Balkinization  

Friday, January 01, 2010

Population of the American states and the Senate

Sandy Levinson

Wikipedia has a very helpful entry on the population of the US states. One gets to 50% of the total population, according to 2008 census estimate, with the nine largest states, California, Texas, New York, Florida, Illinois, Pennsylvania, Ohio, Michigan, and Georgia. (Note, though, that the percentages are calculated by including the populations of US territories such as Puerto Rico and the District of Columbia, which, of course, have no voting representation in Congrees.) So one might divide the Senate into two groups, one of 18 senators who represent a majority of the population, the other of the remaining 82 senators who represent slightly less than 50% of "we the people." If one adds four more states, North Carolina, New Jersey, Virginia, and Washington, one reaches 60% of the total population, and adding yet eight more states, ending with Minnesota, reaches 75%.

So what this means is that 42 senators represent 75% of the population, while the remaining 58 (beginning with Colorado and going through Wyoming) have just short of a filibuster-proof majority in the Senate while representing, by definnition, less than 25% of the total population. It is possible, of course, that 2010 census figures will demonstrate that, say, it would take the top 22 states, with 44 senators, to get up to 75% of the population, so that the remainder of the population would have "only" 56 senators.

I suggest that there is no more merit to this configuration of power than there is, say, to the present allocation of veto power in the Security Council of the United Nations or the assignment of independent representation in the General Assembly, prior to 1989, to Ukraine or Byelorussia. All of these can be readily explained as the result of "necessary" compromises at the time of the formation of the institutions in question. But, of course, the same is true of the 3/5 compromise re the "representation" of slaves. The inability of the Security Council to reform itself, because of the assignment of veto powers, is a major problem with the contemporary United Nations. Ditto the Senate. Many people probably don't really care about the UN (and may even view it as basically illegitimate); they obviously don't really want a more "functional" Security Council. But can we afford the same complacence about the American government and the egregious Senate?

Comments:

There are those - the Founding Fathers who designe the system this way among them - who would say this is a feature and not a bug.
 

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This line of reasoning has become quite common, and I always find it startling and frightening.

"Functioning" government, weird as it sounds, is not always good government. The Senate plays an important counter-majoritarian role that, as the commentator above remarked, is indeed a "feature" and not a bug. Of course the Founding Fathers would agree, but so would the residents of places like, say, Battle Mountain Nevada, where our country's nuclear waste goes, or the residents of that gigantic swath of country "flyover country" whose blood is being spilled in Iraq and Afghanistan.

You have the House. You have the Executive. By and large (given educational pedigrees of appellate judges) you have the Federal Courts. So for God's sake, leave us half of the Senate!

-Idaho Kid.
 

Patrick:

You have the House. You have the Executive. By and large (given educational pedigrees of appellate judges) you have the Federal Courts. So for God's sake, leave us half of the Senate!

Since Wesberry v. Sanders, we all have the house equally. That is, we are more or less (and since I live in Utah, who was the next state in line to get a representative in 2000, it's likely to be less) represented equally from a numerical perspective. Rural voters are overrepresented in the electoral college, so urban voters do not have the executive in any normal sense of the verb "to have." Federal district court judges are more or less selected by the senators of the state in which the district court sits, and appellate court nominees have to be approved (de facto) by a 3/5 supermajority of senators.

In terms of representation in government, people from small states are overrepresented at every level of government except possibly the house (although because rural districts tend to be safer, rural interests tend to prevail in the house as well). To believe that somehow people from small states deserve more representation because they are more spread out displays either delusions of grandeur or the principles of representative government. Either way, it would help to read a little Justice Warren:

Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests. As long as ours is a representative form of government, and our legislatures are those instruments of government elected directly by and directly representative of the people, the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system. It could hardly be gainsaid that a constitutional claim had been asserted by an allegation that certain otherwise qualified voters had been entirely prohibited from voting for members of their state legislature. And, if a State should provide that the votes of citizens in one part of the State should be given two times, or five times, or 10 times the weight of votes of citizens in another part of the State, it could hardly be contended that the right to vote of those residing in the disfavored areas had not been effectively diluted. It would appear extraordinary to suggest that a State could be constitutionally permitted to enact a law providing that certain of the State's voters could vote two, five, or 10 times for their legislative representatives, while voters living elsewhere could vote only once. And it is inconceivable that a state law to the effect that, in counting votes for legislators, the votes of citizens in one part of the State would be multiplied by two, five, or 10, while the votes of persons in another area would be counted only at face value, could be constitutionally sustainable.
 

almondwine:

I don't think it denigrates the authors of the Constitution to admit that they were politicians and not mystics. I think many of the founders would look upon the cult of the founders with horror--the words of the founders are fetishized while the principles of practical reason are abandoned. To say that the founders likely thought unequal representation in the senate as a feature not a bug does not mean that we should conclude, 200+ years later, that it therefore should not be changed. This country has been held hostage for far too long by the dead hand of the founders. Let us be guided by reason, as they would have been--rather than some disturbing form of ancestor worship.
 

The Kennedy Center recently honored Mel Brooks for his contributions to the arts. (Is the Mark Twain award next?) His 2000 year old man schtick was of course included in his "resume" of achievements in entertaining us over the years. Nate W's second comment on the founders reminded me of a comment I made a couple of years ago (perhaps at this Blog) of the need for a similar schtick with a founder/framer after 200+ years reacting to events subsequent to the Constitution and the Bill of Rights. If the dead hand is to continue to rule today with all the changes that have taken place over such 200+ years, then perhaps a little schtick - a song, a dance, a little seltzer in your pants - is appropriate to put us in the right frame of mind. I once suggested a Monty Python type search for the "Holy Grail of Constitutional Interpretation" to address the battle of whether the Constitution is really lost (a Randy thought!) or in the mind of the beholder (originalist, textualist or living constitutionalist). Then we had Heller with its 71 briefs on the Second Amendment's meaning (at the federal level) and now we have McDonald v. City of Chicago with perhaps a few less but more complicated briefs in efforts to extend the Second Amendment to the States. Maybe full employment for constitutional scholars is a good thing (or not). But it's going in the direction of a big shoot-out as constitutional yahoos seek to add notches to their gunbelts. If it weren't so dangerous, it might be funny - like connecting health care reform to gun rights.

But who might be appropriate to play the founder/framer for this schtick?
 

As a practical matter, how often do the Senate votes actually line up along the state population dimension? Yes, theoretically nine or ten states could win every vote in the House, states with 25% of the population could win every vote in the Senate.

But how often does it happen that way?

As a side issue, are you at all concerned about the way that, with quorum requirements being routinely evaded, the House and Senate are quite often deciding things with members representing a small fraction of the population being present? Sometimes as few at three or four members.

Are you concerned about voice "votes" that are only nominally votes, with the Nays ignored if the leadership finds them inconvenient?

Are you concerned about votes held without the text of bills having been released, which leads directly to bills being written after they're voted on?

Are you concerned about the enrolled bill rule allowing the leadership to make laws the chambers didn't actually vote on?

Our representative democracy is broken in so many ways you could scarcely count, have you bothered to establish that this 'problem' with the Senate is actually a problem in practice? Because those other issues I mentioned certainly are.

For my part, I think the Senate lost a good deal of it's point with the 17th amendment. Structurally, it made sense in a federation of sovereign states, for the state governments to be represented in one federal body, and the state populations to be represented in the other. You'd like the Senate to be just another House, but what's the point in having two Houses? Might as well just go unicameral.
 

Brett concludes:

"Might as well just go unicameral."

But perhaps there should be staggered terms: A three-year term, with one-third elected each year.

As to Brett's asides: yes, I am concerned. But I've got no standing.
 

Things are somewhat different than they were in 1787. The population numbers alone -- consider the original allotment for the House. The largest was eight, the smallest one. The smallest is still one. The largest is 53. Other things changed too.

The idea of a Senate can still be good without all of the glaring aspects of it today, including the power of one or two to hold back legislation in ways that (even if conceivably possible) was not present back in the day.

