Can the Constitution be Unconstitutional?

No.

True, there are places where the Constitution does not live up to our moral ideals (slavery), or ideals about how a nation's government should be structured (slavery, the disproportionate representation afforded by the Senate), or our egalitarian and utilitarian principles (slavery, the electoral college), but it is still the Constitution.

More importantly, the force that shaped Constitution 200 years ago is exactly the force that keeps the electoral college going today: the limits of the possible. Without disproportionate representation, the small states don't join, there is no United States, and there is no Constitution.

(Similar analogy: unions would be better if there wasn't such an emphasis on seniority rights, but without seniority rights, the older workers wouldn't have joined, and there would be no union.)

While it is absurd, and (kind of) a violation of the one-person, one-vote standard we apply to states, the electoral college was a necessary precondition to the Constitution and the form of government we have today. It's tempting to write it off as a historical anomaly ("Oh, it was 1787, it was the first time anyone had done this, they were all drunk ..."), but if the union was forming today, the small states would still want some sort of assurance that their voices would be heard in our democracy.

I'm not excusing the ridiculousness of the system and its 5% error rate. I'm just saying that every time you curse the electoral college for giving us George W. Bush, you should thank it for giving us the First Amendment, too.

- A