Balkinization: Our Weird and Wacky (and Indefensible?) Senate

Comments:

What do you suggest we do to protect the rights of small states?

Nothing. States don't have rights, people have rights. Our Constitution should protect people, not states.

# posted by

Mark Field : 11:42 PM

Ok, this is the wild and wacky idea I came up with today:

I don't like the idea of a Convention, but Art. V creates a significant problem when it comes to the Senate. So......

Why not transfer to the House some of the special powers of the Senate? I'm thinking particularly of the right to confirm judges and all other officers of the US.

This wouldn't solve the whole problem, but it would certainly make the government much more democratic (small d intended) than it is now.

# posted by

Mark Field : 11:48 PM

States have "powers" but among them include protecting people's rights. Federalism is in place to further this end.

As to the second comment by MF, the Senate is supposed to have a "republican" effect. The House represents little fiefdoms, the Senate larger regions, and is formulated with the supposition that a smaller more temperate body would help limit the overreaching of the more democratic House while serving a few select purposes.

More "cerebral" ones, so to speak, like confirmations and treaties. If you are going to remove their major role, what exactly is it there for? This role, btw, need not be done by a body so malapportioned. State senates need to be equally so.

For instance, the "Virginia Plan" proposed by Madison et. al. did not have the two senate rule. M. felt the latter was a serious breech of his goals. But, he still proposed an upper house.

The lack of unicameral legislatures suggests our states still find two houses useful.

# posted by

Joe : 12:16 AM

I know the proposal was in part an end around of the Art. V rule, but it seems ill-advised all the same.

Art. VII (ratification) violated the existing Articles of Confederation. It was defended on necessity grounds ... unanimity deemed too extreme.

If it was good enough for Madison ...

# posted by

Joe : 12:19 AM

I think this gets pretty close to defending it...

http://www.press.uchicago.edu/cgi-bin/hfs.cgi/00/180279.ctl

# posted by

Steven Maloney : 1:06 AM

@Joe: you seem to equate a bicameral system with a system in which each state has two senators.

As far as I understand (as European) for you (Americans) the United States is a bond of sovereign States that have given up some of their sovereignty to form a Federal Government that would have an army and regulate intrastate commerce.

In this system the Senate represents the sovereign States (not solely its people). The Senate has to approve treaties and federal appointments because the States are bound by such treaties and appointments. In this system it makes perfectly sense to have two senators for each state (a lot of the "old" senate rules seems to have evolved with this idee in find. For example: the possibility for one senator to place a hold on a bill or the possibility to filibuster).

Because of the normal tendency for political bodies to get as much power as possible the federal government has expanded its reach. Both houses of congress now try to regulate matters that in the eyes of the frames would have been resolved by the States' Congresses.

Thus their is a new reality in which the Senate (and the whole federal government) regulates more than the army, foreign policy and intrastate commerce. If you want to make the electoral system work better there seems to be two options: either go back to the origianl view of state sovereignty and small (federal) goverment, or change the senate into something more proportionate.

As a European, I just know these are the problems we are heading for as well.

# posted by

Anne : 4:10 AM

The Constitution may have problems, but as the saying goes, it's better than what we've got now. It strikes me as almost quaint discussing what the content of the Constitution should be, when it's not, in any real sense, being followed anymore, anyway. Just used as some kind of fetish the government waives around to claim legitimacy, and never mind what it actually says, if it gets in the way of something somebody wants to do.

That's the only reason I'd favor scrapping it, and starting over. Presumably if we got a new Constitution, it would be some years before "living constitutionalist" could make their usual arguments without being hooted down in derision. And so we'd get to enjoy the rule of law again for a while.

# posted by

Brett : 6:41 AM

The price of Federation. It's the same here in Australia.

We also have a federal constitutional guarantee of equal State representation in the (ahem) "States house" aka the Senate, where party allegiance effortlessly trumps allegiance to state. Here, each of the 6 original states gets 10 senators, NSW has a state population of about 7m and Tasmania has a state population of about 0.5m. (I guess the California-Montana disparity is way worse)

Then there are the constitutional amendment provisions that entrench the very inequality that needs to be addressed.

Good luck, but don't hold your breath.

# posted by

AlanDownunder : 6:55 AM

States have "powers" but among them include protecting people's rights. Federalism is in place to further this end.

"Federalism" typically refers to the limited powers of the federal government, all remaining powers being reserved to the states or people, respectively (to paraphrase the 10th A). The federal government is responsible for protecting rights within its sphere of legitimate authority, and the republican way to do that is to assure that people are represented in Congress so that their concerns can be heard and addressed. That's really the whole point of Federalist 10 and it's why Madison so vehemently opposed equal representation in the Senate.

I'm not suggesting a unicameral legislature; I don't favor that. I think the bicameral dynamic, especially with the different term lengths, hedges the risks of majority tyranny.

