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Periodically, those who do not think that the U.S. Constitution is “democratic” enough set out to repudiate the document’s genius. The Electoral College is often the recipient of such attacks, particularly before and after national elections, and those attacks are currently underway. But the most recent constitutional provision to be called into question is the clearly stated requirement of Article I, section 3, that “the Senate of the United State shall be composed of two Senators from each state.”
Professor Eric W. Orts, of the Wharton School, puts it this way in a recent article in The Atlantic: “Today, the voting power of a citizen in Wyoming, the smallest state in terms of population, is about 67 times that of a citizen in the largest state of California … the situation is untenable.” Orts then goes on to propose a plan according to which, were it to become law, every state would get one Senator out of the Senatorial seats available (which under his scheme would have to be increased to 110 from the current 100) and the rest would be apportioned according to population. The result would be that California would get 12 senators instead of its current two. The prospect alone of more senators from California is enough to give one pause.
But speaking seriously, what is objectionable about this proposal? First, it fails to recognize that one of the reasons the Constitution has been protective of liberty is because it was not intended to be purely democratic. Classically, it is called a “mixed government.” The Founders combined the strengths of various ancient governmental forms—democracy, aristocracy and monarchy. For instance, they gave “monarch-like” powers, such as the veto and the pardoning power, to the president. They made other parts of the government—like the federal judiciary—much more “aristocratic.” Federal judges are appointed, not elected, and serve for a life tenure.
When it came to the legislative branch, the Founders created a legislative body (the House) which is more “democratic.” In the House, large populous states like California have many more representatives—53 currently for California—while the states of Montana, Wyoming, and even the largest state in geographic size, Alaska, each have only one representative. In the House, more citizens results in more representatives. However, even in the House, the structural form is “republican,” meaning that the “people” vote for representatives but do not generally vote on legislation. It is not direct democracy.
The other legislative body, the Senate, is intentionally constituted in a different way. It is not directly representative of the people but of the states, which means that each state has equal representation in the person of its two senators. Madison put it this way in Federalist No. 58: “One branch of the legislature is a representation of citizens; the other of the states: in the former, consequently the larger states will have most weight; in the latter, the advantage will be in favor of the smaller states.” Again, in Federalist 62, Madison says the equal representation of each state in the Senate is meant to be “a constitutional recognition of the portion of sovereignty remaining in the individual states.” St. George Tucker, noted Virginia lawyer and author of Tucker’s Blackstone, explained that the equal representation in the Senate was to recognize that even the most diminutive of states, “the smallest republic,” might view itself as equal, in that body, to even the largest state, which he called “a powerful monarchy” by comparison.
There is important history here. Even an elementary student of American politics knows that this distinction between the House and the Senate was wrought by the Great Compromise between the large, more populous states and the small states. If it had not been reached in Philadelphia in the summer of 1787, an impasse might well have disrupted and delayed the Union of the Several States indefinitely. In fact, this compromise was deemed so important to the formation of a union that another provision protects its perpetuation, which brings us to yet another obstacle to the Orts’ proposal: Article V.
In Article V, the Founders identified the only provision in the Constitution which is perpetually exempted from amendment. The language says: “that no state, without its consent, shall be deprived of its equal suffrage [voting power] in the Senate.” That is a categorical, unambiguous statement which protects the Great Compromise from being undone by the Amendment process, or for that matter, any other process. Orts not only defies the political theory and history of the structure of the Senate, but the explicit language of the Constitution which protects that structure. Only the most radical of the “living Constitution” proponents could manage to misconstrue that language.
Orts tries his best at doing this. First, he reminds us that the various voting rights amendments—the Fourteenth, the Fifteenth, the Nineteenth and the Twenty-sixth—sought to provide equal voting rights which had not been extended to persons because of race, sex, or age. Secondly, he maintains that these Amendments established the principle that the states had consented to allow Congress to eliminate voting inequality for these reasons. Therefore, concludes Orts, in a shocking non sequitur, Congress can pass a statute which he dubs the “Senate Reform Act,” which legislatively eradicates the “voting inequality” produced by the two-senator provision and the Great Compromise. Orts ignores the fact that the voting rights Amendments were specifically directed toward voting inequality produced by the misuse of race, sex, and age to disqualify voters. To argue that Congress can alter the fundamental structure of the Senate by mere legislation, bypassing the Amendment process, while side-stepping the absolute prohibition of Article V, is to make a complete mockery of the reliability, the fixity, and the process of change provided by a written constitution.
Even Professor Orts himself recognizes in the final paragraph of the Atlantic article that the prospect for the passage of such a Senate Reform Act is politically unlikely. On top of that, judicial review, with the current Supreme Court, would likely and rightly so, find it unconstitutional, which it surely is. Orts proposal would deny the political wisdom of the Founders, the history and reasons for the Great Compromise, and one of the stunning bulwarks against the excesses of the tyranny of the majority—equal representation of the states in the Senate.