For my part, I think the Senate lost a good deal of it's point with the 17th amendment.

Don't see it, especially since states already were beginning to use the direct election rule individually. It just made a rising trend the general rule.

The Senate doesn't lose most of its "point" because instead of the people in specific states as whole electing them indirectly (they elect state legislators, who choose senators), they did so without the middleman.

Structurally, it made sense in a federation of sovereign states, for the state governments to be represented in one federal body, and the state populations to be represented in the other.

It did make sense. Giving them equal representation not necessarily. The issue of slaves was tweaked, recognizing their special situation.

If slaves could be counted differently, in effect giving a select group of slave state residents more power, something could be done to recognize California should not have the same power in the Senate as Delaware.

You'd like the Senate to be just another House, but what's the point in having two Houses? Might as well just go unicameral.

Somehow even after the reapportionment cases, nearly every state legislature finds a "point" to having two houses. For instance, the Senate would still be smaller, have certain special roles, represent a broader range of people per senator, and so forth.

SL might want to toss out the baby with the bathwater, but we can regulate the water instead. It arguably would readjust things more in tune with the original dispensation in certain ways.
 

"If slaves could be counted differently, in effect giving a select group of slave state residents more power,"

A pet peeve of mine: The 3/5th compromise reduced the representation of slave states. Granted, it would have been nice if their representation had been reduced more, but that's what made it a "compromise".
 

Brett:

"A pet peeve of mine: The 3/5th compromise reduced the representation of slave states. Granted, it would have been nice if their representation had been reduced more, but that's what made it a 'compromise'."

It might have been nicer (i.e., fairer) if the compromised group had the vote, at least to the extent of the compromised basis. But how is it a "compromise" when the truly compromised group had no say in the matter? The slave states got their cake and ate it too.
 

Gee, where is the mystery?

The primary purpose of both the Senate and the Electoral College was to protect the institution of slavery, and they were quite effective... Right up to the point where the South finally succumbed to hysterical dementia much the way that Republicans have today.
 

To say that the founders likely thought unequal representation in the senate as a feature not a bug does not mean that we should conclude, 200+ years later, that it therefore should not be changed. This country has been held hostage for far too long by the dead hand of the founders. Let us be guided by reason, as they would have been--rather than some disturbing form of ancestor worship.

A large part of the ancestor worship which attributes the Senate to "the Founders" indiscriminately involves ignoring the vehement opposition of many "Founders" to the Great Compromise.

Here, for example, is James Wilson:

“To the legitimate energy and weight of true representation, two things are essentially necessary. 1. That the representatives should express the same sentiments which the represented, if possessed of equal information, would express. 2. That the sentiments of the representatives … should have the same weight and influence as the sentiments of the constituents would have, if expressed personally.

To accomplish the second object, all elections ought to be equal. Elections are equal when a given number of citizens in one part of the state choose as many representatives as are chosen by the same number of citizens in any other part of the state. In this manner, the proportion of the representatives and of the constituents will remain invariably the same.”

Hamilton: “Another destructive ingredient in the [New Jersey] plan is that equality of suffrage which is so much desired by the small States. It is not in human nature that Va. & the large States should consent to it, or if they did that they should long abide by it. It shocks too much the ideas of Justice, and every human feeling. Bad principles in a Government, though slow, are sure in their operation and will gradually destroy it.”

And Madison:

“Mr. MADISON expressed his apprehensions that if the proper foundation of Government was destroyed, by substituting an equality in place of a proportional Representation, no proper [federal government] would be raised … It had been very properly observed by [Mr. Patterson, the sponsor of the New Jersey Plan] that Representation was an expedient by which the meeting of the people themselves was rendered unnecessary; and that the representatives ought therefore to bear a proportion to the votes which their constituents, if convened, would respectively have. Was not this remark as applicable to one branch of the Representation as to the other? … He enumerated the objections against an equality of votes in the [Senate], notwithstanding the proportional representation in the [House]. 1. the minority could negative the will of the majority of the people. 2. they could extort measures by making them a condition of their assent to other necessary measures. 3. they could obtrude measures on the majority by virtue of the peculiar powers which would be vested in the Senate. 4. the evil instead of being cured by time, would increase with every new State that should be admitted, as they must all be admitted on the principle of equality.”

