Annie Kuo Becker (AKB): Welcome to Discovery, the podcast where we explore the legal ideas shaping our society and democracy. I'm your host, Annie Kuo Becker, and today we're joined by a distinguished scholar of constitutional law, retired Professor Hugh Spitzer of the University of Washington School of Law. Welcome, Hugh.
Hugh Spitzer (HS): Nice to be here.
AKB: With a career spanning decades of teaching, research and writing on comparative and constitutional law, Professor Spitzer has been a thoughtful voice on how our founding legal structures intersect with modern political life. In his recent Seattle Times op-ed “This Baked-in Constitutional Conundrum will take some time to Repair”, Professor Spitzer argues that two structural features — the disproportionate power of small population states in both the U.S. Senate and the Electoral College, and extraordinarily rigid rules for amending the U.S. Constitution — have contributed to deep polarization and make meaningful constitutional reform difficult.
Today, we're going to unpack what these constitutional conundrums are, why they matter now more than ever and whether there is a realistic path toward reforming the very framework of American democracy.
So, Professor Spitzer, you describe what's built into the Constitution as a quote constitutional conundrum. Could you briefly explain what you mean by that phrase, especially in terms of how the Senate and Electoral College amplify the voices of small population states?
HS: Sure, the basic issue is that we have this system in the United States that was set up in 1787 and approved in 1788 where each of the states has two senators, no matter whether it's a big state or a small state. And then the House of Representatives is set up on a proportional basis, based on population. In the Constitutional Convention, James Madison, who was for Virginia, a big state, he really wanted to have both the House and the Senate based on proportional population, although he thought that each state should have at least one senator, he thought that the big states ought to have more senators than the small states. But he could not get that through. The smaller states like Rhode Island and Connecticut, small population states said we're not going to sign this constitution unless we have an equal voice in the Senate. But the result of that is peculiar today.
Wyoming has a population of somewhat more than 587,000 people. California has 39.43 million. That means that somebody living in Wyoming has 67 times more voting power than a Californian, at least when the Senate is concerned. And the senators from the 25 least populous states, so that's half the Senate, represent just 16 and a half percent of the entire country. So, it's a very peculiar system that we have today.
It's important to remember that at that time, the federal government was not as important as it is today, not at all. And most of the governing in our country was done at the state level, not at the national level, and that's fine. We had 13 and then 15 and today, you know, 50 little separate countries that did most of the governing. But since the 1930s when the federal government was asked to deal with the depression and then World War Two, the federal government has grown. It's grown, really, throughout the 20th century, into the 21st Century.
Federal government has a lot more responsibility, and it has a lot more impact on people's lives. Back in 1787, we didn't have ICE or Customs and Border Patrol folks. We didn't have federal officers operating within the states like we do today, and we didn't have federal programs like Social Security and Medicare and Obamacare. So the federal government has become more and more important in people's lives.
If we want to continue to be a democracy, then we really ought to give more voting power to the people in all of the states throughout the country. My own view is that the best way to elect the president would be to do away with the Electoral College altogether and to move to a system like many countries have, where candidates run for president nationally, and there might be many candidates, and then the top two go to a runoff, regardless of party. And this is what you see in many, many countries, and it's just a lot more democratic, but changing the Electoral College system or changing the U.S. Senate is a big push.
AKB: Sounds like these reform proposals like abolishing or reforming the electoral college or altering Senate representation are controversial because those smaller states that hold the power are going to want to retain that, right?
HS: That's right, and of course, to change the constitution under the amendment provisions, there are two ways of amending our Constitution, formally. One is that two-thirds of the house plus two thirds of the Senate can propose a constitutional amendment, and then it goes to the states, and when three quarters of the states have approved it, then it becomes part of the Constitution. That's hard. The other proposal is for the legislatures of two-thirds of the states to propose a constitutional amendment, and then it also eventually has to find its way with the approval of three quarters of the states. So it's hard to get amendments through.
AKB: Those sound like pretty rigid standards.
HS: Well, it was meant to be rigid because the small states back in 1787 wanted to have a stronger voice in the national government. And again, at that time, they didn't think the federal government was going to be as busy, as active nationally as it is today. And so the trick is, how do you make that change? It is possible, but it requires a mass movement.
