Dress for Success??

“You can be better dressed when you own a lot of stuff.” Helen Gurley Brown.

The Senate recently changed its dress code. Many, appropriately considering the topic, got their undies all twisted. The Senate then reversed itself and reverted to the old code.

Apparently, the Senate has a formal dress code. Who knew? It must be written down somewhere, but most dress codes that affect almost all of us are the unwritten rules of good taste and proper decorum. These standards, however, change. We all could cite examples. For example, when I was a kid, men almost always wore a jacket and tie when attending church. Perhaps this was thought decorous because people believed that Jesus wore a Harris tweed or a flannel worsted with a tie and spit-polished brogues. Now, however, while few may wear robes and sandals to Sunday services, many men can worship without a jacket and tie.

Similarly, women in all sorts of settings can do their work satisfactorily while wearing pants when in the not so olden days they had to wear a dress or skirt. The spouse remembers her first “real” job in 1969. She was cold in the office and decided one day to wear her very nicest slacks. You’d think she had come to work naked. The president of the organization came by, looked her up and down, decided that it was okay, and silently left her alone. Revolution!

Back in the day, women showed cleavage in public only in the rarest of settings. Today peek-a-boobing is everywhere.

The notion of proper clothing changes, even in the Senate, apparently, except not this time. This Federal teapot tempest, however, has had me thinking about some dress code encounters.

I was not presented with guidelines on how to dress when I first started going to court a half-century ago, but somehow, we all knew robes were required for judges (although a famous federal judge did not wear them), suits with ties for men, and dresses for women. Indeed, I was ill at ease when the codefendant’s counsel at one of my first trials appeared wearing a fisherman’s sweater. I worried that the jury might see this as disrespectful with the disdain rubbing off on me and, more importantly, my client. (A judge back then said that when he was a prosecutor, he would never pick a man for the jury who appeared coatless because that person was showing disrespect to the criminal justice system.) I should not have been concerned. The co-counsel was a splendid attorney, and his client was acquitted. Mine got a hung jury.

There was an exception to the suit convention in court. When I started, some courtrooms were not air conditioned, and on the hottest days of a sweltering New York City summer, the judge often allowed male attorneys to take off their jackets. Prosecutors and defense counsel draped their coats on the backs of chairs. I did not. I wanted my clients to see me as a professional representing him and divorced from the courtroom crowd.

I always wore a suit while in court, except for one time. I had bought for other occasions a stylish double-breasted blue blazer that had cost more than anything I had ever bought before. The accepted accompaniment to this jacket then were gray pants, but I had bought fashion-forward taupe trousers to wear with the jacket. In my humble opinion, I looked great in this ensemble. I wore this to the office one day when I had no scheduled court appearances. That afternoon I got a call from a court clerk telling me a defendant had been brought in on an old warrant and that the judge wanted me to represent him. I felt uncomfortable going to court in my splendid attire. It wasn’t a proper suit after all. After the proceeding concluded, the judge called out my name and said that he wanted to talk with me. I was nervous when I went up to the bench. My anxiety increased when the judge said that he noticed what I was wearing. But he continued by saying that his tailor had been trying to get him to wear pants like mine when he wore a blazer and asked where I had bought them. Phew. Even so, I only wore suits when I had a court day, and my sense of decorum was upset years later when I volunteered in some public defenders’ offices around the country only to find that the lawyers regularly wore sports coats to court.

My mostly frequently encountered formal dress codes have been to play golf and tennis. My summer community has such rules. I quickly adapted to the golf code since I already owned appropriate shorts and shirts although they were bought at discount places, not the pro shop. However, tennis at one place was a bit more bothersome because that club harkened back to stuffier times and required all-white attire. I had to buy the whites and could not wear the same colorful shirts I wore on the links. But once I made the purchases, which were not overly expensive, I easily followed the dress code, even though my play was hardly of Wimbledon quality.

