Actually there are likely many more, which is why the Constitution is amendable, but there are two that I want to discuss. Both are related to the oversized power wielded by people in low population states.
The first relates to the Senate. The New York Times calls it the "Small-State Advantage:" In the Constitution, under Article I Section 3, each state sends two senators to Congress. Sounds fair, right? Except that New York, California, and Texas, which combined represent about 1/4 of the population of the country, have 6 votes in the Senate, while the 31 smallest states (think Wyoming, Connecticut, Wisconsin, etc.), which combined represent another 1/4 of the population of the country, have 62 votes in the Senate.
Here is what this means: In the House of Representatives each state gets a number of representatives based on the population, so the largest state, California, has 53 and the smallest, Wyoming, has 1. Each of these 53 California Congressfolk represents about 715,000 Americans, while the one from Wyoming represents about 575,000. In the Senate, however, the votes of Senators Barbara Boxer (D-CA) and Dianne Feinstein (D-CA) each represent roughly 19 million Americans, while, the equally powerful votes of Senators John Barrasso (R-WY) and Michael Enzi (R-WY) each represent roughly 287,000 Americans. This means that a Wyomingan has 66 times (66 times. 66 times!) the power of a Californian in the United States Senate. Why have a separate legislative body where some parts of the country wield preposterously, laughably outsized political power?
Because the senate is a camel. A camel, according to Aaron Sorkin (or Toby Ziegler if you prefer), is "a horse built by committee." The framers who wanted to unite the East Coast under a single, centralized government following the Revolutionary War -- the framers who won out in the end -- needed to cut a compromise between the smaller colonies and the larger colonies. After all, they needed every colony to agree to submit to the authority of the Constitution. The largest state at the time was Virginia, population 747,000 in 1790 (according to the census that year), while the smallest was Delaware with 58,000. Because Virginia was 12 times the size of Delaware, the representatives from Delaware, Georgia, Rhode Island, and the other less populous states were worried that they would be swallowed up (politically speaking) by the likes of Virginia, Massachusetts, and Pennsylvania under a national government. They were hesitant to consent to the power of any document that would diminish the measure of colonial sovereignty they had enjoyed before the war. So Hamilton, Madison, and the other federalists resolved the issue with a bicameral legislature comprised of the House, where each state based its membership on population, and the Senate, where each state sent two senators and Delaware got 12 times the power of Virginia per capita. Otherwise there wasn't going to be a Constitution at all. The Senate isn't supposed to be practical-- it was supposed to be a political buy-off.
12 times the power is already outlandish, but 66 times the power is like finding out that the hereditary Queen of England still commands enormous direct power over English laws (which it was recently discovered that she does). It's unseemly and ridiculous.
It was not Virginia/Delaware forever, and it may not be California/Wyoming forever either, but its always going to be something. As long as there are states of radically different sizes it will always be an issue. And its not an issue of state power-- because what of California's diminished power, which is given arbitrarily to Wyoming, Wisconsin, and the rest? Representation in a fixed legislature is a zero-sum issue. It's base, inexplicable inequity.
Listen, I get it. The Senate is smaller, more personal. It's members are wealthier, more powerful, and more respected than representatives. Additionally, senators face election 1/3 as often as members of the House and, as a result, can more easily vote against public opinion without fearing impending defeat for themselves or their party. It is often said that the House is the fiery passion of the people which the Senate cools. This is a commendable dynamic, and a self-contained check on legislative power. But don't give Wyoming 66 times the cooling power of California for no reason. Keep everything else about the Senate, but base its membership on population rather than the number of states. This is change #1.
Change #2 also relates to population. It is a change proposed by, among others, Justice Scalia. It is, like the Senate, an issue of people from small states holding much, much more power than people from large states. The problem is that it is both way too hard and way too easy to amend the Constitution.
To amend the Constitution under Article V, an amendment needs to be 1) proposed and 2) ratified. To be proposed, either 2/3 of the House and Senate or 2/3 of the state legislatures must call for the vote. Then, to be ratified, either 3/4 of the state legislatures must approve of the proposed amendment or 3/4 of the states must hold ratifying conventions and pass the amendment.
Let's do the math on this: 50 states means that a proposed amendment can be defeated with opposition by just over 1/4 of the states (13 states). The smallest 13 states have a combined population of about 14 million. Since each state only needs 50.0000...001% of its population or legislature to vote against an amendment and register a "no," a constitutional amendment could be stopped by just over 7 million people, or about 2% of the country. Some would argue that this is protection against the tyranny of the majority.
They would be wrong, however. Protection against the tyranny of the majority is a necessary consideration in popular representation, but look what happens when the scenario is flipped. Since stopping an amendment requires 13 states to vote "no," that means that the most populous 12 states, which represent 183 million Americans (or almost 60% of the population), would not be able to stop an amendment to the Constitution even if the people of these states voted unanimously against it. This is insane. One arbitrary 2% chunk of the public can prevent changes to the Constitution, while a supermajority cannot? Far from requiring a national consensus as protection against the tyranny of the majority, a constitutional amendment could be easily passed by a minority of the population. This is imposition of a tyranny by the minority, where the majority and minority are determined by meaningless location of population.
