The People of 1787 chose a system that effectively binds us on how our president is to be chosen, but that method most often resulted in a president who has received the greater support from the voters. The People of 1787 also chose a national legislature that is not representative of the majority of the country’s people. And the People of 1787 expressly forbade later generations from changing an essential component of the legislature so that our national laws might truly reflect the consent of the governed.
Both the House of Representatives and the Senate must pass a bill for it to become law. The Constitution chosen by the People of 1787 provides that the House must be apportioned according to population. While this apportionment and the resulting House elections may be imperfect, we can say that the House represents the People. The governed have given a consent when the representatives act. But what about the Senate? Each state, no matter the number of people in that state, gets two Senators. In essence, the citizens of Wyoming, the least populated state, has sixty times the representation in the Senate as do the citizens of California. There were understandable reasons why the People of 1787 chose this constitutional construction, but would the People of today do so?
If we were setting out to form the government today, we might opt for the direct election of the president, and while amending the Constitution to reach that result is almost impossible to accomplish, it is theoretically possible. It is harder to conjecture what the People of today would choose if they wanted to change the basic composition of the Senate. But there is no point in even contemplating it. Under our Constitution, we are forbidden from changing equal representation in the Senate for each state. Article V of the Constitution, which defines the amendment process, prohibits altering the Senate by stating “that no state, without its consent, shall be deprived of its equal suffrage in the senate.” Wyoming can always have representation in the Senate equal to California. Delaware can always have the same number of Senators as Texas.
The People of 1787 made it impossible for the People of any later time to reconsider this basic aspect of the Senate that gives more powers to some citizens than others.. The People of the eighteenth century prevented the People of today from deciding for themselves how the consent of the governed should be determined.
When we take pride in announcing that the United States is a government of “We, the People,” we should realize that the extolled People are often not us, but those from long ago. In crucial ways, the sovereign of this country may no longer by King George III, but it is the Americans of George’s time who are sovereign over us. We may not be controlled by a live King, but we are controlled by a dead generation of centuries ago.
And now conservatives seek to interpret the Constitution in ways that magnify the sovereignty of the People of 1787 over us. But that is for another day’s discussion.