Prof. Levinson strongly supports a more democratic system. So do I, though I don't agree with him on all points. There's no way to accomplish that goal under the current Constitution because of the undemocratic Senate. My suggestion provides a way to move in that direction (gradual steps are generally best) which can be accomplished under the existing amendment process.

# posted by

Mark Field : 12:11 PM

The world in which the people lived at the time of the writing of the constitution was different. I think of this when modern court cases such as the Rapanos combined cases in 2006 attempt to parse arcane language into a new construct to protect environment based on commerce, as if environment's sole benefit is pecuniary.

In late colonial times one could find wild game to hunt nearby; trout streams still had native trout. This was the Macluhanesque medium is the message in the constitution, so fundamental that the founders, although recognizing it as the backdrop for their political writing, did not assign to it a salient role in the founding laws.

Recently I have noticed on our half section of land the merits of long years of careful maintenance and stewardship. The urban dweller perspective is different. Low population density is a statistic, but the mines which produce the metals comprising consumer electronics are located out on those nondescript unpopulated, managed lands.

Consider the following comparison of the authority with which several senators variously speak, as a function, if you will, of the total population of their districts: in colonial PA, for example there were 434,000 people; in VA 697,000; each had 2 senators. The reason for tying the lower chamber to a more numerically representative proportionality is a reflection of the very rudimentary nature of that paradigm. Now, if we were to digress into a discussion of whether among 500,000 Big Sky State denizens one might find 2 persons of learning and character commensurate with service as a US Senator, maybe we might have more heated discussion. There are economic geographic reasons for state boundaries existing along their current borders. Maybe the convention to have would not be a constitutional one per se, but, rather, a convention at which all the states might discuss how to redraw interstate boundaries nationwide. It could be fascinating; all the politics and impact of the scale of the problem ML and Sandy Levinson highlight with 2 senators representing each state would be part of the barter, but the negotiation to redraw borderlines would be on a lower plane. I would imaging trading to be even more vigorous than the frontal effort at redefining the constitution. However, I would be open to a constitution rewrite, if only for the extraordinary revisionist effect it might have on stare decisis; I doubt that the current Supreme Court would be prepared to claim all past opinions would stand as a snapshot in a museum of time, if the constitution were to be rewritten.

However, I find most of the constitutional convention reconvening concept improbable. Consider that the US could not muster sufficient supermajority to pass ERA a while back; and I observe that often the most didactic partisans are the most disposed toward reinventing the constitution.

I see the constitution as a call to character, and would like to let it have another century of empiric effect, so we might assess its worth in 2106, sometime following the tricentennial. The nation is young.

# posted by

JohnLopresti : 1:06 PM

upward of 20 to 1?
----
75:1 in aggregate as I heard it pegged by Brian Mann in a talk about his current book, "Welcome to the Homeland: A Journey to the Rural Heart of America's Conservative Revolution".

# posted by

Anonymous : 2:54 PM

I've seen complaints about the senator thing before, and it doesn't really bother me. Like much of our government structure, it's a compromise. Compromises are by their nature imperfect. I come from a low-pop state (OK) and now live in a high-pop one (TX). I haven't noticed much difference in quality or power between their senators (given that they're almost all idiots anyway). If we're going to get rid of anything on the grounds that it's pointless and antiquated, we should get rid of the Electoral College.

And if we're worried about senators having too much power, maybe we should move to curtail abuses like earmarks and lobbyists in the capitol complex and things like that, rather than trying to mess with a fundamental structure of the legislative branch. And maybe require people to have some demonstrated ability in a field before they can be on a committee that seeks to regulate it (ie, everyone on the Judiciary Committee has to have a law degree, everyone on the Armed Services Committee has to have military experience, etc.). I know this one will never happen, it's just a thought.

# posted by

Slash : 3:35 PM

Anne, I am sorry if I implied that, since my point was just the opposite. For instance, Madison proposed a bicameral system, but his original plan did not supply equal votes for each state. State legislatures also generally are bicameral and both houses less malapportioned.

This underlines also that protecting states qua states does not req. each state having the same number. In the House, each state has to have at least one representative. Not equal representation.

I noted my problem with your proposal Mark. It arguably robs Peter to fund Paul, watering down the purpose of Senate in the promotion of democracy.

As to Brett, we are not talking overturning the whole thing. Many amendments, some like 17A which you clearly don't like, did change it some.

It is quite credible to suggest apportionment should be questioned given the various changes that have occurred, esp. since the 1960s. I don't think removing key responsibilities from the Senate is the best way to go, but it's a fair matter for discussion.

# posted by

Joe : 6:48 PM

@joe: I stand corrected.

# posted by

Anne : 7:21 PM

The worst that can be said of the Senate is that although it works in practice, it may not work in theory. Would you really have preferred the majoritarian branch to have criminalized therapeutic cloning, ended the estate tax, opened public parks to oil and gas production, and God knows what else? It would have done so in the last 2 years but for the Senate.

To criticize the most durable and beloved charter of government in the history of the world because it interferes with the plans of Tom Delay, that is indefensible.

# posted by

Timon Braun : 8:37 PM