And let's not forget that even the House is heavily biased towards rural areas. CA has 70 times the population of WY but only 53 times as many representatives. Nice of WY to let us have them.

The 3/5th compromise reduced the representation of slave states.

Whether it "reduced" the representation depends on what your starting assumption is. If you assume that all people was the default count, then you're right. If you don't make that ssumption, then it was a gift to the South.
 

Prof. Griffin didn't open comments for his post on Gordon Wood's "The Creation of the American Republic", so I'll comment here. The book is magnificent; I can't praise it enough.
 

Mark:

After reading Prof. Griffin's post, I decided to get to Wood's The Creation of the American Republic, 1776-1787 fairly soon. Then I learned of Wood's recent (2009) Empire of Liberty: A History of the Early Republic, 1789-1815. I'll take both from the library if available but I'm not sure in which order to read them. These books were published 40 years apart and out of laziness I may be tempted to read the later one first. (But, I may have to figure out what happened to 1788.)
 

Shag, if I were you I'd read the later book first. "Creation" is much denser; reading "Empire" first will ease you into it.
 

“I suggest that there is no more merit to this configuration of power than there is, say, to the present allocation of veto power in the Security Council of the United Nations or the assignment of independent representation in the General Assembly, prior to 1989, to Ukraine or Byelorussia.”

I am having trouble following your theory of legitimacy or “merit.” Votes in the General Assembly are based on “one nation, one vote,” which presumably you would view as suboptimal for the same reasons that you dislike the Senate. There are, of course, other problems (at least from the standpoint of democratic theory) with the General Assembly, such as the fact that many of the nations represented are not in any sense democratic.

One could, of course, argue that representation in the GA should (a) be based on population and/or (b) confined to states that have a plausible claim to represent their populations. Given the current state of affairs, however, the fact that representation was once given to some non-democratic “nations” that were only nominally independent seems like a fairly trivial complaint. No doubt the decision to give Ukraine and Byelorussia representation in the GA was arbitrary and unprincipled, but is that really a surprising outcome when one is negotiating ground rules with Stalin’s USSR? In retrospect, the decision was at worst harmless, and arguably beneficial to the extent that it legitimized the claim of de jure independence by these nations.

The rather larger problem would seem to be with the legitimacy of the GA itself, at least to the extent that it purports to be able to make decisions binding on its member states. But here the Security Council and the veto power are intended as counterweights, by making important decisions impossible without consensus among the “great powers” (excepting situations where one of the great powers forgets to show up, as in the Korean conflict).

It is not clear whether your objection here is to the existence of the Security Council and/or the veto power, or simply to the identity of the nations entitled to exercise a permanent veto. No doubt one can criticize any of these aspects as arbitrary to a certain extent, but compared to what? What is the standard by which you evaluate the merits of any particular configuration of power?

On the issue of the Senate, I would pose the following question. Supposing we held a nationwide vote on the question of abolishing the Senate (or changing the basis of representation), but with the proviso that the voters of each state would also be asked to choose whether their state should join a Senate-less union. If a majority nationwide chose to abolish the Senate, it would be done, but at the same time no state whose voters chose not to participate in the new arrangement would be required to do so. Would that be more or less legitimate/preferable, in your view, than only allowing voters to choose whether or not to abolish the Senate?
 

the residents of that gigantic swath of country "flyover country" whose blood is being spilled in Iraq and Afghanistan.

I'm sick and tired of this implicit insinuation that the coasts provide no human grist for the mill of war. The military has plenty of people from all the states in the country, not just the stuff in the middle.