For example, getting women the right to vote was the result of at least 75 years of organizing, lobbying, having meetings, having marches throughout the country. And of course, it really got revved up in the first couple of decades of the 20th century, but there were tens of thousands of people and of women marching together nationally and pressuring their husbands and their friends in the legislatures to approve an amendment. Same with prohibition, and the same with doing away with prohibition. Getting women the vote took a tremendous push nationally, and a lot of people in 1900 would not have thought that it was going to be successful, and it was successful. So, it would be possible to change, but it requires a strong mass movement with hundreds of thousands of people for representatives in Congress to act.
AKB: Can we go back to another piece in your article, in the op-ed, that talked about a real danger that this frustration and anger that is housed within, you know, some of these more blue states and cities that are currently under attack by the Trump administration? They have this anger that could boil over and cause people to consider extra legal action. Can you just explain more about what that means the “extra legal action?”
HS: Sure, my concern is that because people are getting very frustrated with the current national government and its inflexibility, that some people will start to really start being violent — either, for example, attacking ICE officers, or doing other things that will cause a reaction that will only be worse. I think it's important for any movement to be nonviolent. Martin Luther King stressed that so much during the Civil Rights Movement, and there are a number of reasons.
One is nonviolence works because it maintains the moral authority of your position. The other reason is that, at least in our country, many of the people who would like to see change of our basic structure are not armed. They don't have weapons, or if so, they don't have very many. And some of the people who are against these kinds of changes are more likely to be armed and to have more weapons, and people are going to get hurt. And when you have violence in a community and violence in a country, just lots of people get hurt. And I just don't think it works very well.
I think nonviolence is the most effective approach. It was effective with our Civil Rights Movement. It was effective with the women's movement that brought women the right to vote. And it was effective, for example, in South Africa. So, I really think that that's the way to go. I don't think violence gets you anywhere.
AKB: Right. So, we hope that the frustration people feel will be rerouted or feel a more peaceful, nonviolent mass movement to invoke the request for change.
HS: I think that's right. And if people are acting together, whether it's writing letters, having blogs, or going out and marching with tens of thousands of people, it gives them strength, and it gives them the ability to work hard.
The other thing that we really need to do is to communicate. That is, if you want to have constitutional change and set up a somewhat more democratic system nationally, it's important for people who live in the larger states who are, in a sense, being discriminated against — they don't have the voting power that people do have in the little states — to go visit those little states and to talk with the people in those states. I think we have to communicate nationally with our fellow citizens in order to get some willingness to change. Again, there were a lot of men back in 1900 who did not want women to have the right to vote, and it took an awful lot of talking with a lot of people to make that change.
In our state in Washington, in 1889, the male electorate voted down a proposal for giving women the right to vote. Interestingly, one of the main arguments they made against women voting is they thought that once women could vote, then they would support prohibition and the men would lose the right to drink beer and alcohol. As it turned out women got the vote in 1912 and we went dry in 1915.
AKB: That’s ironic.
HS: But that, at least, was democratic.
AKB: I want to pose a question that was in your op-ed, what you discuss about communicating across the aisle or communicating across the country between states is the opposite of secession, which is one resolution that that has been on the radar for how voters in states with large populations can protect their democratic rights and values. Some on the “Left Coast,” our West Coast, have talked about leaving country where there's this imbalance, but you have a counter argument for that.
HS: Right. I've actually done quite a bit of academic work on the topic of secession. I did my master's thesis on secession from the United States, focusing on the period just before and during the Civil War, and then looking at secessions in other countries. Whether it was the proposed secession of Quebec from Canada, or earlier, the successful secession of Norway from its joint kingdom with Sweden — that was peaceful.
I've looked at a lot of different secessions, and secession might be a solution here. You could have California, Oregon and Washington secede. You might have New York and New England secede. Some problems with that, from my perspective, one, is then we as Americans would be abandoning other Americans in the other states who might agree with us on policy issues. And then they would be left in states where they would be much more uncomfortable than they are today.
The other issue about secession is that there would likely to be a strong reaction from the national government. There was in 1861 and for good reason. About the last thing we need is an attempted secession leading to a war. So, again, I just think what it really takes is a mass movement and sticking together as a country as long as we can, if we can. If we can't, well, then maybe Washington should rejoin British North America, which is where we were until the mid-1840s. We were together with British Columbia. And then the United States and Great Britain decided to split Colombia between British Columbia and what became Washington. We could try to rejoin but I'm not sure that's really practical — nice as people are in Vancouver.
AKB: Maybe we can emulate something else from Canada on our own soil.
