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The Constitution was built to allow for the few to hold so much power


Let's start at the beginning. Well, almost the beginning. By the late 18th century, America had won its independence from Great Britain but was still figuring out how to handle its business. Jonathan Gienapp takes it from here. He is an associate professor of history at Stanford University. He specializes in early American history. He told us that the young nation was facing an economic crisis and didn't agree on how to deal with it. Now, remember, political parties barely existed then and were just starting to form. So the founders got together to hash out some solutions that made sense to them at the time but that have profound effects on us to this day in ways they probably never envisioned.

So, Professor Gienapp, to start us off, I'm just going to ask you to set the stage for us, for people who don't remember that period in history or maybe they skipped that class. So what was going on in 1787 that created a need for the Constitutional Convention?

JONATHAN GIENAPP: In 1787, The United States was in something of a crisis. Life as independent states was not going particularly well. Under the first Constitution, the Articles of Confederation set things up such that every state had an equal voice. Each state had the equivalent of one vote. It also provided a stipulation that nothing in the Articles of Confederation could be changed, could be amended, without the unanimous agreement of all 13 states. So even if 12 states were interested in changing something, that wasn't sufficient. All 13 were necessary. And this was a problem in the 1780s 'cause certain states refused to pass small constitutional amendments that would have given the national government a little bit more power.

So this is part of the reason a constitutional convention is called in 1787. And a lot of people say we don't just need small changes. We really need to blow things up and start over. But that doesn't erase the small-state-big-state division. The compromise that saves the Constitutional Convention that we still live with to this day is that there will be two houses that make up the national legislature - Congress. One of those, the House of Representatives - representation will be based on population; and the other house, the Senate - representation will be based on equal suffrage, or the idea that each state gets the same vote.

So today, California has considerably more representation in the House of Representatives than does Wyoming or Delaware or Connecticut, but they all have equal representation in the Senate.

MARTIN: So how does the compromises that made for small states benefit the minority political party, which, in the current moment, are the Republicans? How does it benefit them today? Does it?

GIENAPP: It most certainly does. And that's because of the unique features of modern American political culture, that the way that partisan affiliation has become distributed in the modern United States is increasingly affiliated around proximity to urban or rural spaces. So closer you are to a big city or to suburbs surrounding the big city, the more likely you are to be liberal or in a place that votes for liberals and vice versa. So given that reality, if you layer that on top of the same constitutional system, the same political system that we've had since the late 18th century, what that means is that votes in less populated places are dramatically amplified.

So Wyoming has two senators. California has two senators, even though California has something like 65 times the population. And that formula for calculating representation in Congress was the exact formula that the framers of the Constitutional Convention used to devise the extraordinarily Byzantine system of electing presidents that we still have in the United States, known as the Electoral College. The Electoral College basically takes that formula and provides disproportionate advantages to smaller, more rural states.

MARTIN: You mentioned the Electoral College, so let's talk about that for a second. It's often pointed to as being an unfair system to elect a president because, as we saw in 2016 with Donald Trump's victory and in 2000 when George W. Bush won for the first time, somebody can win the presidency without winning the popular vote. So why did the founders agree to that system instead of a simple majority picking a winner?

GIENAPP: So when the framers were trying to figure out how to devise Article II of the Constitution, which is the executive branch, they had a lot of questions to sort out. So the debates were pretty complicated. But basically, if we boil it down, there were three possibilities for how the national executive - the president - would be chosen. The most popular choice - the default choice - was legislative selection, that Congress would choose the president. Some people also defended the idea of a national popular vote among eligible voters. The third choice fell sort of in between, which was to have a system of electors at the state level that would then choose the president. And to answer your question, why they chose the Electoral College, the important thing to realize here is they chose it not because it was the most desirable option, but exactly the opposite - because it was the least undesirable.

MARTIN: That's crazy. I mean, that's just so - it's almost, like, shocking to hear, like - it was the least bad choice and we don't really know much about it. So are there other features in the Constitution that help prop up a minority political party?

GIENAPP: Certainly one feature of the Constitution that allows for this to all continue is Article V, which is the amendment provision. In theory, just about anything in the Constitution can be changed if people decide it's not working. But the amendment provision has such enormously high thresholds, that to get the Constitution amended, you need two-thirds in both houses of Congress, and then it is sent to the states for ratification. And three-fourths - 75% - of the state legislatures must approve it. So there can be provisions that have enormous support. I mean, not just majority support - supermajority support that can't cross these thresholds. So in a lot of ways, what locks in these features that help exacerbate minority rule can also be traced to this feature of the Constitution. They expected constitutional amendments to be a relatively frequent part of our lives.

MARTIN: Have there been other times in history where the party - whatever the party was representing the minority of Americans held power or influence such that, you know, popular legislation couldn't be passed? Can you think of others?

GIENAPP: There are certainly times in which minority rule has reared its head in the United States. So the issue of slavery was beginning to become quite prominent. One of the central agreements that is reached is that when they're calculating representation based on population, in addition to the free population of each state, they will also count three-fifths of each enslaved person towards that tally. Now, if you fast forward from the Constitutional Convention into the 19th century, this becomes very much the dividing line in American politics - free states versus slave states. But something unexpected happens. Population growth surges in the Old Northwest territory - modern day Ohio, Indiana, Illinois, Michigan - and it dramatically outpaces population growth to the South. So what you end up getting is the three-fifths clause allows the Southern states to get significantly more representation than they otherwise would in the House of Representatives to keep pace. But it also means they are increasingly reliant on the Senate to try to defend their political interests.

So for a large stretch of Antebellum America leading up to the Civil War, there is deep and seething frustration on the part of Northerners in non-slaveholding states that slaveholders, through the three-fifths clause in the Senate, have basically been able to enact a sort of minority rule, that they are able to prevent legislation that a majority of Americans want, and they were able to ensure certain kinds of legislation that it does not have majority support. So a lot of Antebellum America can be understood as a kind of minority rule on the part of the slaveholding South that is able to exploit these features of the Constitution to do a similar version of some of the things people are complaining about today.

MARTIN: That was Jonathan Gienapp. He is an associate professor of history at Stanford University, and he specializes in early American political history and culture. Professor Gienapp, thank you so much for joining us.

GIENAPP: Thank you so much for having me. Transcript provided by NPR, Copyright NPR.

Michel Martin is the weekend host of All Things Considered, where she draws on her deep reporting and interviewing experience to dig in to the week's news. Outside the studio, she has also hosted "Michel Martin: Going There," an ambitious live event series in collaboration with Member Stations.