In fact, if you rank the states by the most losses in the recent wars, the top nine states are:
1. California (562)
2. Texas (470)
3. Florida (247)
4. New York (237)
5. Pennsylvania (234)
6. Ohio (208)
7. Illinois (204)
8. Michigan (175)
9. Georgia (161)

You can see that this distribution is eerily close to the top nine states by population, isn't it?

Please quit beating the "we're more patriotic than you" drum and focus on the "counter-majoritarian" portion of your argument.
 

A pet peeve of mine: The 3/5th compromise reduced the representation of slave states.

It still, as I said, "in effect" gave "a select group of slave state residents more power."

It should be noted that part of the compromise, though in the scheme of things it had little real effect, is that direct taxes were allotted in the favor of slave states too.

As to ancestor worship, the worship so to speak is usually to those who support the institution in question. Many opposed the Constitution as a whole. And, even if they hated the idea, the people cited went along with it as a reasonable compromise. They, like some Dems now on health care, later defended it.

They therefore "owned" it.
 

The idea the Senate was primarily a means to protect slavery does not explain by bicameralism continues in nearly every state in the union.

As to Wood, I did not read the tome noted, but did find some of his other writings were very good. One interesting example is his reply found attached to Justice Scalia's A Matter of Interpretation.

Here's a Booknotes interview for one of his works.
 

PMS:

Thanks for that link. I'm with you in being tired of this 'we are better citizens than you are' schtick (minus seltzer).

I also agree with Nate W: "Let us be guided by reason, as they would have been--rather than some disturbing form of ancestor worship."

I think many of them would have be stunned by both the current ineffectiveness of our system and by our worship of them.
 

By the way:

HAPPY NEW YEAR TO ALL.
 

The idea the Senate was primarily a means to protect slavery does not explain by bicameralism continues in nearly every state in the union.

Both can be true. Bicameralism serves legitimate separation of powers interests, as the Founders were well aware.* Such legislatures in the states don't suffer from being undemocratic since the one person one vote decisions of the mid 60s.

*James Wilson, for example: “In order to control the Legislative authority, you must divide it."
 

As a citizen of the geographically large, but relatively population poor state of Colorado, I fully support the structure of the Senate. The Senate is the only voice we have in the national government. The alternative is to leave smaller population flyover states left completely at the mercy of arbitrary rule by far away high population megalopolises.

The firewall of the Senate became even more important after the 20th century courts gutted the constitutional protections of state sovereignty and unconstitutionally granted legislative powers to the unaccountable federal bureaucracies which are a virtual second government in western states where well over half of the land is still under federal control.

Arbitrary rule by folks in other states is why you keep having sage brush rebellions and secession movements out west.
 

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"Both can be true."

I don't disagree that slavery was part of it, but both institutions referenced probably would have been set up even without slavery.

Slavery is not why bicameralism was present in the mother country or in states where it was a minor institution at the time of the C. The EC also was put in place for various reasons, not just slavery.

"is the only voice we have in the national government"

Bart is not the only one who makes some form of this argument.

It is unclear how Colorado only has a voice in the Senate. They have a House allotment, as I recall. The federal courts still provide review though he might not agree with them in various cases. Political compromise requires swing voters, often from Western locales, have their say. Various constitutional provisions also bar state favoritism in certain cases.

And so forth. It also is notable that state interests aren't the only concern of residents of CO. If the Senate blocks something a majority wants, members of said majority are likely to reside there too.

The Senate often doesn't benefit states qua states. It often benefits certain interests. Take slavery. Slavery burdened many poor whites in slave states, but certain state legislatures were slanted away from them.

The burden of the 17A, even for "states" also is questionable for that reason. The ultimate value of the Senate as now set up to states as such is open to question. See also the EC, where certain states tend to benefit, not states as a whole.
 

Joe blathered...

"The idea the Senate was primarily a means to protect slavery does not explain by bicameralism continues in nearly every state in the union."

How typically Republican of you, as if bi-bicameralism has anything to do with it. The issue is equal representation, and what I said was nothing more or less than a historical fact. It would be possible to have equal apportionment with one, two, or a dozen houses in the legislative branch. Nebraska has been getting along with only one house for a long time.

