In Federalist No. 22, Alexander Hamilton warned that giving small states like Rhode Island or Delaware “equal weight in the scale of power” with large states like “Massachusetts, or Connecticut, or New York” violated the precepts of “justice” and “common-sense.” “The larger States would after a while revolt from the idea of receiving the law from the smaller,” he predicted, arguing that such a system contradicts “the fundamental maxim of republican government, which requires that the sense of the majority should prevail.”
Hamilton’s nightmare has become the reality of 21st-century America. We are living under minoritarian tyranny, with smaller states imposing their views on the larger through their disproportionate sway in the Senate and the electoral college — and therefore on the Supreme Court. To take but one example: Twenty-one states with fewer total people than California have 42 Senate seats. This undemocratic, unjust system has produced the new Supreme Court rulings on gun control and abortion.
So, if the Supreme Court is going to be a forum for legislating, shouldn’t it respect the views of two-thirds of the country? But our perverse political system has allowed a militant, right-wing minority to hijack the law. As an Economist correspondent points out, “5 of the 6 conservative Supreme Court justices were appointed by a Republican Senate majority that won fewer votes than the Democrats” and “3 of the 6 were nominated by a president who also won a minority of the popular vote.”