Addressing Structural Change
The Founding Fathers introduced and crafted several structural reforms they believed would improve upon the notion of a republican form of government. But over time, as our country became more educated and more inclusive, some people regard such reforms to be antithetical to a fully functioning democracy.
The Electoral College
According to Richard Cohen, “the electoral college is one of those compromises layered into the Constitution to protect one special interest or another — slaveholders, small states — or a combination of the two.”1 Small states were “given additional power to prevent politicians from only focusing on issues that affect the larger states. The fear was, without this power, politicians would completely ignore small states and only focus on big population centers.”2 The result has been to give “disproportionate voting power to states, favoring the smaller states with more electoral votes per person.”3
Aside from this power bias, there is also the problem electors are not bound to vote for the person whom the population has elected. This is because the Founding Fathers “feared uneducated public opinion and designed the Electoral College as a layer of insulation from the direct voice of the masses.”4 Now, a remedy outside of a constitutional amendment has been proposed. It is an initiative called “The National Popular Vote Law” or the “National Popular Vote Interstate Compact.” This proposal would guarantee the presidency to the candidate who receives the most popular votes in all 50 states and the District of Columbia. To date, the compact has been enacted into law by 17 states and the District of Columbia – jurisdictions that account for 209 of the 270 votes.5 Naturally, opponents raise questions about the legitimacy or binding nature of the compact if a constitutional amendment eliminating the Electoral College is not forthcoming.
Either way, the Electoral College needs to be eliminated. If problems caused by continuation of the Electoral College continue to be protected by the Constitution, a person can be assured the American Republic will never be a true democracy. But the prospect for such change happening is virtually nonexistent, as the process for introducing change is extremely difficult. A change to the Constitution requires, for example, that two-thirds of both houses of Congress vote to introduce an amendment (or two-thirds of states can call a constitutional convention to propose amendments, a dangerous initiative given there are no limits on what might be changed once the convention is called). Then three-fourths (38 out of 50) of the states need to pass (or ratify) the amendment for the amendment to be adopted. With Trump and the Republicans controlling the presidency, Congress, and the Supreme Court – and such an even divide within the states and the parties themselves – change of the Constitution will not be forthcoming.
The Constitution provides Supreme Court justices with life-time appointments. The thinking of the Founding Fathers was this provision would act as a bulwark against the sway of public opinion that ultimately comes to be reflected in policies established by political parties and their representatives.
However, in the case of the United States, this may have had unintended consequences. A recent study found:
The average term length of U.S. Supreme Court justices is by far the longest among established constitutional democracies. With no limits on tenure, the average Supreme Court term since 1993 has reached 28 years — over twice as long as most peer countries — making the United States a notable global outlier.
People might not find this troublesome, thinking this was how it was intended. And that as a third branch of government designed to check and balance the other two, maybe it is
64