I'd be willing to bet:

1) That MOST states have approximately equal districts in BOTH chambers.

2) That NO state has a method of apportioning seats in the second chamber that's as unfair as the U.S. Senate.

3) That the existing set up could be made a lot better by the simple expedient of giving each Senator one vote for every seat their state has in the House. California gets 53 votes for each of its Senators, Texas gets 32, etc, and Wyoming gets 1. End of problem.
 

"It still, as I said, "in effect" gave "a select group of slave state residents more power."

It should be noted that part of the compromise, though in the scheme of things it had little real effect, is that direct taxes were allotted in the favor of slave states too."


Where "more" means, "not as much less as I would have preferred". Less is less, even where we'd prefer none at all.

I think there's a question here, of what the design of government is meant to optimize. Representation? Stability? Freedom? There's no particular reason to suppose that the optimal governmental design for one will produce another. The Senate was not intended to be a representative institution. That was the House's role. The Senate was supposed to counter the House's democratic tendencies, while providing the state governments some leverage within the federal government.

We've made "democracy" somewhat of a object of worship, but really, without something to restrain it, it's just another system of oppression. On a statistical basis I suppose it's a bit better that the minority be oppressed by the majority, rather than the other way around. But avoiding oppression is still better, and that means you need something to impede democracy.

That used to be the Senate. What's going to take it's place?
 

Boy, have we all missed the point. The Senate was created in the Constitution to represent the states and to protect each state's sovereign rights.

The Constitution originally intended for senators to be selected by each states individual legislatures.

That article of the Constitution was repealed by the Seventeenth Amendment was passed by the Senate on June 12, 1911, the House of Representatives on May 13, 1912, and ratified by the states on April 8, 1913. The amendment supersedes Article I, § 3, Clauses 1 and 2 of the Constitution, transferring Senator selection from each state's legislature to popular election by the people of each state (Wikipedia, "Seventeenth Amendment."

Now we effectively have 'two' houses of representatives, with the senate rubber-stamping the house.

In November 2010, I intend to vote for senators and representives who intend to repeal the Seventeenth Amendment and to enact term limits. This is the only way to destroy the congressional dynasties that serve only the special interest groups supporting their candidacies on the backs of the taxpayers.
 

I think personal attacks like "blather" is more "typically Republican" than my allegedly mistaken attempt at discussion. Just saying.

The issue is equal representation, and what I said was nothing more or less than a historical fact.

"primary purpose of both the Senate and the Electoral College"

So, I'm supposed to take "equal representation" as implied here? Fine. It still is an overstatement.

The rule before was one vote for each state delegation, reflecting a "confederation" of states. It is "possible" for them to have jumped to equal representation but a pretty radical one. Again, slavery was surely part of it, but it is quite telling it continued long after slavery did.

That MOST states have approximately equal districts in BOTH chambers.

Well, yes, the SC said they had to. Before it did, they were often unequal.

2) That NO state has a method of apportioning seats in the second chamber that's as unfair as the U.S. Senate.

Some states had a level of unfairness quite comparable with similar effects. This is why Warren thought the reapportionment cases so important.

3) That the existing set up could be made a lot better by the simple expedient of giving each Senator one vote for every seat their state has in the House.

In my less "Republican" moments, as you might recall, I suggested that the Senate can be reformed. Don't know about this idea, but hey, I'm game.

BTW, as to Brett's reply, "more" means "more," it is not some personal expression of my preferences on the matter. We also have a "republican" system of government. There still can be a debate on how undemocratic it should be.
 

Joe said...

It is unclear how Colorado only has a voice in the Senate. They have a House allotment, as I recall.

A tiny fraction of the overall allotment and less than NYC.

It also is notable that state interests aren't the only concern of residents of CO. If the Senate blocks something a majority wants, members of said majority are likely to reside there too.

The tradeoff of not enacting some bill when CO happens to be part of the majority is far outweighed by the protection provided by a geographically based body like the Senate.

More often, largely rural states like CO do not share the same interests as one of the megalopolises and will not be in a majority absent the Senate.
 