Of course, golf and tennis dress codes are a class thing, but even more so are the events that require black tie. (I never saw anyone in a business suit turned away from such formal occasions, but the many glances at the underdressed would have made some people at least a bit uncomfortable.) This was not a problem since I had a second-hand tux that I inherited from the spouse’s father. Later I expanded my formal attire by buying my very own tux at a deep discount. I haven’t been invited to a black-tie event in a long time, but I might have to turn it down if I got such an invitation. I find that where I store my formal clothes is a magic closet that simultaneously shrinks the waist and lengthens the legs. It’s a mystery how that can happen, although the spouse has theories to explain it. I don’t care to listen to them.

Restaurant dress codes, however, often irked me. I liked my suits and ties for which I had carefully shopped always seeking fashion and distinctiveness that I could afford. (You never would have caught me in those Brooks Brothers suits resembling a uniform. I guess many men feel most secure if their clothing looks like everyone else’s. And, I also avoided the clothier because I knew the Civil War connection between the emergence of “shoddy” and Brooks Brothers.  After wearing suits fifty or more hours a week, I wanted to wear something else when going out, but some “fine dining” establishments required “gentleman” to wear a coat and tie. When making a reservation, I would inquire about the dress code. I remember when a relative was visiting, and I thought it would be exciting for him to go to brunch at a restaurant in a fancy hotel that overlooked Central Park. The relative told me that he had not brought a traditional coat and tie and only had a leisure suit (remember that hideousness?) with him. The reservation manager told me that a coat and tie were required. I asked if the leisure suit would suffice. I could feel the icicles shot through the telephone wires into my ear as the manager, I assume wearing black tie, said, “There certainly will not be any leisure suits in my restaurant.” I never dined in that place with or without that relative.

Dress codes may have been irksome on occasion, but one time I got offended because of a dress code. Our kid was in a private school that followed the New York practice of giving the little darlings a week off from the rigors of second grade for the week of Presidents Day. The spouse and I, however, with our academic jobs, had to work this week. Furthermore, we did not have the money to go skiing in St. Moritz, Aspen, or even Stowe, or perhaps go to the beaches of the Bahamas or the like as the moneyed kids did with their parents. Instead, we opted for a meager substitute. I would take the kid cross-country skiing for a three-day weekend to some place within driving distance. Thus, one year we were off to an old resort lodge that seemed to be gasping for its last breath in a world of jets. But the place had extensive grounds and promised our skiing.

The weekend, except for one thing, was a bust. The resort may have advertised cross-country skiing, but the weather was in the 50s. When it was not drizzling, fog came in. There was no snow. I tried many things to keep the kid occupied. We watched the movie Turner and Hooch, which the resort was showing. The kid hated it (drooly dog was disgusting), and we left. We went to the ice skating rink, where I was uncomfortable when a divorced woman, with a largely neglected daughter, tried to pick me up. And my kid, I found, hated ice skating. We went bowling. The kid was afraid that a finger would detach in the bowling ball. We did go on a hayride and an outdoor cookout, which the kid found acceptable.

In hindsight, there was one blessing. I had seen an ad in The New Yorker for homes being built in a nearby resort community. We went there to fill up an hour or two. I liked the homes and the feel of the place. I told the spouse that it might be a place to spend some time in the summer. We rented there that following summer, and that community has been our summer home now for over thirty years.

And then there was the lodge’s restaurant. The resort was expensive for our budget, but it included meals. I counted on not spending on food elsewhere. Because it advertised outdoor winter activities, including, of course that absent skiing, I had packed only for all that winter fun. However, when I got to the dining room for the first evening, a figurative bar came down across the threshold. I needed to wear a coat and tie. I had on hiking boots, a green corduroy shirt, and jeans, which I had thought appropriate for the winter fun. A staff member looked me up and down, went to a closet, and pulled out a jacket that was several sizes too large, and a tie I don’t remember, but I know that it did not knot well under the collar of my green corduroy shirt also packed for winter fun. The jacket was of a polyester fabric that I had never worn before. It was brown, a very unattractive brown. When I threw it on the bed, it made a pile that I thought the large, slobbering dog Hooch could have left on the pavement. Yes, people stared as we headed for our table, perhaps because we were a mixed race family at a time when many people had not seen one like us, but I am also certain that my attire offended them.

