Pages

Tuesday, January 14, 2014

The Senate is not now and never has been "democratic"

My latest missive on Al Jazeera online chastises the editorial page of the New York Times and others who declared that the very limited abolition of the filibuster in November has "returned the Senate to democracy."  A moments thought reveals that the Senate was never intended to be "democratic" if that is taken to mean roughly representative of the American population as a whole (as the House arguably is, putting partisan gerrymandering to one side and would certainly be the case if we modified our exclusive reliance on single-member geographical districts).  Perhaps there is something to be said for the Senate--though I am skeptical--but its "democratic" nature isn't one of them. 



29 comments:

  1. "Perhaps there is something to be said for the Senate"

    Not much in my opinion, and I have always vastly appreciated Mr. Levinson's willingness to say that.

    ReplyDelete
  2. I think giving a smaller body certain roles (like dealing with appointments and such) something to be said for the Senate. But, I'd prefer Madison's original preference as to apportionment there.

    Sometimes, words are a matter of degree. It's a bit more democratic.

    ReplyDelete
  3. The 17th amendment turned the Senate, which was supposed to be the states' lever over the actions of the federation they were joining, into nothing more than a particularly arrogant and ill apportioned House. About the only distinct purpose it serves today, is that by requiring legislation to pass two bodies, it becomes a little harder to pass it so fast that the public has no time to protest it.

    I would prefer that the Senate be returned to its original role, of the states' lever over the federal government. However, we already know from the history of the Senate prior to the 17th amendment that simply repealing the 17th would mean little. I really like the proposal, which has surfaced from time to time, of replacing the Senate with a body composed of the assembled state Governors. The "Saucer to cool the tea" function could be achieved in some other way, such as requiring votes before and after an election to pass legislation without a supermajority, or adding a body whose only job is to repeal ill advised laws.

    Much as I object to Sandy's regular shtick of attributing the consequences of an abysmal political class to a Constitution they largely ignore, there is no question the Constitution could stand some improvements in light of 200 years of experience with it.

    ReplyDelete
  4. I should add that the reason you'd want another mechanism for delaying laws if you went to the body of Governors approach, is that they really wouldn't have the time for doing the whole legislative job, just the parts reserved to the Senate, appointments and treaties.

    ReplyDelete
  5. Underlying this post and Sandy's op-ed are the matter of political dysfunction and the extent to which the Constitution may contribute to such dysfunction (assuming that there is indeed political dysfunction). This was the topic of the Conference at BU Law School on Nov. 15-16, 2013. (I provided comments on certain portions of the Conference at one or more posts at this Blog including the closing panel that included Sandy. I did not note any consensus on whether or not there was political dysfunction, and further if there were political dysfunction, whether or not the Constitution contributes to it.)

    BU Prof. Gary Lawson, on the same panel with Sandy, has made available his paper "One(?) Nation Over-Extended" via SSRN A link is provided at Larry Solum's Legal theory Blog. The note on the author includes this: "I am especially grateful to Sandy Levinson for his characteristically incisive thoughts and suggestions."

    After reading the paper, based upon upon my recollections of Sandy's several posts at this Blog on political dysfunction, I wondered if Prof. Lawson's paper reflects Sandy's views beyond the title. I have not seen Sandy's paper for this panel of the Conference and do not know if it is available via the Internet as yet to compare with Prof. Lawson's paper.

    Prof. Lawson's paper is a relatively short 22 pages double-spaced that is a fairly quick read. Prof. Lawson comes close to describing himself as "an anarcho-libertarian" and notes that "One person's dysfunction is another person's success."

    ReplyDelete
  6. "he 17th amendment turned the Senate, which was supposed to be the states' lever over the actions of the federation they were joining, into nothing more than a particularly arrogant and ill apportioned House."

    One has to wonder why someone who is usually an anti-elitist thinks that career pols like those in every statehouse are better served to divine the interests of each state than the actual people of each state.

    ReplyDelete
  7. Mr. W, Brett is not an "anti-elitist" as he reveres the antebellum Constitution, as noted by Brett in an earlier comment:

    "I would prefer that the Senate be returned to its original role, ..."

    which served the interests of chattel-propertied white men.

    ReplyDelete
  8. I still find the argument put forth by Brett wrong-minded.

    It would have more force if state legislatures had actual power to control senators directly. They did not. State legislatures, who are elected by the same people who elect senators today, appointed the senators. This is seen by looking at the Lincoln-Douglas debates. Did they appeal to the legislature? No. They appealed to the people who voted for the legislature.