"A tiny fraction of the overall allotment and less than NYC."

To clarify, you have a voice, but it is "tiny." [Well, at least in some ways. Not as much in others.] It is less than NYC because NYC has so many people. Also, proportionally, your two senators is a "tiny" voice. In fact, though I admit it is sorta cheating, if I round off, the House and Senate allotment both are 2% of the whole.

The tradeoff of not enacting some bill when CO happens to be part of the majority is far outweighed by the protection provided by a geographically based body like the Senate.

This depends on who you talk to.

More often, largely rural states

Various small states are not really that rural.

like CO do not share the same interests as one of the megalopolises

If you poll your current delegation, it is unclear just what "interests" are most important to them. Overall, they share interests with big state residents in quite a lot of ways.

To the degree their interests are different, why specific regional interests that involve small groups of people should get special dispensation to the degree now in place is quite debatable.
 

I don't disagree that slavery was part of it, but both institutions referenced probably would have been set up even without slavery.

Agreed. In fact, the expectation was that it would be the House which would protect the South and the Senate which would protect the North. The Founders (a) saw that the Southern states were much larger geographically; and (b) failed to anticipate the industrialization of the North with its accompanying population densities. As things turned out, it worked in reverse because slavery wrecked the economies of the South and discouraged immigration, so it was the North which benefited from the House and the South from the Senate.

I think there's a question here, of what the design of government is meant to optimize. Representation? Stability? Freedom?

According to Madison in Federalist 10, the national government would do all three. Of course, Madison considered a representative Senate crucial to the success of that design.

The Senate was not intended to be a representative institution. That was the House's role. The Senate was supposed to counter the House's democratic tendencies, while providing the state governments some leverage within the federal government.

Well, the Senate was supposed to be representative; the debate was about who or what it should represent, people or states.

As for the rest, some of the Founding generation did think this. Others, as the quotes above demonstrate, did not.

But avoiding oppression is still better, and that means you need something to impede democracy.

Most everyone agrees with this. But each specific case of "impedence" has to be considered on its own merits. After all, we have LOTS of impediments to majority rule: bicameral legislature; tri-partite structure of government; separation of powers; federalism; Bill of Rights; and others. It's not obvious that making the Senate unrepresentative is a useful contribution to that goal. Pretty clearly, Madison and Hamilton and Wilson thought it did the very opposite of that.

The Senate was created in the Constitution to represent the states and to protect each state's sovereign rights.

In a word, no. States were not sovereign under the Constitution, and states don't have "rights" in any case -- states have powers, people have rights.
 

Mark, I disagree.
"4. Particular to the United States, the U.S. Constitution was voluntarily formed as a compact by existing sovereign states with existing state constitutions. See FP 39. Despite the deceptive proposition that the States were created by Congress, the States existed prior to and independent of any Congress, as confirmed by the Treaty of Paris in 1783 (which, by the way, was not overturned by any subsequent legal action of the states). “The State governments, by their original constitutions, are invested with complete sovereignty.” Alexander Hamilton, FP 31. And, “Each State, in ratifying the constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act.” James Madison, FP 39. (The Tenth Amendment Center)
http://www.tenthamendmentcenter.com/2009/12/21/what-is-the-u-s-constitution/
 

Sorry Joe, but I've heard enough Republican blather to know.


"So, I'm supposed to take "equal representation" as implied here? Fine. It still is an overstatement."

Ummmm let me see... "Population of the American states and the Senate" is the title of Sandy's post, which contains a detailed explanation of how only 25% of the population has 58% of the votes in the US Senate.

So YES, but it isn't necessary to infer a thing which is explicitly stated.

As for the rest, spare me the blather and show us some concrete examples.
 

The several states were sovereign under the AoC, but it seems a bit like tilting at windmills to assert that they are in fact sovereign, in any meaningfully Weberian sense of the term 'sovereign', under the Supremacy Clause of Article VI abd especially after the 14th Amendment.
 