When the time came to leave, I left the coat and tie in our room figuring that the staff would return them to the closet of punishment for those unfortunates like me who came unprepared. Then a week later, a package arrived at home. It was from the resort. I opened it and saw the jacket with a note that I must have left it behind. I was offended that anyone might think I would own such a poopish-colored polyester jacket. I thought I was doing a favor to some other customer by not returning it, so I threw it in the trash.

We have all encountered dress codes, whether formal or established by convention. And we all know that dress codes change. They aren’t now what they were ten, twenty, or thirty years ago. I expect that they will be different, maybe even in the Senate, some day. In spite of such history, there will always be people who will object to changes and say that we have to uphold “standards.” When I hear that I think back to what I have read about the Rainbow Room, the art deco masterpiece sitting atop one of the buildings of Manhattan’s Rockefeller Center. When it opened, it had high standards. It required white tie for gentlemen. But the Rainbow Room could not maintain that standard, and soon found itself admitting men wearing black tie.

The Primaries Rule

We tend to think of our country as a democracy, where “The People”– through the majority of the voters–rule. This, of course, is not completely true for many aspects of our government. The United States Senate is a prime example. The candidate who gets the most votes in a state becomes the Senator. This seems democratic enough until we realize that a minority of voters nationwide choose the majority of the Senators. Since each state, no matter how large or small its population, gets two and only two Senators, the overall composition of the body is markedly malapportioned. This, of course, is mandated by the Constitution.

Other less-then-democratic rules, however, are not constitutionally mandated but result from various political strictures and practices. Thus, the filibuster rule grants a minority of the already malapportioned Senate to dictate outcomes. In both Houses, committee chairs can determine what can be voted on, and this can defeat the will of the majority in those bodies. And so on.

We know that a minority of the voters can elect a president. That is partly because of the electoral college, which our constitutional founders gave us. In addition, however, the nonconstitutionally-mandated decision rule increases the likelihood of a minority president. Most states have decided that all its electoral votes will go to the candidate who gets the most votes. This is not constitutionally required, and at the beginning of our Republic, it was not the usual method for allocating electoral votes. Instead, states often split those votes, but now only a few states do that. So if I win a state with a large number of electors by a handful of votes, but I lose a state with a lesser number of electors by a significant amount, I may be behind in the popular vote but ahead in the crucial electoral count. The Constitution is silent on this outcome.

There is another decision rule, however, that can affect whether we have a minority president: the presence of third parties. In key swing states in 2016, Trump won not by getting a majority of the ballots. In most states he did not poll better than the Republican Romney had four years before. Instead, the third-party share of the votes increased, and Hillary Clinton got fewer votes in some states than Obama had four years earlier. In Pennsylvania, Wisconsin, and Michigan, Trump got the plurality, not the majority, and got all the electoral votes. We don’t know, of course, what would have happened had the third parties not been on the ballot, but we should realize that the rules allowing candidates on the ballot matters. The more candidates on the ballot, the less likely it is that “The People”–i.e., the majority–control. These rules matter and vary from state to state, but few of us know what they are or whether they should be changed.

Primaries, especially in safe districts, also affect majority rule. By a “safe” district, I mean those in which it is all but certain that one party will win the general election. I reside in a place where a Democrat always wins the House, the state legislative, and the city seats. The November election is a mere formality. The only truly important election is the primary because it will determine which Democrat will run. I am hardly unique in living in such a place. A few years back I read a study with a sobering statistic: while 25% of the House seats were safe several decades ago, that number had increased to 60%. With unrestrained and more sophisticated gerrymandering, that percentage is even higher now.

Almost everywhere, the turnout for primaries is lower than for general elections, even when the general election is functionally meaningless. This can mean that a tiny fraction of the people determine who will have governmental power, but the situation can be even more striking when a primary is contested with several viable candidates. The rules are not uniform for deciding the outcome of such contests. I have voted under several different systems in New York City alone. In some primaries, a candidate polling over 40% moves on to the general election, but if they do not reach that threshold, another primary is held between the top two candidates. “Ranked choice” is now used for some New York primaries, and I would explain that to you if I could, but I am like most New Yorkers who, even though voting to adopt this system, do not fully understand how it works. But in some New York primaries, a simple plurality controls. (Oh, yes, New York City is a complicated place.)

