The flaws of the US Constitution not only prevent us from taking needed action on urgent crises, they also distort our self-image as a country.
The first post in the Fixing the Constitution series on ChangeShapers.blog.
When we dare to peek between our fingers at the predicted impact of climate change, the reality is horrifying and depressing: tens, maybe hundreds of millions dying, hundreds of millions forced to migrate, ecosystems disrupted or collapsing. And while the provisions to fight climate change included in President Biden’s Inflation Reduction Act of 2022 are significant, it has been striking how slow and halting America’s action on this front has been in comparison with much of the industrialized world.
So why don’t Americans care? We don’t we act? It is beyond frustrating to see that seemingly half the country votes for a party that promotes the idea that climate change is a hoax and advances policies that will actively make the situation worse. How is real progress possible when half the population are committed to this delusion as a core part of their political identity?
Except they aren’t. Sure, too many people deny the reality of climate change, but it’s way under half. According to a 2022 Pew Research Poll 69% of Americans favor the US taking steps to become carbon neutral by 2050, while only 28% oppose. Similarly, 67% want the US to prioritize developing renewable energy, while 32% want us to prioritize fossil fuels. Even among Republicans and Republican-leaning independents, 42% want us to prioritize renewables, including 67% of Republicans under 30.
So why is it that, in the increasingly likely event that Trump and the Republicans take control of the federal government again this fall, it is a certainty that their energy policies will reflect the preferences of less than a third of the population? The biggest part of the blame can be laid on the comprises, intentional decisions and random oversights made by a bunch of bewigged rich men in Philadeliphia in the summer of 1787. And if we don’t manage to correct these 237-year-old mistakes soon, there will be hell to pay for all of us.
How the Constitution Thwarts Action on Climate Change
When it was ratified in 1789, the US Constitution created the most democratic government on the face of the Earth. But in 2024, our government stands out among its peers in the developing world in how anti-democratic it is. This is due to a variety of causes: the ideology of the Constitution’s framers, compromises made between competing interests at the original Constitutional Convention, changes to the country that were unforeseeable at the time, and simple oversight.
Let’s take the example of Climate Change policy to see how the elements of the Constitution have continually thwarted the will of the American people:
- The Electoral College: Because the Framers distrusted regular voters (who, originally, were primarily white, property-owning males) to not be swayed by charismatic demogogues, they had the President elected by an Electoral College, whose members could be chosen by the states, with each state getting an amount equal to their congressional delegation. This created two anti-democratic problems: A) Because every state had two senators, states with small populations would have a disproportionately large vote, and B) Because the votes were grouped by state, a candidate could receive the most Electoral College votes while losing the popular vote (simply called, in most countries, the “vote”.)
This second scenario has happened four times, twice with huge impacts on climate policy. In 2000, Al Gore, author of a groundbreaking, bestselling book about global warming, won the popular vote. But instead of his climate policies, we got those of second-place finisher George W. Bush, champion of the oil industry and instigator of the Iraq War.
In 2016, Hillary Clinton won by nearly 2.9 million votes but was denied the Presidency by the Electoral College. Instead of her ambitious plans to reduce carbon emissions, we got Climate Change denier Donald Trump, who made the CEO of Exxon his Secretary of State and spun fantasies about reviving the coal industry. In both cases, the American people nade the right choice, but the Constitution overruled us.
- The Senate: To get representatives of small states to back the Constitution, the Framers gave each state two seats in the Senate regardless of population. In 2024, that means that California, with about 39 million people, has two senators, while Alaska, Idaho, Montana, Nebraska, New Mexico, North Dakota, South Dakota, Utah and Wyoming together have 20 senators with a combined population of less than half of California’s (about 17 million). The Weldon Cooper Center for Public Service at the University of Virginia recently estimated that, by 2040, 70% of the US population will live in the 15 most populous states. That means that 70% of the population will be represented by just 30% of the Senate.
Obviously, this kind of minority rule is inherently anti-democratic. But it is the attributes of many of the small states that cause problems for climate legislation. While a few small states are predominantly urban and/or progressive, many of them are dependent on extraction industries and their populations are disproportionately older, less educated and rural. In addition, low population states are easier to flood with PAC money to influence elections and legislation.
This leads to the current situation where Senators from low-population states block legislation and torpedo appointments of officials they fear will threaten the fossil fuel industry in contradiction the desires of the vast majority of the voters.
- The Supreme Court: In 2022, the Supreme Court ruled 6-3 that the Environmental Protection Agency could not regulate carbon emissions without a specific mandate from Congress, dealing a major blow to President Biden’s climate efforts. Five of the six justices in the majority were appointed by George W. Bush and Donald Trump, two Presidents who wouldn’t have even been in office if the will of the majority had been respected.
In addition, I crunched the numbers and found that none of Trump’s three nominees (Cavanaugh, Gorush and Coney Barrett) had been voted in by senators representing the majority of Americans.
There you have it: Our Constitution has given us three branches of government whose design allowed them to be captured by the anti-Climate Action minority. If, on the other hand, we had a federal government that represented the majority we would be decades ahead addressing the problem. The world would almost certainly be cooler, our weather calmer, our sea levels lower, and fewer migrants would be on the move. This is the very real physical manifestation of our political dysfunction.
And, of course, similar dynamics are at work regarding other issues such as racial disparaties, immigration, and abortion.
Why is Nobody Fixing This?
So why don’t we fix the anti-democratic aspects of the Constitution? Other countries change their constitutions all the time or even write whole new ones. Why don’t we hear our politicians, especially Democrats who have the most to gain, talk up Constitutional reform?
As I see it, there are two related reasons. One is that the amendment process outlined in the Constitution is so onerous. Typically, both Houses of Congress must approve an amendment by a two-thirds vote, and then the amendment must be approved by the legislatures of three-quarters of the states. Alternatively, instead of being initiated in Congress, the process may begin with a Constitutional Convention, called by two-thirds of the state legislatures. This has never happened.
With our politics so divided, it is difficult to imagine two-thirds of Congress or state legislatures agreeing on anything, much less reforms that would remove unfair advantages for one of the major parties. Similarly, the fourteen states with a population of under two million could block any amendments that remove the disproportionate power their voters currently wield in our system.
The second is that our elected officials tend to be focused on goals they see as achievable in the short term. Most of them want to be able to show their constituents that they can deliver results, which is, in general, a good thing. But those results are extremely limited by the environment created by the Constitution, so a more long-term, structural focus is needed as well.
How We Can Fix the Constitution and Solve Problems Again
It is important to remember that, despite the onerousness of the amendment process, the Constitution has been successfully amended twenty-seven times. Many of the amendments served to make our government more democratic, eliminating slavery, giving the vote to women, forbidding racial discrimination in voting, lowering the voting age, and giving the people of the District of Columbia the right to vote for President.
Almost all of these reforms at one point seemed impossible. The 19th Amendment, guaranteeing women the right to vote, wasn’t passed until 74 after the founding of the suffrage movement and 44 years after it was first introduced in Congress. American history has seen long periods without any successful amendments, punctuated by bursts of reform, most recently in the era of the Civil Rights movement of the 1960s.
We are long overdue for another such burst. But what should the reforms be and how can we make them happen? That’s what the Fixing the Constitution series is about. I’ll share possible amendments, how amendments have been successfully ratified in the past, and what efforts are afoot today. I invite you to share your own knowledge and ideas and perhaps together we can help make our government reflect the wisdom of the people before it’s too late.
Read more fact and fiction about social change at ChangeShapers.blog