A law journal just floated a wild idea to add 127 more states to the union. And it’s all constitutional.
American democracy is broken.
We have a president who lost the popular vote, a Senate where the “majority” represents about 15 million fewer people than the “minority,” and a Supreme Court where two justices were nominated by that president and confirmed by that unrepresentative Senate.
An unsigned note, entitled “Pack the Union: A Proposal to Admit New States for the Purpose of Amending the Constitution to Ensure Equal Representation” and published in the Harvard Law Review, offers an entirely constitutional way out of this dilemma: Add new states — a lot of new states — then use this bloc of states to rewrite the Constitution so that the United States has an election system “where every vote counts equally.”
To create a system where every vote counts equally, the Constitution must be amended. To do this, Congress should pass legislation reducing the size of Washington, D.C., to an area encompassing only a few core federal buildings and then admit the rest of the District’s 127 neighborhoods as states. These states — which could be added with a simple congressional majority — would add enough votes in Congress to ratify four amendments: (1) a transfer of the Senate’s power to a body that represents citizens equally; (2) an expansion of the House so that all citizens are represented in equal-sized districts; (3) a replacement of the Electoral College with a popular vote; and (4) a modification of the Constitution’s amendment process that would ensure future amendments are ratified by states representing most Americans.
Under the Constitution, new states may be admitted by an ordinary act of Congress enacted with a simple majority vote. The Constitution does, however, prevent new states from being carved out of an existing state unless the legislature of that state consents. Chopping up the District of Columbia gets around this problem because Washington, DC, is not a state.
One can quarrel with the details of the Harvard proposal. Ratifying a constitutional amendment, for example, requires the consent of three-fourths of the states. So it makes more sense to divide the District of Columbia into 150 states, rather than 127 states, to ensure that pro-democracy amendments will actually be ratified. (Under the Harvard proposal, there would be 177 states, so 133 of them would have to agree to a new amendment. That means that six existing states would need to play along.)
It also would be a good idea to draw the boundaries of those new states to ensure that the electorate within each of the new states supports such amendments.
Similarly, the Constitution effectively prohibits amendments that eliminate Senate malapportionment. The Harvard note proposes getting around this problem by transferring the Senate’s powers to another body. “The Senate’s duties,” it argues, “could be changed without modifying its composition.”
Fair enough. But a more straightforward solution might be ratifying two separate amendments: one to eliminate the restriction on amendments eliminating Senate malapportionment, and a second to actually eliminate Senate malapportionment.
Details aside, however, the wild thing about this Harvard Law Review proposal is that it is absolutely, 100 percent constitutional. The Constitution provides that “new states may be admitted by the Congress into this union,” but it places no limits on the size of a state either in terms of population or in terms of physical space.
Literally nothing in the Constitution prevents Congress from admitting the Obama family’s personal DC residence as a state — a state which would then be entitled to two senators, one member of the House, and exactly as much say on whether the Constitution should be amended as the entire state of Texas.
Congress could then follow up this move by adding the personal DC residences of 149 other staunch Democratic families as states, each of which would then get two senators of their very own.
Indeed, there is a long history of partisans selectively admitting new states in order to pack the Senate with their own fellow partisans. In 1864, for example, Republicans admitted the state of Nevada — then a desert wasteland with only several thousand residents — giving themselves two extra Senate seats in the process.
Similarly, the reason why there are two Dakotas is because Republicans celebrated their victory in the 1888 election by dividing the Republican Dakota Territory up into two states, thereby giving themselves four senators instead of only two.
So let’s be frank. The Harvard note’s proposal is ridiculous, but it is no more ridiculous than a system where the nearly 40 million people in California have no more Senate representation than the 578,759 people in Wyoming. As the Harvard note says of its own pitch, “radical as this proposal may sound, it is no more radical than a nominally democratic system of government that gives citizens widely disproportionate voting power depending on where they live.”
Author: Ian Millhiser
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