New York has just completed primaries for the House of Representatives. New districts were drawn as a result of the last census which caused the state to lose one seat in the national legislature and made for some interesting primaries. Two sitting House members were thrown together in one district and faced each other in one primary. Another district did not have an incumbent and a half-dozen interesting candidates ran for the Democratic seat in the plurality-controlled contest. The winner polled 25.7% garnering fewer than 17,000 votes. And in what is almost certainly a safe seat, he will be going to the House in January. In other words, 17,000 people will have picked the new Representative. “The People,” I guess, have spoken.

Democracies Die When Elections Don’t Matter

Is our democracy at risk? Many recent discussions have focused on that issue with questions about the meaning of “democracy.” This set me off looking for a definition, but it turns out that the concept is not entirely straightforward. I found not a single definition, but varying ones.

One dictionary said democracy was “government by the people, especially rule of the majority; government in which the supreme power is vested in the people and exercised by them directly or indirectly through a system of representation usually involving periodically held free elections.” Another source said: “a system of government by the whole population of all the eligible members of a state, typically through elected representatives.” A third source: “the belief in freedom and equality between people, or a system of government based on this belief, in which power is held by elected representatives or directly by the people themselves.”

          These definitions raised all sorts of questions in my mind. Democracy is government by “the people,” but what is the definition of “the people”? Is it the same as “the eligible members of a state”? The whole population cannot vote in an election; Ten-year-olds don’t get to cast a ballot. Isn’t it important to define what the “eligible members of a state” ought to be for a democracy? If the franchise is restricted to a tiny part of the society, but the leaders are picked by majority vote of that small group, is it a democracy? I guess it is, at least according to one definition, but not in my mind.

          One democracy definition emphasized majority rule, but I have heard of the “tyranny of the majority,” and wondered if we would consider a country democratic that horrendously oppressed or denied access to the ballot to all those not in the majority. (“No democracy can long survive which does not accept as fundamental to its very existence the recognition of the rights of minorities.” Franklin D. Roosevelt.) And, if a system selects representatives with a plurality but not a majority, is it not democratic or is it a lesser form of democracy?

          One democracy definition said “free elections.” That is not a self-evident phrase. I was not sure how I would define it, or if it could be defined except by negative examples.

          Even though I felt as if I would know a democracy when I saw it, I was not sure that it could be defined. Part of the problem is that the definitions, like most definitions, were binary—something was either this or not this. Something was not “sort of” this or a “better or more complete version” of that.

          The third definition included a component the others did not when it said a democracy was a system of government based on the belief of equality among people. It seems to me that one facet of a better democracy is that the ability to vote is widespread, indicating equality among the people, and that all voters’ votes count the same, again indicating equality among the people. The elected representatives of the society are then chosen by determining who had the most votes cast in an election where all the voters have equal access to cast ballots and all votes carry equal weight.

          I also noticed an important absence in all the definitions. They had agreed that a representative democracy had the electorate picking people to represent them in government. But the definitions do not say that the people or the electorate choose the form of government in which their representatives will govern. But surely, the structure of the government has something to do with democracy. And “democratic” countries can be structured in ways that seem to make them more or less democratic. The U.S. Constitution contains many non-democratic features which assure that all votes do not have equal weight. One example: Because each state selects two Senators the votes in small states count more in constituting the Senate than votes in large states.

          But even so, I think that most people believe that in a democracy elections matter. We, the People, no matter how we define the People, should be able to change those who represent us through our elections, and therefore voting is important. Of course, that is frequently not true in our country. Our presidential elections are an example.

          I vote in New York, but it is clear long before the voting who will win the presidential race in my state. The result will be the same whether I or ten thousand others vote or not. The election is a mere formality and voting in a New York presidential race does not really matter. Instead, the relative handful of “swing” state voters actually control who will be president. Their votes count a lot more than mine, and a basic principle of democracy is undercut.

But now there are movements to make many more elections mere formalities, and they present basic threats to our democracy.

(continued Dec. 20.)

