America's 'broken' Constitution is exactly what the founders intended

Next month, the Democrats may win a significant majority of the votes for the House of Representatives and an overwhelming majority of the votes for the Senate and still fail to take the majority in either. They might even lose seats in the Senate.

That sounds like prima facie evidence that American democracy is badly broken. But it's exactly the result America's system was designed to deliver.

The Senate, which guarantees each state equal representation, was devised from the beginning to be a check on the democratic centralist tendencies that the founders presumed would dominate the House of Representatives. Unlike the infamous three-fifths compromise, this was not a measure meant to placate (or mitigate) the interests of the slave states. The largest state in the 1790 census (and by far the largest when slaves are included) was Virginia. Other slave states like North and South Carolina were also under-represented relative to their total population in the nascent Senate, while Rhode Island, Maine, and Vermont were all over-represented.

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Rather, the Senate was designed to prevent the interests of large states, slave or free, from completely dominating those of small states. While the large states would dominate in the House, as well as in the corridors of power generally, the Senate would give the small states an opportunity to extract concessions as part of the legislative process.

Is that an affront to democracy? It depends what your theory of democracy is. If democracy is about discerning and implementing the will of the majority of its citizens, then a system that frustrates that will is clearly unjust. But a political system's legitimacy depends, ultimately, on all its various segments and factions accepting its decisions. If the states are seen as distinct and at least semi-sovereign bodies with interests of their own, it's not obviously unjust to seek ways to alleviate the reasonable fears of the weakest among them, anymore than it is obviously unjust to give Scotland or Quebec special rights and powers so as to encourage them to remain in the United Kingdom and Canada respectively.

Of course, if the small states all voted as a bloc against the large states, that could be a serious problem. But today's Senate is not as biased against Democrats as one might think. The 16 smallest states by population have between them 16 Democratic senators (including independents who caucus with the Democrats) and 16 Republicans — and the Democrats actually represent fewer aggregate voters than the Republicans do. Even if Sens. Heidi Heitkamp (D-N.D.) and Jon Tester (D-Mont.) both lose their seats, the partisan split would still be fairly close.

Rather, the bias against Democrats and toward Republicans comes higher up the population scale. From Mississippi to Missouri, the 17 states in the middle-rank of population have a total of 21 Republican senators and 13 Democrats. By contrast, the largest 17 states are represented by 14 Republicans and 20 Democrats. And 75 percent of the disparity between the population represented by the average Democratic senator and the average Republican senator can be explained by a single mega-state: California. The counter-majoritarian structure of the Senate sounds less obviously absurd when you describe it as a way of keeping California from pushing the rest of the country around.

The House of Representatives, of course, is another matter. It was designed to represent the people directly, and the fact that Democrats could lose the House even if they won a significant majority of votes should be troubling. But this, too, is a potential consequence of any territory-based system of voting. For instance, Westminster-style parliamentary systems can also produce minority governments (and have, in recent memory, in both the U.K. and Canada) when the ideological majority is divided between multiple parties, or when it is "inefficiently" distributed, with lopsided majorities for one side in some districts and thinner majorities for the other side in other districts. Gerrymandering makes this problem worse, and is completely unjustified by any democratic theory. But even neutrally-drawn districts would, in America today, probably result in a bias towards the Republicans because of the scale of Democratic majorities in uncompetitive urban districts.

Is that an affront to democracy? Again, it depends on what your theory of democracy is. A territorial system of representation is designed to assure that individual representatives are attentive to the particular interests of their districts. If a population's true interests are no longer driven by geography, but by other factors, then that's an argument for shifting to a system of proportional representation.

But it's worth pointing out that such systems can also be stymied by determined minorities — and can prove distinctly oppressive to other minorities. Consider Israel. Parties representing ultra-Orthodox Jewish voters have nearly always been part of the governing coalition, whether of the right or of the left, and have repeatedly stymied broadly-popular efforts to rein in the power of the rabbinate. By contrast, the Arab-dominated parties have never been part of any coalition government and have far less influence over national policy than their population would suggest they should.

My point is not to minimize the drift in America against liberal democracy. Rather, it's to illustrate that profound cultural cleavages can warp and distort any democratic system. And it's those cleavages rather than our kludgy, frequently counter-majoritarian system that are to blame for the uphill climb the Democrats face in assembling a governing majority.

In our system, such a governing majority must be geographically broad, must overweight rural interests, and must overweight the interests of small states. One party has found success in deliberately deepening those cleavages, the better to build a governing majority out of a dispersed minority. The other party can only counter that strategy by adopting a politics that finds genuine common ground, not with the other party, but with the dispersed minority that increasingly votes for it.

Because if the counter-majoritarian kludges of our system are the problem, there are hard limits to what we can do about it. Even amending the Constitution won't necessarily do the trick. Article V specifies that while the Constitution can be amended in nearly all ways, there are exceptions, specifically: "[N]o state, without its consent, shall be deprived of its equal suffrage in the Senate."

However hard winning a majority might be, it's got to be easier than unanimity.