Is the Constitution Constitutional?

Contrary to the belief of some of our citizens, the United States is not nor was meant to be a democracy.  The writers of the Constitution had a very realistic view regarding man’s imperfections, and they tried to set up safeguards against the dangers of excessive executive power, unchecked legislative actions, mob rule, and other potential threats to our emerging republic.  Out of this arose the system of representation and the checks and balances that characterize our present Federal government.

The United States Constitution includes the result of the Great Compromise  This was the decision that each state, without regard to population, was to be equally represented in the Senate with two representatives. The founding fathers considered this principle of such importance that they included a clause in the Constitution to prohibit any state from being deprived of equal representation in the Senate without its permission (Article V of the United States Constitution.)  As a result of the Great Compromise, a sparsely populated state such as Wyoming has the same number of senators as populous California.

When states established their legislatures, they usually created a bicameral legislature based on those of colonial governments. Most copied the United States Senate model and established an upper house based on geography; for instance, having a state senate with one representative drawn from each county. By the 20th century, this often led to state senators from rural area electoral districts having votes equal to senators representing urban districts with much larger populations.  In both federal and state governments, lower house representatives were from electoral districts roughly equal in population.

Many thoughtful political observers vigorously defended this sort of arrangement.  The higher, less democratic, senate served as a brake on the precipitate actions of a more politically volatile lower legislative chamber.  Also, a geographically based senate could protect agrarian as opposed to strictly urban interests and, on the Federal level, balance the interests of more populous and less populous states.

On July 9, 1868, the 14th Amendment to the Constitution was adopted as one of the Reconstruction Amendments. The amendment addresses citizenship rights and equal protection under the laws and was proposed in response to issues related to the maltreatment of former slaves following the American Civil War. Regardless of its original limited intent, the first section of the   14th Amendment has become one of the most litigated parts of the Constitution, forming the basis for landmark decisions such as Brown v Board of Education (1954) regarding racial segregation, Roe v Wade (1973) regarding abortion,  Bush v Gore (2000) regarding the 2000 Presidential election, and Obergefell v Hodges (2015) regarding same-sex marriage. I believe many of these decisions to be wise and correct, but a few of them went far beyond any reasonable interpretation of the Constitution.

In Colegrove v Green (1946) the United States Supreme Court held in a 4-3 plurality decision that Article 1, Section 4 of the Constitution left to the legislature of each state the authority to establish the time, place, and manner of holding elections for representatives. However, in Baker v Carr (1962) the United States Supreme Court overturned Colegrove v. Green and ruled  that malapportionment claims under the  Equal Protection Clause of the 14th Amendment were subject to judicial review under  Article !V, Section 4..  In a follow-up decision in 1964 (Reynolds v Sims), the Court ruled that members of both houses of a state legislature must be elected from districts that are roughly equal in population. That decision overturned nearly two hundred years of political tradition and practice in the states.

I’ve been concerned about the courts ever since the “One man, One vote” rulings in 1962-1964.  Many people hailed these decisions as wise and democratic.  I, on the other hand, saw them as an unwarranted usurpation of power by the Supreme Court.  How could a court rule it unconstitutional to have a system of representation in the several states that our founding fathers prescribed for the Federal government?  Logically, it seemed to me that they were ruling the Constitution unconstitutional.  Is our Constitution schizophrenic? Using the same kind of logic, an activist court might decide the Constitutionally prescribed electoral college is also an unconstitutional anachronism.

The Constitution is a wonderful document written by unusually gifted men.  Of course, it is not perfect.  The drafters arranged for ways for the document to be amended, slowly and carefully, by popular will – not by Supreme Court fiat.

I wrote letters about my concerns in 1962, but it was like blowing into the wind.  After that time, of course, activist courts continued to go further and further in their exercise of judicial power, and many jurists appeared to interpret the Constitution in any way that suited their particular world view. When that happens, the wishes of the people as expressed through democratically elected representatives no longer counts for much, and true representative government is in jeopardy.  Most of our people seem to be blissfully unaware of the danger, but perhaps things are changing.  The most recent appointees to the Supreme Court are men who profess a healthy respect for the Constitution and the limits of judicial authority.


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