    What difference of "lever" existed in 1910 and 1920? Originally, the Senate partially was seen as a more elite house, some states for example having higher property requirements or the idea a more elite group would be chosen. But, over time, such requirements went away. Also, in time, the people started to push for a direct right to elect senators.

    This was already starting to happen before the 17A. Unless it was blocked by amendment, it would have continued. The 17A largely merely sped up something that would happen anyway. It also was ratified because repeatedly senators -- helped by smaller bodies of electors -- were more controlled by special interests.

    The Senate still represents states as a whole. Each state has two senators. It is smaller and more mal-apportioned as to population. They are not just like the House. But, even if state legislatures picked them, they would probably mostly act the same way as they do today, especially since again, unless blocked, state populations would have pressed to make the legislative vote pro forma.

    The idea is posed to have state governors pick senators, as if this isn't a country but a coalition of states. This anti-Federalist approach seems to think improvement requires going back instead of forward after 200 years.

    I think the federalist republican approach better. The people from each state elect both state and federal officials. Let's make them per Madison apportioned by population. The Senate will have various functions such as appointments, ratifying treaties, trying impeachments etc.

    ReplyDelete
  9. The Senate was designed to be democratic by geography so that states would not dominate by population.

    Population proportionality is not the only measure of democracy.

    ReplyDelete
  10. Democracy: Middle French democratie, from Late Latin democratia, from Greek dēmokratia, from dēmos + -kratia -cracy (people + power)

    It is nonsensical to talk about democratic by geography. If you think rocks, and trees and rivers should have the franchise maybe the word you are looking for is Gaiacracy.

    ReplyDelete
  11. I will probably do a full-scale post about Gary's paper, but let me say for now that I think it is a profoundly important question that he raises: Is the United States simply too big to be effectively governed, so that one response is to support the breakup of the U.S. into smaller (and presumably more governable) units? (It is obvious that federalism has failed to square the circle of "dual sovereignty" as a mechanism of effective governability.)

    We tend not to take secession seriously as a political or theoretical issue, given, of course, the dismal background of the 1861 venture in secession. But consider that Scotland will be voting later this year on undoing the 1707 Treaty of Union, and there are other secessionist movements literally all over the world. Gary's essay is very much worth reading and thinking about.

    ReplyDelete
  12. Brad:

    The people of each state elect their Senators.

    Power + people.

    ReplyDelete
  13. Power + people/geographic malapportionment

    FTFY ;)

    ReplyDelete
  14. The current Hong Kong electoral system is best described corporatist or perhaps fascist if the term weren't so loaded. Half the seats in the legislature are elected by universal suffrage in (unequal size) geographical constituencies, while the other half are selected by various functional constituencies -- i.e. industry groups, labor groups, professional regulatory groups, and so on.

    The representatives of the functional groups are picked by people -- not computers or dogs or lots -- so would it make sense to call that portion of the system "democratic by sectors of society"? That's certainly how the government of China wishes to frame it, they talk of a "broadly representative" body.

    ReplyDelete
  15. Mr. W has it.

    The House and Senate are both democratically chosen.

    The debate is between proportional and geographic apportionment of the elected representatives.

    ReplyDelete
  16. I thank Sandy for his limited comments on Prof. Lawson's paper. I agree that Prof. Lawson's discussion on secession is excellent, including the situation involving 5 CO counties in their efforts to secede.

    Whether America is too big to govern is worthwhile raising. Perhaps such a discussion may lead to finding better ways to govern a big America and maintaining its best features both domestically and internationally. Unfortunately Prof. Lawson's several maps of how America might be broken up were not included with the SSRN download. If a serious discussion were to conclude that a physical breakup would be in the interests of American values, there would be difficult issues of fairness and justice. With such a breakup, might there then be a Second Articles of Confederation, including to address international issues in this globalization age with armed flare-ups. Hopefully any breakup would not return those many decades of racial divides.

    So maybe Prof. Lawson's paper will start a serious discussion that just might conclude that there is indeed political dysfunction. My reservations with Prof. Lawson's paper are that he seems to avoid squarely addressing such dysfunction's existence currently.

    I look forward to Sandy's full-scale post on Prof. Lawson's paper. I also look forward to Sandy's paper for the Conference..

    ReplyDelete
  17. Bart,

    The debate is over whether the Senate itself is democratic, not whether individual Senate elections are. That is why it seems to me your point about the latter seems unhelpful to answering the former.

