John Rachal's Blog

Dear Mr. Madison,

My name’s John, and I’m writing from the year 2021. I really don’t know how you’re going to get this letter, but I hope you will. I’m hoping the country you helped found will figure out some sort of time travel machine, and you will get this letter and go back and revise the Constitution you wrote for the country—and try not to get too mad that the forty-fifth president we had, by far the worst one ever, said that your friend Tom Jefferson wrote the Constitution. You thought the king of England was bad? This fellow, besides being as ignorant as a housefly, makes George III look like the soul of justice and righteousness. But I’ve got a lot to tell you, and I want it to focus on the Constitution, so I’ll forgo almost all the history that has transpired since your time.

In those Federalist Papers you wrote with Hamilton and Jay, there was a lot of concern about “faction” and the contending forces that inevitably arise in human affairs, especially in the area of governing, where power is the supreme, well, not “supreme good” exactly, since the supreme good would be justice, but the supreme end sought by those in the political arena.  Boy, were you right about “factions.” Until the last few years, our differences were always more or less on public display, but we were at least modestly civil to one another. That changed with this new president back in 2016, although others might reasonably argue that it started eight years earlier when we elected the first black man as president, who was loathed by many for having the audacity to get elected and sit in the Oval Office. Yes, we have come a long way since the day that a man whose ancestor could have been one of your slaves could become president.

But maybe the best thing about your Constitution was that it provided for a mechanism to make amendments, so not only can folks other than white, male landholders vote, but they can run for president. Had it not been for one of the flaws in your Constitution, we would have had a woman president right after a black one. That probably shocks you, even as well-read and enlightened as you are. It took a while, but the country finally decided that its voters and its leaders did not have to all be of one race and one sex. I don’t mean to sound like I’m chastising exactly, but on this point, yes, I am: It’s a grave blind spot, a sin and a crime almost without peer, that you were unwilling to reject slavery, to see that it was morally repugnant, so much so that it caused the country to almost be torn apart in a civil war a mere seventy-two years after your Constitution. But like I said, it’s not my purpose to be holier-than-thou and chastise—you wrote a great thing, even though it was flawed; and besides, I hate to think of what people 234 years after me will say about how blind I was to various evils of my own day.

Anyway, here are some problems I see with the Constitution that have not been fixed by amendments, and I’d like you to consider fixing them yourself, presuming we get that time-traveling machine invented. I’ll list them more or less in my order of priority.

The Electoral College. I understand that back in your time travel was slow and there were all sorts of problems collecting votes, so you needed electors representing the wishes of the people to get together and render a judgment as to who won. No need for that anymore. In fact, it’s not just a matter of no need, since we now have communications systems that count votes almost immediately. The real problem is that the Electoral College is anti-democratic; it allows the loser to win. And that has happened five times since you were president. We have had forty-five men as president (one of whom served two non-consecutive terms, so we now call our current president number “46”), and your Electoral College gave five of them the presidency even though another candidate got more votes. That’s 11% of the time that the loser won. Is that really what you wanted? Here we have the very definition of democracy being violated. It even happens that just one county can determine a majority in one state, and then that state’s electoral votes all go to one candidate, and that state might make the difference in the Electoral College outcome, all because of one county out of well over 3000 in the country. The Electoral College also means, not incidentally, that conservative votes in liberal states and liberal votes in conservative states are literally meaningless, at least as far as influencing the outcome. Shouldn’t every vote count? I did the arithmetic, and it would now be technically possible for one candidate to win as little as 22% of the popular vote, and the other candidate 78%, and the Electoral College still could, mathematically, give the presidency to the one with 22%. Surely you didn’t mean for that to be even remotely possible. There are several ways to fix this—I’ve mentioned my own elsewhere—if only there were the will to do so.

Gerrymandering. When you designed the House of Representatives, which gave each state representation based on its population, you didn’t say much about how the districts in the state were to be drawn up. So what has happened is that usually the faction that dominates a state’s legislature draws them up so that it minimizes the impact of the other faction and maximizes their own. The population of North Carolina, for example, has very roughly the same number of total voters in each faction, meaning it’s a “purple” state. But the state legislature drew up the districts so that of its thirteen districts prior to the 2020 census, only three are drawn to favor the minority faction in the state legislature, meaning only three of that faction will likely be elected to the House of Representatives but ten of the other faction will likely be elected. Based on the state’s voters, it should be closer to six and seven. Even during your lifetime, some wit said that Massachusetts Governor Elbridge Gerry had approved a district drawn up in his state that looked like a salamander, so the wit gave it a name, and that’s what we call it now: gerrymandering. Gerrymandering allows totally partisan state legislative bodies to divide congressional districts in ways that will almost insure that most districts will go to one faction or the other, often totally misrepresenting the wishes of a state’s citizenry. One of our conservative political writers, George Will, has said that 90% of congressional districts are “safe” for one of the two main factions because of gerrymandering. This one could easily be fixed by having districts drawn by bipartisan committees or even based on, say, latitude or longitude.

