Is the Constitution Unconstitutional?

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 (see 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. Many copied the United States” Senate model, establishing an upper house based on geography – for instance a state senate with one representative drawn from each county. By the 20th century, this often led to state senators from rural areas having votes equal to senators representing much greater urban populations.  In both federal and state governments, the lower house was to be elected solely on the basis of population.

Many thoughtful commentators have vigorously defended this sort of arrangement.  The higher, less democratic, legislative house serves as a brake on more precipitate action of a politically volatile lower chamber.  Also, a geographically based senate can 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 United States Constitution was adopted as one of the Reconstruction Amendments. The amendment addresses citizenship rights and equal protection of the laws and was proposed in response to issues related to former slaves following the American Civil War. Regardless of original 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 I, Section 4 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 Fourteenth Amendment were not exempt from judicial review under Article IV, Section 4. This became known as the “one person, one vote” doctrine, which requires electoral districts to be apportioned according to population  The decision meant that electoral districts for both upper and lower state legislative houses must be roughly equal in population,

I’ve been concerned about the courts ever since the “One man, One vote” ruling in 1962.  Many people hailed that decision as wise and democratic.  I, on the other hand, saw it 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 me.  Of course, it is not perfect.  The drafters arranged for way 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.  Since that time, of course, activist courts have continued to go further and further in their exercise of judicial power, and they seemingly interpret the Constitution in any way that suits their particular world view. When this happens, the wish 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 with a healthy respect for the Constitution and the limits of judicial authority.