Representative Government Has to Be Representative
And we are losing ground
I heard a very apt observation some years ago from the wife of then Maryland Congressman Roscoe Bartlett. In response to some question in the waning days of Bartlett’s tenure, Ellen Bartlett noted that if you don’t represent your district, you won’t represent your district. To borrow from a famous American phrase, that would seemingly be “self-evident.”
Regrettably, we are now seeing on a national scale growing and worrisome evidence that our representative government does not represent the governed in many, often disturbing ways. Bartlett’s observation is likely true at the local level, but distressing and dubious nationally.
Let us just start with the issue of the moment, the composition of the Supreme Court. Bluntly put, it’s ideologically badly unbalanced compared to contemporary America.
Representative government can never be perfectly representative of those it represents. That was the case going back to the founding of the republic, which essentially allowed no representation of women and only partial (very partial) representation of African Americans. But as many historians have stated, the Connecticut Compromise of 1787, providing for a lower legislative chamber (the House) with membership based on population, and an upper chamber (the Senate) where each state had equal representation, was intended to give smaller states a forum where their voice had greater weight than their actual numbers. It also gave a voice to their minority views.
For some, this compromise reflected the genius of the Founding Fathers; for others, it has come to represent a serious flaw. Why? Because as the American governmental system has evolved over the years, it has allocated to minority opinion powers that are, in essence, disturbingly disproportionate to actual numbers. The Founders presumed that giving minority voices a chance to be heard would lead to political results addressing their concerns to some degree. In other words, it would create compromises that would be acceptable — although not ideal — for the governed.
Yet even in the beginning, some were concerned that a motivated minority might be able to abuse such a system. As Alexander Hamilton wrote:
The public business must, in some way or other, go forward. If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good. [All emphasis added]
In short, one must be on guard against the tyranny of a zealous minority that uses its privilege of comment to frustrate the will of the majority. This is the essence of minority rule, and minority rule was never the objective of the constitutional system. Yet it seems that we have now become the victims of “tedious delays” and “intrigues” that are increasingly harmful to the “public good.”
This is reflected in many ways. But perhaps nowhere more dramatically than with the current Supreme Court. Let’s consider just a few of many factors of concern, especially in light of the prospect that the court is seemingly prepared to rule on a matter of public policy in a way contrary to the majority view of the American people.
First, we have a Supreme Court where a third of its members were appointed by a president who failed to win a majority of the popular vote in either of two elections. In 2016, Donald Trump received nearly 3 million fewer votes than Hillary Clinton and less than 47% of the total vote. In 2020, Trump lost to Joseph Biden by well over twice as many popular votes. Yet a one-term, minority president, of decreasing appeal, was able to appoint a third of the Supreme Court. With the exception of President Benjamin Harrison in the 1880s, no other one-term president ever put so many justices on the Supreme Court.
Since President Franklin Roosevelt, who was elected four times and served three terms in office providing a unique position in American presidential history, only two-term presidents have appointed more justices than Trump — Truman (4), Eisenhower (5), Nixon (4), and Reagan (4). Moreover, each of these presidents handily won the popular vote with Nixon in 1972 and Reagan in 1984 winning forty-nine of fifty states.
Second, Trump was able to fill so many seats because of Hamilton’s “tedious delays” and “intrigues.” Had the U.S. Senate actually performed its constitutional duty in 2016 when Justice Antonin Scalia died and President Barack Obama nominated federal Judge Merrick Garland to replace him, Trump would have had only two — possibly only one — appointments, an outcome more consistent with the history of one-term presidents. President Jimmy Carter, for example, filled no seats on the court.
However, in 2016, Senate majority leader Mitch McConnell of Kentucky, a man who values political power and influence above all else, and represents a state (my home state) having less than 1.5% of the US population, refused to give Garland even a hearing arguing that with a presidential election seven months away, there should be no new members confirmed to the court. The vacuousness of McConnell’s intrigue was on full display four years later when this same power-hungry 1.5 percenter rushed Trump’s nomination of Amy Coney Barrett through the Senate in the middle of a presidential campaign. Indeed, she was sworn in one week before the formal election and long after millions of absentee ballots had already been cast.
In short, Republican senators representing some 40 million fewer Americans than their Democratic colleagues, used their minority privilege to set an undesirable and indeed unhealthy “tone” within the American political structure.
Accordingly, we now have a Supreme Court where all but one justice went to either Harvard or Yale Law School. I admire Harvard, and went there myself for graduate school, but greater breadth would be preferable. Six of the nine Justices are Catholic — seven if one counts Justice Neil Gorsuch who was raised Catholic but now is Episcopalian. Although Catholics comprise the largest Christian denomination in the United States, they are still only 22 percent of the population. And like with their Protestant brothers and sisters, Catholicism is not monolithic. After all, President Biden is Catholic. And clearly, the views of court Catholics Coney Barrett and Justice Sonia Sotomayor are markedly different, but the current court’s composition would certainly raise the eyebrows of founding fathers who were largely Protestant and anti-Catholic.
There is one other interesting imbalance that is currently evident, one independent of the Supreme Court. In the 2016 election, Donald Trump carried 85% of the nation’s 3056 counties — and only 37 fewer counties in 2020. However, the counties carried by Clinton in 2016 and Biden in 2020 produce nearly 70% of the American gross domestic product (GDP). Clearly, since the Connecticut Compromise of 1787 Americans have been leaving the heartland and moving to the two coasts. A county voting for Biden in 2020 had on average six times the population of a Trump county.
Normally, such economic clout would be expected to translate to overwhelming political power. But this significant economic migration is largely independent of a commensurate political migration. Why? Because as people have vacated the center of the country, they have left behind two senate seats with their attached electoral votes, a condition that — again — traces back to 1787. Perhaps this is the most disturbing imbalance that we presently have — an economic vitality largely disconnected from a political base that is more motivated by perceived grievance than economic interest — even self-interest.
And this sense of political grievance and economic isolation is entrenching itself. Half of American counties are in fourteen states, led by Texas with 254. Ten of these states voted for Trump in 2020, and with so many local jurisdictions available, Republicans are working hard to elect local officials who can politically magnify what they lack demographically. Thus, the political imbalance will continue. The smallest county in the contiguous United States is Loving County, Texas, population of sixty-four, a locale where Trump won sixty of the sixty-four votes in 2020.
Is there some way to address this? That will take some thought and effort by those both smarter and younger than me. But the history of countries that essentially fall under minority rule is not a happy one. Lebanon, a country I have studied and written about in the past, comes to mind. Its political structure did not reflect its demographic reality, leading to the civil war that erupted in 1975 and has lingered on with varying degrees of intensity ever since. We should all agree that we want to avoid that fate. Such a fate is hopefully not a minority aspiration.