arguments imply — a plebiscitary democracy on a gigantic scale. It’s the constitution they are opposed to. And more fundamentally, “no states” at all is the obvious ultimate implication of complaints about the Senate and the election of the president.

The left argument simply assumes that the “popular vote” in the aggregate nationally is, or at least ought to be, the standard by which the presidential election is judged to be legitimate; anything else is illegitimate and “unrepresentative”, and the Senate inherently so. But there was never any intention to have “one man, one vote” be the appropriate standard of legitimacy on the national level as it was at more local levels. The founders wanted to force a widespread consensus across a whole collection of local majorities to balance different interests. This prevents ten or a dozen urban aggregations (NY, LA, SF, Chicago…) from dominating without having to balance other interests. The “popular vote” in the aggregate nationally is just a journalistic construct that is entirely extra-constitutional.

The Democrats’ pining for a different Constitution can only be a source of schadenfreude for the rest of us.

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