Make a batch of new states! -Harvard L. Review Note

https://harvardlawreview.org/2020/01/pack-the-union-a-proposal-to-admit-new-states-for-the-purpose-of-amending-the-constitution-to-ensure-equal-representation/

For most of the twenty-first century, the world’s oldest surviving democracy has been led by a chief executive who received fewer votes than his opponent in an election for the position.^1×1. See Dennis W. Johnson, Campaigns and Elections 70 (2020). The first of these executives started a war based on false pretenses that killed hundreds of thousands of civilians.^2×2. See Rebecca Adelman & Sherifa Zuhur, Iraqi Freedom, Operation, Casualties Of, in The Iraq War Encyclopedia 199, 201 (Thomas R. Mockaitis ed., 2013); Gregory W. Morgan, Iraq, History of, 1990 to Present, in The Iraq War Encyclopedia, supra, at 184, 188; Tim J. Watts & Paul G. Pierpaoli, Jr., Bush, George Walker, in The Iraq War Encyclopedia, supra, at 72, 75. The second — a serial abuser of women^3×3. See Michael Barbaro & Megan Twohey, Crossing the Line: How Donald Trump Behaved with Women in Private, N.Y. Times (May 14, 2016), https://nyti.ms/24RqHYi [https://perma.cc/7AM8-V74F]. who hired as his campaign manager a lobbyist for violent dictatorships^4×4. See Franklin Foer, Paul Manafort, American Hustler, The Atlantic (Mar. 2018), https://www.theatlantic.com/magazine/archive/2018/03/paul-manafort-american-hustler/550925 [https://perma.cc/2DA7-2Y7E]. — authorized an immigration policy that forcibly separated migrant children from their families and indefinitely detained them in facilities described as “concentration camps.”^5×5. Isaac Chotiner, Inside a Texas Building Where the Government Is Holding Immigrant Children, New Yorker (June 22, 2019), https://www.newyorker.com/news/q-and-a/inside-a-texas-building-where-the-government-is-holding-immigrant-children [https://perma.cc/4LT4-LGL7].

Democracy, as they say, is messy.^6×6. Cf. 444 Parl Deb HC (5th ser.) (1947) col. 203 (UK) (statement of Rt. Hon. Churchill) (“No one pretends that democracy is perfect or all-wise. Indeed, it has been said that democracy is the worst form of Government except all those other forms that have been tried . . . .”).

But even when democracy is messy, a society’s commitment to the endeavor rests on the belief that giving power to the people is appropriate and fair.^7×7. Sidney Verba, Fairness, Equality, and Democracy: Three Big Words, 73 Soc. Res. 499, 503 (2006). Recent events have highlighted some of the ways in which federal elections in the United States are profoundly undemocratic and, thus, profoundly unfair.^8×8. See generally Ezra Klein & Mallory Brangan, Vox, The Roots of America’s Democracy Problem, YouTube (Nov. 20, 2018), https://youtu.be/0ySL82WbcvU [https://perma.cc/9JWL-5R7W]. The Electoral College — when it contravenes the popular vote — is an obvious example of this unfairness. But it is just one of the mathematically undemocratic features in the Constitution. Equal representation of states in the Senate, for example, gives citizens of low-population states undue influence in Congress. Conversely, American citizens residing in U.S. territories have no meaningful representation in Congress or the Electoral College.

If we truly hold to be self-evident that all are created equal,^9×9. See The Declaration of Independence para. 2 (U.S. 1776). then it is time to amend the Constitution to ensure that all votes are treated equally. Just as it was unfair to exclude women and minorities from the franchise, so too is it unfair to weight votes differently. The 600,000 residents of Wyoming and the 40,000,000 residents of California^10×10. QuickFacts, U.S. Census Bureau, https://www.census.gov/quickfacts/fact/table/CA,MT,WY/PST045218 [https://perma.cc/98R8-3JCA]. should not be represented by the same number of senators. Nor should some citizens get to vote for President, while others do not. Any rationalization of the status quo must adopt the famous Orwellian farce: “All animals are equal but some animals are more equal than others.”^11×