Why can’t our government do things that are overwhelmingly popular?
How many times have you asked, or heard someone ask, that question?
The simplistic answer is some form of individual failure. Corruption, dishonesty, ego — you know the list.
But there is a bigger reason that doesn’t get acknowledged enough: because our Founding Fathers didn’t really trust the will of the majority.
They didn’t believe people could be trusted with the direct election of the president, so they created the Electoral College. They appeased state delegations by creating a Senate to make the will of the states superior to the will of the people. They created a Supreme Court with the power to overturn public will, but without any accountability to that public.
Our founders did this because democracy — then and now — is a messy business. It solves for the possible, not the perfect. The Constitution is the thing that emerged to get 13 colonies to agree to cede power to a central, United States government. And so we have operated over these past 233 years with counter-majoritarian biases baked into our institutions.
Consider for a moment what our country would look like if the last two decades were governed by majority rule.
First, I would like to introduce you to President Al Gore, followed not too long after by President Hillary Clinton — both winners of the popular vote.
With those two presidents, the Supreme Court would look dramatically different.
How many American lives would have been spared from gun violence if Al Gore had appointed the replacements for Justices William Rehnquist and Sandra Day O’Connor prior to the District of Columbia v. Heller decision on an individual’s right to bear arms? How would our elections have changed if a different set of justices reviewed the Citizens United decision? Would the Dobbs case have led to the stripping of reproductive rights away from 167 million American women if the successors to Scalia, Ginsburg and Kennedy were appointed by President Hillary Clinton?
Or we can go further back. In 1922, the House passed legislation to make lynching a federal crime. The bill would be passed again and again through the subsequent decades, repeatedly shut down in the anti-majoritarian Senate by the anti-majoritarian filibuster. The Senate finally passed that bill last year. Not because public opinion on lynching changed, but because it took a century for the Senate to carry out the public will.
Here are three steps we can take to fix our anti-majoritarian institutions.
First, I’ve introduced a constitutional amendment to add 12 national at-large senators, to be elected via ranked choice voting. This creates a bloc of senators directly accountable to the will of the American people. The bill would also add 12 national electors to the Electoral College who would vote based on the national popular vote to reduce the odds of the winner of the popular vote losing in the College.
Second, I’ve introduced legislation to expand the House of Representatives by requiring that future increases in population require an increase in representatives. For context, the population of the United States has increased by roughly 3½ times since the House was last expanded in 1911, meaning the population of congressional districts have increased similarly.
Had this proposal been in force during the 2020 census, we would have added roughly 130 members to the House.
Finally, we need to realign the Supreme Court to its original Article III responsibilities.
Article III of the Constitution outlines that the court is responsible for matters relating to ambassadors, those in which the State is a party, and in such appellate jurisdictions as allowed by Congress.
In recent years, we have seen an intentional effort by groups whose interests are opposed to the public will to take control of the courts.
Congress can fix this by asserting its authority under Article III to limit the Supreme Court’s appellate power. I’ve introduced a bill to do that and shift the bulk of our appellate decisions to a 13-judge panel, selected at random from our nation’s circuit courts.
President Barack Obama once told me that this job is not a sprint. It’s a relay race. Our job is to take the baton from our predecessor and then put every bit of effort into gaining ground on the field, so that we can hand it off to our successor with our office and our nation in a slightly better position than we found ourselves in during our brief time in public service.
We aren’t perfect, but progress is possible. Our defects aren’t sources of shame — they are opportunities to improve. We have the baton. Let’s seize the opportunity.
Sean Casten is the U.S. representative from Illinois 6th congressional district.
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