Democracy: Indexed and Flawed (Again)

(When I have written longer essays, I have posted segments over multiple days thinking that readers might not read all the way through if it were all posted at once. Followers of the blog can read in its entirety as the essay goes online, but it has been pointed out to me that those who find such postings through a search engine may find only a part of the essay and have difficulty reading the essay from start to finish. Recently when I posted such a multiple-part essay, I have then posted the essay in its entirety after the segments have concluded so that it can be read from start to finish by those wishing to do so in one viewing. Almost always the blog’s content is new, but on occasion when it seems timely, I have repeated a past blog, which I am doing today. When I do so, even if it originally was posted over several days, I will post all of it at once. It is my Again project.)

(With waves passing through the states passing and considering legislation to make voting more difficult in the name of election security, it has made me think again about our “democracy.” As a result I revisited an earlier post not about such legislative activities but about anti-democratic structures built into our system of government.)

(First posted March 4, 6, and 9, 2020)

 I had not heard of the Democracy Index until a friend recently mentioned that the United States was listed on it as a “flawed democracy.” I later learned that the index is produced by the Economist Intelligence Unit, sister to The Economist magazine.

 The EIU bases its report on sixty indicators grouped into five categories (electoral process and pluralism, functioning of government, political participation, political culture, and civil liberties) yielding a numeric score capped at 10.00. Norway, with a score of 9.87, leads the list followed by Iceland (9.58), Sweden (9.39), New Zealand (9.39), and Finland (9.25.) Countries with scores of 8.0 to 6.0 are listed as flawed democracies, and the United States was given a 7.95 score.

This made me wonder about how I or my fellow Americans would define “democracy.” One dictionary said democracy was “government by the people, especially rule of the majority; government in which the supreme power is vested in the people and exercised by them directly or indirectly through a system of representation usually involving periodically held free elections.” Another source said: “a system of government by the whole population of all the eligible members of a state, typically through elected representatives.” A third source: “the belief in freedom and equality between people, or a system of government based on this belief, in which power is held by elected representatives or directly by the people themselves.”

These definitions raised all sorts of questions and thoughts. Democracy was government by “the people,” but what was the definition of “the people”? Is it the same as “the eligible members of a state”? The whole population cannot vote in an election. Ten-year-olds don’t get to cast a ballot. Isn’t it important to define what the “eligible members of a state” ought to be for a democracy? If the franchise is restricted to a tiny part of the society, but the leaders are picked by majority vote of that small group, is it a democracy? I guess it is, at least according to one definition.

 One democracy definition emphasized majority rule, but I have heard of the “tyranny of the majority,” and wondered if we would consider a country democratic that horrendously oppressed all those not in the majority. And, if a system selects representatives with a plurality but not a majority, is it not democratic or is it a lesser form of democracy?

One democracy definition said “free elections.” That is not a self-evident phrase. I was not sure how I would define it, or if it could be defined except by negative examples.

Even though I felt as if I would know a democracy when I saw it, I was not sure that it could be defined. Part of the problem is that the definitions, like most definitions, were binary—something was either this or not this. Something was not “sort of” this or a “better or more complete version” of this. The Democracy Index, however, accepts a more inclusive notion of democracy. Many societies are democratic, but some are more democratic than others, and I probably thought along similar lines.

I did think, however, that the third definition included a component the others did not when it said a democracy was a system of government based on the belief of equality among people. For me, I realized, a facet of a better democracy is that the ability to vote is widespread, indicating equality among the people, and that all voters’ votes count the same, again indicating equality among the people. The elected representatives of the society are chosen by determining who had the most votes cast in an election where all the voters have equal access to cast ballots and all votes carry equal weight.

I also noticed an important absence in all the definitions. They had agreed that a representative democracy had the electorate picking people to represent them in government. But the definitions do not say that the people or the electorate choose the form of government in which their representatives will govern. But surely, the structure of the government has something to do with democracy. And “democratic” countries can be structured in ways that seem to make them more or less democratic. If our government is a flawed democracy as the Democracy Index asserts, part of the reason is that our governmental structure makes votes unequal. Our form of government means that some Americans count much more than others in choosing those who run the country. We are not, and cannot, be equal under our form of government. And the people of today have not chosen the structures causing inequality and a lesser form of democracy. Our forebears did that.

