Jamelle Bouie writes:

A central architect of the Constitution, James Madison was deeply sensitive to the threat majorities posed to minorities. On important social questions, “[N]o other rule exists … but the will of the majority,” he wrote in 1785 while a member of the Virginia House of Delegates, “but it is also true that the majority may trespass on the rights of the minority.” Our governing document shows this sensitivity in its structure, which diffuses powers across multiple institutions, creates opportunities for representation at each level of government, and attempts to stymie passionate majorities in favor of deliberative ones. But Madison wasn’t a minoritarian; he believed majorities, properly structured around consensus, had the right to govern.

That belief should inform our understanding of the present, where the Republican Party holds all three branches in Washington despite less-than-majority support among the public at large.

This was dramatized by the recent confirmation of Brett Kavanaugh to the Supreme Court. Kavanaugh was nominated by a minority president who lost the national popular vote by 3 million ballots. Unpopular from the start, Kavanaugh’s standing collapsed in the wake of Christine Blasey Ford’s credible allegation of sexual assault. He was confirmed by a narrow majority of the Senate representing just 44 percent of all Americans, and more Americans opposed his confirmation than supported it. Now aligned with four other conservative justices—including one nominated by his patron and two others by a president who also entered the White House with minority support—Kavanaugh will likely back jurisprudence that enables voter suppression and extreme partisan gerrymandering, allowing the Republican Party to strengthen its anti-majoritarian hold on power.

With Kavanaugh’s confirmation, an electoral minority is now essentially dictating the terms of constitutional interpretation, thanks to two institutions: the Electoral College—which favors the geographical distribution of supporters, not the total number—and the Senate, which creates huge disparities of representation. (A majority of Americans are represented by just 18 senators.) While there’s no clear relationship between partisanship and state size—some small states are heavily Democratic, some large ones are heavily Republican—the present configuration of state partisanship makes the GOP Senate majority a minority of the overall population. [Continue reading…]