But did it make sense at the time of drafting? Let's do the math again. When the Constitution was drafted there were 13 states and about 3.6 million people in them. At the time, 4 states of 13 could prevent an amendment. The four smallest states (Delaware, Rhode Island, Georgia, New Hampshire) had about 350,000 people combined, and since just over half of each could prevent "yes" votes that means that 175,000, or just under 5% of the population, could prevent an amendment. The three largest (Virginia, Pennsylvania, North Carolina), with a combined population of 1.6 million and 44% of the country, could not stop an amendment. This is less than 50%, but still not very good. In the Scalia interview linked above he says that the Article V amendment provision was "not originally a flaw," but became one as the size of states diversified. I disagree. It was bad drafting from the start.
Change #2: make constitutional amendments passable by a 3/4 popular vote.
Robert McKinley over at CardTrak published an excellent run-down of all the Consumer Financial Protection Bureau's victories over the last year. A few choice highlights:
GE Capital Retail Bank and its subsidiary, CareCredit are ordered in December to refund up to $34.1 million by the CFPB to potentially more than 1 million consumers who were victims of deceptive credit card enrollment tactics. At doctors’ and dentists’ offices around the country, consumers were signed up for CareCredit credit cards they thought were interest free, but were actually accruing interest that kicked in if the full balance was not paid at the end of a promotional period.
An opinion out of the Fourth Circuit issued last month, Gruber v. Creditors' Protection Service, nixed a claim that the statement which debt collectors are required to include (more or less, apparently) verbatim on an early notice to consumers was insufficient for not being exactly as stated in the Fair Debt Collection Practices Act.
The FDCPA requires debt collectors to make the following disclosures:
(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;
Here is how the disclosure that was challenged reads:
Unless you notify this office within 30 days after receiving this notice that you dispute the validity of this debt or any portion thereof, this office will assume this debt is valid. If you notify this office within 30 days from receiving this notice, this office will obtain verification of the debt or obtain a copy of the judgment and mail you a copy of such judgment or verification.
Did you catch it? The disclosure lacks the clause "that the debt, or any portion thereof, is disputed" after the phrase "if you notify this office within 30 days from receiving this notice . . . ."
Here is where the "letter" and the "spirit" of law come in conflict. The FDCPA sets the required disclosures. It doesn't put the required words in quotations, true, but it does set the information necessary for a disclosure.
But does a person reading the challenged disclosure really not get the information the law is hoping to convey? If anything, the collector probably though a clause like "or any portion thereof" is legalese clutter, which it honestly sort of is. The effects of the two paragraphs are the same, because it's very clear what the "if you notify this office..." sentence is referring to. And anyway, the 4th Circuit founds that the disclosure was acceptable.
The world as we know it is going to change a lot in the next two decades.
According to an Oxford University study, "about 47% of total US employment is at risk" of automation in the next twenty years. This is a really big number.
And it's not just basic, rote labor in trouble-- manufacturing, cashiers, secretaries, janitors, etc.-- though these sorts of jobs are already on the chopping block. According to the study, "everything from legal writing [to] truck driving [to] medical diagnoses" are soon to be automated-- in short, we can expect "a hollowing-out of middle-income routine jobs."
Automation has already displaced a great deal of these traditional 20th-century middle class jobs, and new industry isn't keeping up. According to The Economist, the number of working-age Americans actually working has decreased, "during good years as well as bad," from 65% in 2000 to 59% today. I have written before about the hidden rise in unemployment and how the actual number is somewhere around 15%. According to this study, that number isn't going anywhere but up, regardless of the overall economy.
As machinery becomes increasingly better at things like reading, writing, biometric scanning, and increasingly-complex physical tasks, the number of jobs disappearing will increase too. There are already machines able to perform complex surgeries faster than surgeons, and designs are already in progress for a machine that can 3D print the shell of a house in 24 hours. The legal field itself has already been drastically downsized, and the ABA attributes much of this to "powerful information technology that can automate or replace many of the traditional, billable functions performed by lawyers."
The changes don't stop at the eliminated jobs, as each job that disappears creates a ripple effect across other industries. Each doctor rendered unnecessary means one fewer car that needs to be built, or at least one car that will need much less maintenance, repair, and fuel. It means fractionally less upkeep necessary on the road that the doctor took to work. It means one fewer office needed, one fewer office wired, one fewer computer. It means one fewer computer shipped. Extrapolated across a single hospital it means fewer HR representatives and less support staff. Imagine it at every hospital in the country. Now imagine it happening in construction, retail, food service, and every other major industry at the same time. New technology will create new jobs to be sure, but it's hard to imagine the research, manufacturing, and maintenance of new machines replacing 50% of the existing economy.
If the Oxford study is accurate, we can look forward to a massive restructuring of the operation of our lives. The shift will demand we question the seemingly-fundamental tenet that each person must produce a certain amount of labor in order to survive. If automation equates to less work, more security, and more leisure for everyone, as it ideally will, it will be much for the better. If it is as The Economist says, however, and "no government is prepared for it," then we can expect at least an initial wave of negative effects. Unemployment will skyrocket, bringing with it everything we currently associate with unemployment-- more people struggling to make ends meet, fiercer competition for existing jobs, and larger tax burdens for the employed. Competition will keep salaries low. And more people will lean on debt to survive. Only time will tell!
So buckle your seatbelts! Oh which reminds me, your car will drive itself pretty soon too.
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