While the Democracy Index lists the United States as a flawed democracy, that categorization will be difficult for many of us to accept. Meanwhile, many who might entertain the idea of that limitation will assume that we are placed in the defective bin because of Trump’s election and his autocratic actions. The Democracy Index, first published in 2006, however, initially listed the United States as a flawed democracy in 2016 before Donald J. Trump became president. Trump may be the result, but he is not the cause, of a flawed democracy.

And although we may mouth those Fourth-of-July words—government of the people, by the people, and for the people—a little reflection shows that we don’t really believe them. Just look at the polls about confidence in Congress, for example. If we thought that government is of, by, and for us, we should have great confidence in our governing officials and bodies. We don’t. If the U.S. were truly a good and strong democracy, would approval polls for Congress hover around the twenty percent mark?

Perhaps the surprising aspect of the Democracy Index is that before 2016 it listed us as fully democratic, but we have always had important problems that conflicted with a fully functioning democracy. We often repeat Lincoln’s of, by, and for formulation, but if our government was so good, how was it that when he uttered them, he was speaking at a cemetery that represented the ongoing slaughter of a civil war? And, of course, the “people” then did not include women, blacks, or Native Americans.

We have progressed, but our democracy has never been even close to perfect. Our Constitution has served us well in many respects. It formed separate states into one nation that has endured, but that does not mean that the Constitution is without flaws. It permits governments to take actions to undercut democratic values, perhaps something that this blog will explore more in the future, but it also created a structure with anti-democratic features, structures that make our country increasingly undemocratic.

We certainly are aware that our method of selecting our president is not fully democratic. If democracy requires that all votes be counted equally and the person with the most votes wins, then the candidate with three million fewer votes than the rival would not become president, but under our semi-democracy, that was the result in 2016. (I have previously written about the electoral college including on April 10, 2019, and on October 28, 2020 https://ajsdad.blog/?s=electoral.)

The electoral college, however, is at least roughly democratic in that each state’s electoral votes roughly mirror its population size. The Senate is another story.

Within each state, the election for Senator is democratic. Every vote in Texas, for example, counts equally in choosing Ted Cruz as Senator, but within the country, votes for Senators are not equal. The Constitution allots Texas two senators. It also gives Wyoming two Senators even though the population of Texas is about fifty times the size of Wyoming’s. In other words, each Wyoming vote for a Senator counts as much as fifty voters in Texas. Hardly democratic.

And the Senate will be increasingly undemocratic. I don’t know the initial source of this statistic, but I have seen it in several publications: By 2040, 70% of the population will live in the fifteen largest states and will, therefore, account for thirty Senators while 30% of Americans will have 70% of the Senate.

Of course, even though an ever-smaller minority of the population will control the Senate, that does not mean that that minority will be able to legislate for the rest of us. The House of Representatives, even with partisan gerrymandering, more accurately reflects the population trends of the country. (Unrestrained gerrymandering is something for future consideration here.) Senators representing a small portion of the population, however, will be able to stop legislation, and that minority will be able to confirm judges, cabinet officers, and other federal officials. The majority of the country will have even less power than it does now as the Senate becomes more skewed, or we might say, the cracks in our democracy will become chasms.

You might question whether the population trends reflected in that 2040 prediction will continue. People are leaving high-cost-of-living states and moving elsewhere. It is true that California out-migration has exceeded its in-migration? That does not mean, however, that its population has declined. Instead, while the rate of its growth has slowed to a trickle, it still grew by 141,300 from 2018 to 2019, a 0.35% growth rate. However, Wyoming, the state with the smallest population, has fewer than 600,000 residents. Even if –miraculously — Wyoming grew by 20%, it would add fewer people to its population than California now does. Wyoming would continue to fall behind in this population race, but it will still have the same senatorial representation as California.

It is true that New York, with the fourth largest state population, has lost residents [and with the results of the 2020 census in, has now lost a seat in the House], but so have the small states of West Virginia and Alaska. The New Yorkers who leave do not get in their modern Conestoga wagons and go to these small states. Significant numbers are not heading to West Virginia, Alaska, or even Nebraska, whose growth rate from 2017 to 2018 was only slightly above California’s at 0.6%.

