Home / General / The U.S. Constitution has become a radically dysfunctional document that needs to be replaced by something completely different

The U.S. Constitution has become a radically dysfunctional document that needs to be replaced by something completely different


This long Ezra Klein piece about the debates surrounding the work of wunderkind pollster David Shor is full of technical arguments that I’m not qualified to evaluate. It features this particularly sobering prediction from Shor:

At the heart of Shor’s frenzied work is the fear that Democrats are sleepwalking into catastrophe. Since 2019, he’s been building something he calls “the power simulator.” It’s a model that predicts every House and Senate and presidential race between now and 2032 to try to map out the likeliest future for American politics. He’s been obsessively running and refining these simulations over the past two years. And they keep telling him the same thing.

We’re screwed in the Senate, he said. Only he didn’t say “screwed.”

In 2022, if Senate Democrats buck history and beat Republicans by four percentage points in the midterms, which would be a startling performance, they have about a 50-50 chance of holding the majority. If they win only 51 percent of the vote, they’ll likely lose a seat — and the Senate.

But it’s 2024 when Shor’s projected Senate Götterdämmerung really strikes. To see how bad the map is for Democrats, think back to 2018, when anti-Trump fury drove record turnout and handed the House gavel back to Nancy Pelosi. Senate Democrats saw the same huge surge of voters. Nationally, they won about 18 million more votes than Senate Republicans — and they still lost two seats. If 2024 is simply a normal year, in which Democrats win 51 percent of the two-party vote, Shor’s model projects a seven-seat loss, compared with where they are now.

Sit with that. Senate Democrats could win 51 percent of the two-party vote in the next two elections and end up with only 43 seats in the Senate. 

The Senate of course is a horribly anti-democratic institution, without even taking into account such added extra-constitutional features as the filibuster (Joe Manchin is apparently trying to set some sort of record for Orwellian verbal distortion by insisting that preserving the filibuster is necessary to save “democracy.”).

But Shor says it’s getting worse for two related reasons: Educational polarization and the disappearance of ticket splitting. Educational polarization means that Democrats become increasingly urbanized, which disadvantages them even more in the Senate, which by its very structure is wildly biased toward rural America. The end of ticket splitting means that Democrats can’t elect senators in red states any more, and of course red states outnumber blue ones, because of the rural bias of the constitutional system. (Political scientists have been pointing out for awhile now that by 2040 70% of our senators are going to be representing a total of 30% of the nation’s populace).

Shor has a bunch of recommendations about messaging and so forth to address this disaster; as I said I’m not qualified to evaluate any of that stuff, but at one level it’s almost irrelevant. That’s because the problem isn’t “messaging” — it’s that the game is totally rigged. Speaking of messages, telling Democrats that as long as they always score two more TDs than the GOP then they can still win half the elections isn’t a viable long-term message, because it’s so obviously absurd on its face.

The bottom line problem here are the structural features of the U.S. Constitution, including but not limited to:

(1) The existence of the Senate.

(2) The Electoral College.

(3) What Juan Linz called “the perils of presidentialism,” i.e., the dual sovereignty problem of dividing the governing authority between a legislative and an executive branch.

(4) Life tenure for SCOTUS justices, which is arguably not a structural constitutional issue, as there’s an argument that could be altered by Congress, but guess who gets to decided that argument?

And then there are a bunch of other things that could in theory be altered by simple legislation — such as the size of the House of Representatives, and state representation for DC and Puerto Rico — that can’t actually be altered that way, because of some combination of factors 1-4.

The American Constitution has devolved into a radically dysfunctional document from any even mildly small d democratic perspective — not to mention from any perspective that is not sufficiently reactionary to engage in irrational ancestor worship for its own sake.

A closely related problem is the very broadly believed cultural mythos that takes it as axiomatic that the governing structures created by this document are essentially inseparable from the identity of the nation itself. (And if you’re looking for any critique of that mythos in America’s law schools, you’re looking in the wrong place).

How to fix all this is a bit . . . challenging, given that again those very same structural dysfunctions make any sort of fundamental revision or replacement basically impossible.

So yeah, I’ve tried nothing and am all out of ideas, so I hope you’ve got some good ones.

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