The Senate itself. I understand that you were trying to balance the House of Representatives, with its multiple representatives based on population, with another chamber that would not be based on population, one that might even be, well, more sedate and less prone to the bickering in the House. So what I’m about to say approaches sacrilege, but there is something seriously flawed when the 39 million people in liberal California and the 29 million in conservative Texas each get only two senators, while the 600 thousand of Wyoming also get two. (Yes, the country now goes all the way to the west coast of the continent, with now fifty states, most of which you have never heard of.) Do you approve of the idea that one state, with less than two percent of the population of another state, gets to have the same number of senators? Doesn’t that give smaller states an inordinate amount of power? This probably can’t be fixed without eliminating the Senate, an admittedly draconian solution; and I know that you were trying to give fair representation in congress to small states. But your cure seems worse than the disease—the small states are disproportionately powerful.

Unlimited terms of Representatives and Senators. Yes, term limits would diminish the importance of experience, but I’ll take that risk to try to at least reduce (though hardly eliminate) the influence of the rivers of money flowing into Congress. Here is just one example: In my own faction there is a senator who owns a coal company that has made him over four million dollars, and he shovels in more money from what we call the fossil fuel industry than anyone else in congress. Naturally, to keep that money flowing, he votes to protect those sources of fuel, even though there are safer sources. Those fossil fuels are causing our climate to change in dangerous ways since your day. Naturally he, like almost all the other congressmen and congresswomen (Yes! Women in congress!), often votes not for the common good but to keep those groups happy so they will continue to buy his influence for their benefit in congress. If we had term limits (and by way of amendment we now do for our presidents), he and others might actually vote their consciences rather than pander to groups who purchase congressional power to serve those groups’ corporate interests. In your day, what I’m calling “corporate interests” were not nearly the malignant influence on government that they are today. As wise and as prescient as you were in 1787, you would be astonished at the influence they buy and the accompanying power they wield in my century.

The filibuster. Actually there is no filibuster anymore—only the threat of one. You don’t actually have to go to the well of the Senate to talk to death a bill you don’t like; you only have to say to the other faction that’s what you’ll do, and a bill dies unless 60 senators approve it. Actually, you are not responsible for this one; it’s not in your Constitution. It’s one of the rules that subsequent congresses came up with. But it needs to go. Isn’t 51 a majority? Then let the majority rule. At the very least, require a bill’s opponents to actually filibuster it, and reduce the number to block it from 60 to 55.

Unlimited terms of Supreme Court Justices. I suggest eighteen-year terms, with one justice rolling off every two years. This means every president gets at least one pick, probably two, and some of the grandstanding in the hearings process would diminish, and maybe there could even be a return to more bipartisan voting on nominees. Each nominee must be voted on within three months—no violating the “advise and consent” rule by stalling a nominee until the next president (as has happened). If a justice dies or retires from office, that president gets an extra pick to fill out the decedent’s or retiree’s term.

No Senate or House voting representation for the District of Columbia. This of course presumes the Senate itself is permanent in its two-senators-per-state formulation (which I know it is). D.C. currently has a non-voting “delegate” in the House, but has no representation at all in the Senate, despite having a larger population than one of our states, Wyoming. Part of what so angered the colonists of your day was the idea that they were being taxed but they had no representation in British government: The cry of your day was “no taxation without representation.” Almost 700,000 American citizens live in Washington, D. C., but they have no national-level voting representation at all. Would those in the faction of wealth—who would never agree to the District having Senate representation since its voters would tend to vote for the faction of modest means—be willing to forgo federal taxes from the people of that area since they have no national voting representation? No, of course not. But even if the answer to that were yes, the fair thing would be to have both, not neither: Senate and House voting representation, and federal taxes due.

I hope these cavils do not offend you. You wrote what is almost certainly the greatest political document of all time. Even the Magna Carta blushes by comparison. Excluding the extra-Constitutional filibuster rule, what I have listed are all structural flaws, of course, some being almost inevitable in such a lengthy and complex document. As I said above, the greatest feature of your magnum opus is its design allowing its flaws (most importantly, denying suffrage to all women and most men and recognizing and allowing slavery) to be corrected through amendments.

But as I write today, the real problem with our current democracy is a kind of moral one: the fracturing of our former, relative American solidarity and tranquility, at least in the sense of seeing each other as legitimate Americans, whatever our differences. This seemingly unbridgeable factionalism, this tribalism, this house divided against itself as our sixteenth president said of our civil war, is due largely to one man, the forty-fifth president—whose presidency, I must emphasize, was not the will of the majority of voters. But this man Trump—a man for whom you would in your day have used the word “tyrant”—had the enormous assistance of twenty-first century technological platforms. These technologies have allowed hatred and ignorance and lies to enter the bloodstream of the American body politic, polluting it, and poisoning it. Yet even that is too simple; power hungering, fear mongering, vote-buying have always been there, and they contribute greatly to the fissures in our democracy.

But until Trump, presidential candidates from both parties have fallen within the elastic boundaries of normal political bombast and prevarication. None has been a criminal megalomaniac—none a “tyrant.” Until Trump, no president tried to steal an election after the votes were counted and then, failing to do so, blamed the true winning faction of stealing it; until Trump, we did not have state legislatures trying to pass laws allowing their state’s legislature to simply throw out their voters’ choice and impose their own choice; until Trump, ignorance and credulity did not seem quite so dangerous; until Trump, only a tiny few worried about authoritarian drift. Trumpism is a serpent’s poison in our body politic, and I am by no means certain that it is a disease the nation can long endure. 

Your humble and obedient servant,

John Rachal