The population disparities among the states will only increase. At the end of the coming generation perhaps 20% of the population will select the Senate’s majority.

You might also say that the increasingly undemocratic representation in the Senate is what the founders of the country created. Yes, of course, those who wrote and adopted the Constitution mandated that all states, big or small or in between, would get two seats in the upper house. And perhaps that provision was necessary to get the thirteen states to meld into one country, but that, of course, does not mean that it is right for today. Those founders, unless they were on substances much different from the copious amounts of cider they drank, could not have imagined states with populations approaching 40 million.

The Constitutional framers did not create a Senate with hopes that a small portion of the population would control the Senate. A national census had not been undertaken when the Constitution was drafted, but the drafters’ views of the relative populations of the states can be seen in the Constitution’s Section 2 of Article I where the document prescribed the allocation of Representatives for the original House. New Hampshire would have three, Massachusetts eight, Rhode Island one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three, for a total of sixty-five.

The framers thought that the three largest states (this calculation included the infamous three-fifths clause) would have twenty-six representatives, indicating the belief that Virginia, Massachusetts, and Pennsylvania had 40% of the population. Both Maryland and New York were allocated six Representatives. These five states, the framers believed, had about 57% of the population. Together, of course, they had ten seats in the twenty-six-person Senate, or about 38% of the Senators, while the states with 43% of the population would have 62% of the Senators. This, of course, was an imbalance, but it was nothing like the coming disparity where 50% of the population is expected to live in just eight states by 2040. They will only have 16% of the Senators, and, thus, a minority of the population will have 84% of the Senators. 

Whether or not two-Senators-per-state is a good provision today, it is what we have because of what happened in 1787. It is not because we today have determined it is the best policy for our governing structure. But even if almost all of us concluded that we should have some other way of allocating Senators, it wouldn’t be changed. Of course, the Constitution can be amended, which requires approval from two-thirds of each house of Congress and ratification by three-quarters of the states. The states are treated equally, and the lack of approval from thirteen states, no matter what portion of the population they contain, would doom an amendment. The amendment process in general is difficult, but in reality it is impossible for changing the Senate’s composition. The Constitution’s amendment provision, Article V, says that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” I don’t think that I am being overly cynical by concluding that Alaska and Wyoming and other states would not willingly give up their “equal” Senatorial representation.

There is another possibility for ameliorating the increasingly undemocratic governmental structure. Large states such as Texas or California could divide themselves into four or six separate states, each with two Senators. The Constitution’s Section 3 of Article IV, however, says that such division can only be done with the consent of Congress. Again, I don’t think that I am being overly cynical by concluding that the Senate, where the overwhelming majority of Senators will come from the smallest states, is not going to approve the admission of such new states into the Union.

So . . . a smaller and smaller minority of the population will select a majority in the Senate. What, if in addition, the electoral college deviates further and further from the majority’s vote? Will “the people” see their government as legitimate? With these governmental structures unchangeable within our Constitutional confines, what will then happen?

The famed philosophers John Lennon and Paul McCartney seemed to advocate a mind change instead of a revolution when change might be desirable but difficult: “You say you want a revolution/ . . . But when you talk about destruction/ Don’t you know that you can count me out/ . . . You say you’ll change the constitution/Well, you know/We all want to change your head/You tell me it’s the institution/Well, you know/You better free your mind instead. . . .” But at least for me, I don’t think I can change my mind so that rule by an increasingly small minority in my country will really be all right. I don’t want to live in the equivalent of a banana republic.

But, then, what’s left? With no constitutional method for change, perhaps only the words of Jefferson show the path to a better democracy: “I hold it that a little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical. . . . It is medicine necessary for the sound health of government.”

Or perhaps we should contemplate the words of Robert Kennedy: “A revolution is coming—a revolution which will be peaceful if we are wise enough; compassionate if we care enough; successful if we are fortunate enough—but a revolution which is coming whether we will it or not. We can affect its character; we cannot alter its inevitability.”

We should start considering the extra-constitutional changes we are assuredly going to face.