Balkinization: The Nineteenth Century Foundations for the Stupid Senate: An Invitation for a Conversation

The Nineteenth Century Foundations for the Stupid Senate: An Invitation for a Conversation

Mark Graber

My dear Jeffersonian:

My immediate occasion for writing is the discovery that numerous members of the Thirty-Ninth Congress championed abolishing your bete noir, state equality in the Senate. One member declared, “In the Senate of the United States, the very first principles of representative equality are and will continue to be violated. The little State of Nevada, with one voter to about every forty in the State of New York, has the same representative power and influence in the Senate of the United States as the great State of New York.” Another opined, “Rhode Island with two Representatives, [should] not have the same power in the Senate that New York has, with thirty-one Representatives.” A third complained, “So far as representation in the Senate is concerned, one man in Rhode Island has a voice and power in the legislation of the country equal to eight men in Indiana.” Yet another speaker called for “an amendment of the Constitution readjusting senatorial representation upon a more just basis.” Your joy at these words may nevertheless be mitigated by knowing that they were spoken, respectively, by Representative Michael Kerr of Indiana, Representative Aaron Harding of Kentucky, Senator Thomas Hendricks of Indiana, and Senator Charles Buckalew of Pennsylvania, Democratic proponents of white supremacy who made these remarks in speeches opposing the Fourteenth Amendment. In 1866, such small population states as Rhode Island, Maine and Nevada were solid Republican states. Abandoning state equality in the Senate would likely augment Democratic power, thus weakening support for such Reconstruction measures as the Fourteenth Amendment, the Civil Rights Act of 1866 and military rule in the South. The cheap question is whether you would have urged your fellow Republicans to act on principle and modify state equality in the Senate, even at the cost of weakening political support for civil liberties.

My real question is the extent to which you think Republicans in 1866 are an appropriate model for political behavior today. Consider several questions raised by their behavior with regard to state equality in the Senate. Republicans when passing Section 2 of the Fourteenth Amendment repeatedly insisted that some variation of one person/one vote was a foundational constitutional principle. Democrats consistently brought up the Senate to highlights the limits of that commitment to political equality. Does this give us some sympathy for Republican supporters of state equality in the Senate, who in good faith might see this unfortunate feature of the American constitution as a bulwark against abortion rights (a practice they regard as analogous to murder)? For that matter, if we understand why Republicans placed antislavery commitments above political reform, can we understand why many Republicans today are willing to hold their nose and support Donald Trump as long as they think his policies are better than the Democratic alternative. What does Republican refusal to tinker with state equality in the Senate say about Democratic politics. Are contemporary Democrats too principled or not principled enough? What compromises would we suggest our political allies should make for the broader cause (and what is that broader cause)?

Consider in this vein the Republican violation of the antebellum convention that territories should not be admitted unless their population was as great as the least populated state. Republicans shattered that convention when admitting Nevada during the Civil War. Not coincidentally, the Republican leadership put up for debate at the same time the Fourteenth Amendment was being considered bills granting statehood to grossly underpopulated Colorado and Nebraska. No one seriously thought the case for statehood was anything other than four more Republican votes for Reconstruction (an assumption that, by the way, proved wrong in the long run). What do we make of this behavior in light of Steven Levitsky and Daniel Ziblatt’s claim in How Democracies Die that constitutional democracies depend on the maintenance of certain longstanding conventions, that their violation threatens democratic and constitutional collapse. Is the only difference between Thaddeus Stevens and Donald Trump that the former violated conventions for far better causes than the latter? Is Republican behavior in 1866 the sort of politics that increasingly disgusts the American people or, as I think, a demonstration that all constitutionalism is a form of politics, that the worst political fantasy is the notion that we can escape from politics.

Given your concern with constitutional reform, I wonder what you make of these related incidents, both the Democratic call for a constitutional amendment to modify state equality in the Senate and the Republican admission of underpopulated states. More generally, given our shared commitments to an argument open to all, I am curious as to what our friends on Balkinization and outside make of this behavior and whether thinking about Republicans and state equality in the Senate helps with thinking about our contemporary constitutional predicaments. I confess to hoping that people do write in this space and others and that, when they do write, they think of the name they wish to write under. Our first set of constitutional framers used pseudonyms to communicate their commitments. I am curious as to what names we might think appropriate in our time, even as I have not yet figured out my pseudonym.

Posted 8:40 PM by Mark Graber [link]