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.
The attorneys of Drewes Law have access to post and edit the blogs. Attorney Bios.