Peter Suber, "Second Thoughts, Population Changes and Constitutional Amendments"

Second Thoughts on
Population Changes and Constitutional Amendments Peter Suber, Philosophy Department, Earlham College
Here are some thoughts I've had since I published this essay in 1987.

I was first moved to do the research for this essay while living in Illinois during the final months of the ratification period for the Equal Rights Amendment. I supported the amendment strongly and was ashamed of my state for not ratifying it. In fact, Illinois turned out to be the most populous of all the non-ratifying states. I didn't know much about the demographics of the amending process at the time. I knew that amendments had to be ratified by three-fourths of the states to become law. But I naively assumed that this translated, roughly speaking, into three-fourths of the people. Moreover, I thought I read a poll showing that more than three-fourths of the people did favor the ERA. So why wasn't that good enough?
It turns out that no poll ever said that the ERA was favored by 75% or more of Americans. I conclude this from the tables published by Jane Mansbridge in her book, Why We Lost the ERA (University of Chicago Press, 1986). Perhaps the poll I read referred only to Americans of a certain region or party. Or perhaps I dreamed the whole thing. Either way, my erroneous theory that 75% of Americans favored the amendment, when 75% of the states didn't, gave me the energy to do the work for this essay. When the ERA finally expired unratified, I was sure it had been defeated by rural conservatives in numerous thinly-populated states overruling the few giant states containing a supermajority of Americans. It turns out that I was wrong about the ERA but right about the amending power vested in the thinly-populated states. Or, this federalist exception to democracy could not be the whole story behind the defeat of the ERA. I still think that it explains part of the story (e.g. why most of the heavily populated states ratified it and why most of the non-ratifying states were lighly populated) and that it explains why the odds are against any resubmitted ERA.
I wrote this essay without the aid of computers. I took the census figures from hardcopy books, transcribed them with a pencil, and did all the arithmetic on a hand calculator. By the time I finished the analysis, around 1983 or 1984, I had my first word processor. But then I had to key in all the numbers, fallibly. Moroever, I had to rekey the essay for the online edition, since my original was in an obsolete file format and the journal didn't retain an electronic copy. In short, there are probably errors in the appendices. Someone should download the data from the Census Bureau's web site, write a program to do the sorting and the math, and verify my results. At the same time someone could bring the analysis up to date, at least through the 1990 census. For other tasks requiring some scholarly energy, see the new figures I added (July 1999) to the end of the section on the 1980 census in Table 1. Similar figures could be provided retroactively for all earlier census decades. I describe a few other tasks for future scholars in the text introducing Table 3.
(July 1999.) In 1987 I favored a national referendum as the best overall remedy. The only question I seemed to leave open is which variation on the theme is best. I'd like to disavow this recommendation and shift direction slightly. I now favor weighing state ratification votes by state population. This would solve the problem of federalist minority amendment and veto as well as a referendum would. But it is more consonant with those parts of the essay that promise to fix this problem without criticizing or abandoning the republican form of government. Now more than in 1987 I lean towards Madison's preference for representative over direct democracy. Our representatives did not save us from Prohibition, but they have saved us (so far) from constitutional amendments banning most abortions, banning flag burning, and permitting school prayer. I'm grateful for the extra layer in the process in which thoughtful people, sometimes courageous thoughtful people, can save us from antidemocratic zealots who would tear down the wall of separation between church and state. No doubt this layer of representatives often serves us ill (most recently in the Clinton impeachment), but when the stakes are highest, as in constitutional amendments, they tend to rise to the occasion —just when large segments of the electorate run to fearful oversimplification. Clearly, the thrust of my argument is that this remedy is needed to enhance democracy, and give large supermajorities their way, not to save us from the people. This is a case where republican government is more democratic than direct democracy.
(July 1999.) It was clear to me in 1987 that small states would not ratify an amendment to solve this problem, since by definition that would shift power away from them toward the large states. It's just as clear to me now. In fact, I had a little crisis of conscience in 1987, wondering whether I should publish the essay and make clear to strategists for causes favored by lightly populated states just how much more power they had than the framers intended. The same thoughts ran through my mind this week as I prepared the HTML edition. But I decided that the truth couldn't be hidden forever and that making it public gave friends of democracy, even if they reside in small states, a chance to understand the issues and fight the good fight. But I still worry. The data in the essay help strategists for antidemocratic causes and antidemocratic strategists for good causes. The only justification for doing this is to use the same data to help fight for democracy at the same time. This means to work for a remedy, which (until the national population distributes itself evenly among the states) will have to be an amendment to Article V of the constitution. I hope you'll help. Discuss the relative merits of a national referendum and the weighing of ratification votes by population. If the public discusses and understands the problem, I think we'll be happier with the outcome, whatever it is, than if those who benefit from the current arrangement are allowed to use the amending power with the confidence that comes from knowing that their opponents do not understand.
By the way, it would be a mistake to assume that the beneficiaries of this power are conservatives, pure and simple. The beneficiaries are those who reside in the less populated states. They are more often conservative than the residents of the larger and more urban states. However, there are conservatives in the cities and liberals in the country. Moreover, on most issues today, U.S. rural culture tends to be conservative. But in another day, and on other issues, it has been and may again be the other way around. The winning strategy is not to ask conservatives to help liberals, but to ask small states to play fair in the amending process. I think most Americans who reside in small states will accept this appeal.
The version of the essay I submitted to University of Michigan Journal of Law Reform was put in the blender by the student editors. Some of their alterations were welcome and wise. Most were not. I accepted them as the price of admission. But the resulting essay has a very stuffy "law journal" tone that is not my own. For the time being, I have retained nearly all their idiosyncrasies, partly because the online version claims to be same as the printed version and partly because I haven't had time to overhaul it. I even retain the capitalized words "Nation" and "Union", which to me puts patriotism ahead of grammar. So far I've only altered the small number of sentences which are positively false or misleading in the student edition. One day I'd like to make a "plain English" version to get the message out.

Go to the essay itself.