HS: Interestingly, Canada, in my view, has some real advantages, partly because they've learned from the United States in rebuilding their constitution in recent years, but their provinces are somewhat stronger than our states are, and that might be a good thing. But of course, there are many fewer as well. But one of the best things they have is a national independent electoral service that controls the elections at the provincial and national level and sets up the boundaries of the electoral districts — called ridings in Canada — and also governs the whole electoral process so it's completely nonpartisan and independent. They have, like a retired judge, typically running the whole system.
That is something that we could put together so at least Americans can have confidence that the electoral system that we have is fair and that we don't have any rigging going on or gerrymandering.
AKB: It is possible that we could see down — I don't know if we'll still be around. We can set in motion the possibility that there may be amendments to make the Senate, the Electoral College and the nation's voting systems more fair and more representative of the country that we are today, which is not from the 18th century.
One other thing I've thought of is that it might take the house, which is completely democratically elected, as long as things are not too gerrymandered anyway. It's possible that the House, which is more democratic, that the House could say we're not approving any more budgets unless the Senate goes along with us to propose a constitutional amendment to give more seats in the Senate to the larger states. For example, you might have a minimum of one senator per state and a maximum of four. It would still be somewhat out of whack in terms of population, but it would be more reflective of the populations of each state and throughout the country. So, I think it ultimately might take a mass movement, plus the House getting really stubborn.
AKB: And where are we today with this potential movement? Is there any leaning in the current House to examine and push for a change?
HS: I don't think that's in the top of the House agenda right now, but it could be, again, with a strong mass movement. Today, people are quite worried about other issues. They're worried about our interference with other countries. They're worried with, you know, attacks within cities by federal agents. So, people are focused on those things. But part of the reason we have those problems is because the electoral system is out of whack, the Electoral College system, and also the Senate is out of whack. And so it's conceivable that our current mass movements, or developing mass movements, could grow and then shift into these other issues.
David Brooks, who's a conservative op-ed editorial writer for the New York Times, has written a very thoughtful piece about the need for a mass movement in the United States to protect democracy. I think it's very important to realize that many conservatives are just as concerned as people who are more liberal about protecting our republic and our democracy. And in a piece that he wrote recently in the New York Times, he pointed out a book by Erica Chenoweth and Maria Stephan called Why Civil Resistance Works. They looked internationally at hundreds of nonviolent uprisings, and they found that when people are very organized, put together a strong lead organization and then push for change in the streets by writing articles, but most importantly, turning out in the streets and also pressuring their representatives, it does create change. And he says these movements are small and they build up, but they can be very, very successful.
When I was in college, 55 years ago, we had the Vietnam War going on, and so lots of people, particularly young people, went out into the streets. And I went to rallies in Washington, D.C. and in New York City. I went to one rally in New York City where there were 300,000 marchers and we all wound up — some of us anyway, there's so many people, it just filled the streets — but we wound up in front of the United Nations, and I saw Martin Luther King speaking to the crowd. And these constant marches and other actions by young people actually stopped the war. It took a while, but it did, and this is probably what it's going to take, again, a mass movement.
Now, in my little article in the Seattle Times, I said one of the problems is that a lot of us are lazy, and, you know, we're doing okay and we're comfortable and so we're not going to go out in the cold and march around. Or we don't think it's going to make a difference, but it does make a difference, particularly if people go out repeatedly and constantly. That's what it took for women who wanted to get the vote and they marched constantly, sometimes on horses dressed up as angels and all kinds of things in order to get publicity. But they pushed, pushed, pushed, and it finally worked.
AKB: So, whether it takes folks out there in front of their local Costco in like an inflatable duck costume, pushing for constitutional reform. That's what it takes to get the attention of the government.
HS: That's right, and to get the get the attention of the other people in the country. Think of the Civil Rights Movement. Starting out with a relatively small number of young college students in historically Black colleges in the south starting to do sit-ins, going on freedom rides, then joined by other young people from the north as well as the South. And it caught the attention of the rest of the country, and then things started to change. It would take a tremendous amount of work, but you always have to take the first step if you're about to go on a long march.
AKB: I think that's a great note to end on. Thank you so much for schooling us up on this very big topic.
HS: Thank you.
AKB: Co-author of the book The Washington State Constitution, Hugh Spitzer is a retired professor at the University of Washington School of Law and associate dean emeritus. He has a number of op-eds on legal and constitutional issues in newspapers and media. We'll link to them in our show notes.
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