As is well-known, the US Constitution includes two major institutions that do not operate according to the principle of majority rule. The first is the Senate, where both California and Wyoming receive the same representation despite their vast difference in population. The second is the Electoral College, which in our young century has twice delivered the presidency to the loser of the popular vote. Critics of these institutions emphasize their obvious anti-democratic character, while defenders point to the special role of the states in the federal structure set up by the Founders. Though the system does go against our majoritarian instincts, the story goes, these so-called “laboratories of democracy” are crucial to America’s unique form of constitutional democracy.
Lost in this debate between democratic intuitions and the Founders’ intentions is the empirical question of whether the states as they currently exist actually fulfill a legitimate role in our system. One way to answer that would be to ask what states would have to look like to justify providing them with special representation even if it meant overriding the popular majority at the federal level. Clearly the states would need to have robust and meaningful democratic legitimacy on their own. They would need to represent coherent communities with identifiable and distinctive interests and values, and they would need to display an engaged political culture among their citizens.
Though each of our existing states would fare differently, it is clear that almost no actual-existing state meets those minimal standards of democratic legitimacy. Very few fulfill the requirement for political cohesiveness, and why should they? In the vast majority of cases, state lines were drawn while the territories in question were sparsely populated. To pick one striking example, Indiana and Illinois were admitted to the Union in 1816 and 1818, respectively, at a time when Chicago did not yet exist as a significant urban center. Why should boundaries established under such radically different circumstances continue to determine Senate and Electoral College representation today?
We could ask the same kinds of questions about state-level government: why should representatives from Carbondale, in southern Illinois, get to weigh in on matters relating to public transit in Chicago, for instance, while representatives from northwest Indiana are excluded? What do all the citizens of Illinois or Indiana have in common other than the arbitrary fact of having been grouped together as a “state” 200 years ago? Are such political units meaningful to their residents at all?
Based on electoral turnout, the answer is obviously no. U.S. voter turnout for federal elections is substantially lower than that of most developed nations, but a substantial majority do participate. The same cannot be said about states and municipalities, where average voter turnout in off-year elections hovers around 30-40% in most cases. If an independent country consistently displayed that low level of voter participation, we would hesitate to call it a real democracy. To use an admittedly inflammatory recent example, turnout was 41% in the 2018 election in Egypt, which was widely denounced as a sham meant to legitimate the military ruler Abdel Fattah el-Sisi.
Such low turnout means that 15-20% of a state’s population can determine the balance of power in state government.This produces a vicious cycle where incumbent politicians have no incentive to try to increase participation, since by definition they have developed successful strategies under the low-participation regime. Lack of popular accountability then opens up possibilities for corruption and self-dealing, which has in fact characterized state-level government through all of American history. That problem is exacerbated by the collapse of local journalism in recent decades, but the danger is built into the system.
Even worse, state-level politicians have considerable influence over voting rights in our federal system. Not only do they get to determine voter registration and eligibility rules, but in most cases they are empowered to draw legislative districts. Recent years have seen nationwide debates over voter ID requirements, the voting rights of felons, and gerrymandering, but the real question is why states should have any power over voting rights in the first place. Even granting the benefits of state-level autonomy for purposes of experimenting on public policy, what possible justification could there be for regional variations in something as fundamental as voting rights?
The answer, of course, is that there is no principled answer. This bizarre situation results from the fact that we are still living in a compromise struck over 200 years ago under radically different circumstances. The US Constitution has a foundational role for states not because there is some inherent virtue to state-level autonomy but because the governments of the former colonies already wielded considerable authority at the time of the framing. Getting those state governments to participate in the new federal structure required measures to guarantee that state boundaries could not be changed and equal Senate representation could not be removed involuntarily. The political realities of the late 18th century also dictated a constitutional amendment process that was heavily intermediated through the states—a process has not been used successfully in over a quarter-century.
Under our current constitution, it seems almost impossible to envision getting out of the straitjacket imposed by the arbtitrary hodgepodge of political units known as states. Yet the Founders themselves provide an example for how to escape from this dilemma—namely, to ignore it. Our current Constitution is illegal under the terms of the Articles of Confederation, which proved unworkable since it provided a veto to every individual state. Facing a similar problem, we should take similar measures and develop a new constitution that reflects modern realities, to be ratified under conditions that we choose for ourselves.