Balkinization: A discussion about the Senate.

Comments:

I just want to point out this excellent letter to the editor:

To the Editor:
In his enthusiastic review of Ezra Klein’s “Why We’re Polarized” (Feb. 9), Norman J. Ornstein, like Klein, dances around the all-important issue of how we might attain badly needed constitutional reform. After laying out the egregious realities of the formal political system established by the Constitution, most obviously the Electoral College and the Senate, Ornstein writes that “at some point, the fundamental legitimacy of the system will be challenged.” Why hasn’t that point been reached already, given the practical reality that a minority of the voting population controls the Senate, the White House and, therefore, the federal judiciary?
More to the point, neither Ornstein nor Klein addresses the fact that the Constitution is inordinately hard to amend, so that the only practical way, say, to address the present role of the Senate is through a constitutional convention, most certainly not by expecting the existing senators to ask serious questions about their bloated powers. Ornstein concludes by expressing his “fear” that a “long and torturous” road lies ahead of us. Perhaps we should recognize, more accurately, that we’re already about to careen over a cliff and that the Constitution basically leaves us without brakes.
Sanford Levinson
Austin, Texas
The writer is a professor of government at the University of Texas, Austin, and co-author of “Fault Lines in the Constitution.”
https://www.nytimes.com/2020/03/13/books/review/letters-to-the-editor.html

# posted by

Henry : 7:20 AM

Good letter.

# posted by

Mark Field : 9:00 AM

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Bart DePalma : 9:08 AM

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Bart DePalma : 9:08 AM

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# posted by

Bart DePalma : 9:23 AM

Sandy:

The Senate is not "affirmative action" for two reasons: (1) the Senate divide power equally among sovereign states, while the EC is a hybrid, dividing proportional power in winner take all states, and (2) when combined with a House based on proportional representation, the Senate and Electoral College represent a check, not an independent source of power over others. Election of our bicameral Congress and POTUS are designed to promote supermajority rule.

That being said, the Senate lost any pretense of deferring to state power (federalism) with the advent of the 17A, progressive centralized power and a bipartisan political class dedicated to maintaining their exercise of that power.

I found your passing note of support for bicameralism to be interesting. I always thought you wanted a unicameral parliament. What type of bicameral Congress do you support?

# posted by

Bart DePalma : 9:23 AM

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# posted by

Joe : 10:08 AM

It's fair enough to say that, but as noted, few will listen to an hour and forty five minute discussion. If that is your desire, it is perhaps best for this time just to flag the conversation without comments. You can set up another open-thread to comment on something noted there or perhaps to discuss the general question.

Thanks for posting the letter. I again will note that the Constitution itself did come about via convention and it was aided by the Articles not being there for that long. Among other things. And, they then made it easier to ratify. Another major changing point occurred during the Reconstruction, which also was a special situation.

There were some changes during the 20th Century of note though many are tweaks and others, also, came at special moments (the 22A or the 26A, particularly). The watered down 23A involving D.C. is an example of the limited results.

# posted by

Joe : 10:10 AM

I'd like to endorse Joe's suggestion: If you've got some source material you want people to look at before commenting, I'm fine with that. Post something about it without comments activated, and go with a second post permitting comments a few days later. The capacity to comment times out here fairly quickly to expect people to study before commenting.

# posted by

Brett : 10:40 AM

Bircher Bart's two points don't in any way address Sandy's point that the Senate is geographic affirmative action (a la Lani Gunier). Exactly what affirmative action does is provide 'plus factor' points to the already existing base of qualifications. Thus, affirmative action may give plus points to a student whose SAT scores (the House in this analogy) are low.

"That being said, the Senate lost any pretense of deferring to state power (federalism) with the advent of the 17A, progressive centralized power and a bipartisan political class dedicated to maintaining their exercise of that power."

This is especially laughable. Bircher Bart laments that the 17th Amendment empowered a 'bipartisan political class' by putting the vote in the hands of the people instead of...a bipartisan political class!'

# posted by

Mista Whiskas : 11:12 AM

Mr. W:

Sovereign states requiring equal representation in a union of states is hardly unheard of. See the UN and NATO.

Nothing says a representative democracy must be based on population rather than political state or geography.

By definition, there is no "affirmative action" in a system of equal representation.

# posted by

Bart DePalma : 12:24 PM

Affirmative action is to add an additional criteria to others.

So an applicant's race or geography may add to the additional criteria of test scores or GPA.

Democratic criteria involves majorities. A system which adds an additional criteria like 'where geographically the majority comes from' is the definition of affirmative action.

# posted by

Mista Whiskas : 12:45 PM

Mr. W: Affirmative action is to add an additional criteria to others. So an applicant's race or geography may add to the additional criteria of test scores or GPA.

I suppose "additional criteria" is one way of referring to a system which favor an applicant based on race and/or gender in a selection which is supposed to be based on merit.

"Affirmative action" in a system of equal representation in a union of sovereign states would be the Security Council at the UN, granting additional powers to a subset of states.

Democratic criteria involves majorities.

True. In the case of equal representation of states, a majority of states generally rules.

# posted by

Bart DePalma : 1:12 PM

Affirmative action would be adding extra representation for a delegation just because it's from a certain geographical/political unit.

# posted by

Mista Whiskas : 4:49 PM

Mista Whiskas said...Affirmative action would be adding extra representation for a delegation just because it's from a certain geographical/political unit.

Every state has equal representation in the Senate.

# posted by

Bart DePalma : 6:58 PM

Giving sparsely populated Wyoming equal representation to California is the epitome of affirmative action.

# posted by

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