Protecting the Rights of Citizens of Small-Population States

Barn with American flag in a small-population state on the Great Plains
Barn with American flag in a small-population state on the Great Plains (Photo by specphotops on Unsplash)

This article is the fourth part of a six-part series, “Constitutional Changes to Restore American Democracy: Reforming the U.S. Senate and ending the Imperial Presidency.” Click here to read Part One: “The Undemocratic U.S. Senate.”

As outlined above, the U.S. Senate has more power than the democratically-apportioned House of Representatives largely to prevent voters in states with many people from running roughshod over those in small-population states. However, this threat is greatly overstated.

The most important reason small-population states need not fear is that that members of Congress do not vote as state delegations. Rather, all the states with large and medium-sized populations send representatives from more than one party.

For example, although California currently has 52 members in Congress, seven of them are Republicans. The open 53rd seat was held by an eighth Republican until he was convicted for campaign finance violations. New York has 26 members in Congress, five of whom are Republicans, with one open 27th seat. In Florida, 14 of the 27 members are Republican. Texas and Florida, the second and third most-populous states, both have more Republican representatives than Democrats.

In short, Congress represents the diversity of American voters enough to vest in it the entire legislative power.

After Senate Reform, a Constitutional Amendment is needed to protect Small-Population States.

Yet the concerns of small-population states about being overwhelmed by states with larger populations should be not be ignored. After their lock on the Senate is removed, what can be done to protect them, to the extent that threat is more than hypothetical?

For over 200 years, the federal courts have checked the power of Congressional majorities to trample on the rights of citizens and groups. However, no part of the Constitution directly prevents Congress from discriminating against a state. Although the U.S. Supreme Court recently struck down part of the Voting Rights Act for being allegedly unfair to certain states, that judgment is not worthy of extension.

Intermediate Scrutiny is the Proper Level of Protection for Rural Interests.

To protect the interests of citizens of small-population states, the constitutional amendment that reforms the Senate should include a clause that bars Congress from making a law that has a discriminatory effect upon a citizen of a small-population state or states, when not “substantially related” to furthering an “important public purpose.”

This “intermediate” level of “scrutiny” is usually the correct standard when a law must have some discriminatory effect to protect the public. For example, to protect the public, the loudness of amplified sound at political demonstrations must be limited. However, because these laws must not outlaw or frustrate free speech, the courts apply intermediate scrutiny when reviewing such laws.

Besides citizens of small-population states, state governments would be able to sue on behalf of their citizens. However, the amendment would also permit citizens to enter lawsuits to defend federal laws that they support.

Through this anti-discrimination-against-states amendment, citizens of small-population states would be well-protected from abuse. Long before they would need to file a lawsuit, small states would be heard in Congress, the Senate, in the White House and by the American people as a whole. This would protect people in small-population states while still allowing the American people to rule themselves.

Part Five: Giving Congress Power over Impeachment and ending the Imperial Presidency (click here)

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