    ReplyDelete
  18. The thought came to me that America, like certain banks, may be too big to fail. A break up of America would not be quite the same as the Soviet collapse. Maybe the breakup could be a variation on the EU, with the assumed benefit that all speak the same language. Schumpeter's "creative destructionism" may play a part. Imagine, "four (or five?) nations under God." But might God play favorites? Imagine four (or five?) constitutions and how they might differ. Imagine how four (or five?) breakup nations might address environmental matters, natural disasters, etc. Maybe imagining these and other issues attending a breakup into four (or five?) nations just might pull Americans together to make sure America can be governed well. Imagine.

    ReplyDelete
  19. Imagine four (or five?) breakup American nations and their separate immigration laws, possibly serving as barriers between people in such nations including border controls. And imagine how citizenship in one such nation might not be recognized in one or more of the other such nations. Imagine.

    ReplyDelete
  20. Imagine four (or five?) breakup American nations and how each may treat foreign commerce between those nations. Imagine how one or more of such nations may address the declaration of war against one or more of such nations. Imagine whether the decisions of SCOTUS would be honored by such nations' courts. Imagine.

    ReplyDelete
  21. Imagine if one or more of four (or five?) American breakup nations had a constitution that specifically prohibited political parties. [It has been said that our framers/adopters did not anticipate political parties such developed shortly thereafter.] Imagine how the constitutions of such nations might vary from our Constitution because of supposed lessons learned over the past 200+ years, as well as vary from each other. Imagine.

    ReplyDelete
  22. Imagine four (or five?) breakup American nations contemplating/confronting the role of originalism in the constitutions they adopt, including originalism with respect to provisions in our Constitution that may be replicated therein. Imagine.

    Speaking of originalism (as I often do), Jack Balkin's January 14, 2014 draft "Why Are Americans Originalist?" is a must read. A link to it is available at Eric Posner's blog that includes his comments on it. The paper is 29 pabes in length that includes 5 pages of Bibliography. The absence of footnotes makes it a quick read. Part VIII "Academic Originalism" (pp 19-23) is quite revealing But the entire article deserves a careful read. (To me, this article reads as complementary to Jack's "The New Originalism and the Uses of History" published in the Fordham Law Review last year.) I expect some in legal academia may be smarting from Jack's treatment in part VIII.

    ReplyDelete
  23. For those who browse Larry Solum's great Legal Theory Blog, a link is provided to Jack Balkin's new article, with the editorial "Highly Recommended. Download it while it's hot." As I suggested in an earlier comment, some in legal academia may find it hot - to handle.

    ReplyDelete
  24. Jack Balkin finally provides a link to his new article at this Blog with a simple opening that is quite modest concerning the aim of his paper:

    " ... an attempt to explain to non-Americans ..."

    Perhaps some Americans who believe in originalism may question why they do after reading his paper.

    ReplyDelete
  25. In Jack Balkin's recent paper, in part VIII "Academic Originalism" at page 21, first complete paragraph, lists various types of originalism developed in the legal academy, then stating:

    "Academic originalism offereed itself as a theory for correct judging, and, in some versions, as the one true and legitimate way to interpret the Constitution. It therefore became as much legal theology as legal science, and like other theologies, it is likely to split and fracture into multiple versions as different members of the faithful express their disagreements with each other. Moreover, the dialectical nature of the American legal academy virtually ensured that there would be no easy consensus on the merits of originalism, or on which form of originalism was the correct one."

    I'm not part of the American legal academy with its "dialectical nature," but I wonder if it is sort of a Tower of Babel despite (or due to?) common language.

    ReplyDelete
  26. Newsgaadi is a famous online news aggregator which features news from across the globe. We do post breaking news, political stories, global news, latest updates on science and technology, movie updates and sports news.

    ReplyDelete
  27. Newsgaadi is a famous online news aggregator which features news from across the globe. We do post breaking news, political stories, global news, latest updates on science and technology, movie updates and sports news.
    http://newsgaadi.com/

    ReplyDelete
  28. This comment has been removed by the author.

    ReplyDelete
  29. This was already starting to happen before the 17A. Unless it was blocked by amendment, it would have continued. The 17A largely merely sped up something that would happen anyway. It also was ratified because repeatedly senators -- helped by smaller bodies of electors -- were more controlled by special interests.
    Cheap Fifa 14 Ultimate Team Coins
    League of Legends elo boost

    ReplyDelete