Rick, the two citations you give are not very persuasive. In Federalist 31 Hamilton was talking about the effect on states of their own constitutions, not the US constitution. Within each state, the state was naturally "sovereign" (in some meanings of the word -- see below).

In Federalist 39, Madison was talking about the ratification conventions, not about the nature of states thereafter.

In any case, under republican theory, sovereignty rests solely and exclusively in the people, not in any government, whether state or federal. ALL the Founders agreed on this.
 

"The several states were sovereign under the AoC, but it seems a bit like tilting at windmills to assert that they are in fact sovereign, in any meaningfully Weberian sense of the term 'sovereign', under the Supremacy Clause of Article VI abd especially after the 14th Amendment."

Heck, the FEDERAL government isn't sovereign, in any Weberian sense of the term. That's a concept of sovereignty that was rejected at the founding of this nation.

As Mark points out, it's the American people who are the sovereign, here, and to the extent that our government can claim sovereignty, it's shared between the federal and state governments. As the Tenth amendment makes clear, both the federal and state governments have their areas of jurisdiction. Neither has exclusive claim to sovereignty.
 

Bart:

It is unclear how Colorado only has a voice in the Senate. They have a House allotment, as I recall.

A tiny fraction of the overall allotment and less than NYC.


Forgive my ignorance,since it appears that you believe this is too obvious to require explanation, but why do the 5 million citizens of Colorado deserve as much or more representation in government as the 8 million citizens of New York City? I'm not trying to be snarky, I'm just trying to understand what your theory of representative government is.
 

You write: "I suggest that there is no more merit to this configuration of power than there is, say, to the present allocation of veto power in the Security Council of the United Nations or the assignment of independent representation in the General Assembly, prior to 1989, to Ukraine or Byelorussia. All of these can be readily explained as the result of "necessary" compromises at the time of the formation of the institutions in question. But, of course, the same is true of the 3/5 compromise re the "representation" of slaves."

I think this point is overstated. Suppose the the "time or formation" were NOW and the States were deciding whether to join/rejoin the union. Despite the ties of nationhood that probably bind us more than at the time of the first Constitution, I would not be surprised if the people of, say, Alaska, Montana, and the Dakotas declined to join/rejoin the union if the deal offered was that their representation in the elected branches would be as miniscule as strictly proportional representation would make it (heck, as it is, as the coverage of Palin last year disclosed to the rest of us, there is an Independence Party in Alaska already). The penalties for autarchy may not be enough as a general matter to keep low-population states from accepting a deal where they have very little representation (though, I suppose, Alaska [and, for all I know, other small states] are famously net gainers from federal expenditure, which might deter some). Still, we do not have slave states today. We do have small ones, and a "formation" today might plausibly have something like the Delaware plan, if not to the same degree.

Nor, timing aside, do I think there is NOTHING to be said for some extra rural representation other than the necessity of striking a deal. On those rare occasions when I venture out of the city, I am struck by the land and how little I know about how it is used. Knowledge of those facts and concern is disproportionately concentrated in the few people who would have a disproportionate voice in our politics with some thumb on the scale for rural representation.

That may not be an argument for as heavy a thumb as we have now, but I think it overstates matters to say that there is no reason for any over-representation of small population states or rural areas except for bygone historical happenstance.
 

If one really takes seriously the "let's overrepresent the poor farmers" argument, then it is obvious that Reynolds v. Sims was wrongly decided and we should support a return to the "good old days" when, say, my home county in North Carolina, with about 30,000 people, had the same number of senators in the North Carolina senate (one) as did Mecklenburg County, which then had roughly six times the population. For better or worse, though, I think it has become part of our "settled Constitution" that the the broado principle pronounced in Reynolds is indeed the rightful law of the land with regard to states. So one has to come up with an explanation as to why the national Senate should be different, and the only plausible explanation is that we're stuck with it as a result of a compromise that Madison (among others) detested.
 

Sorry Joe, but I've heard enough Republican blather to know.

To know what exactly? That I'm a Republican sympathizer? That when you disagree with me you have to name call instead of substantively argue the point?

Ummmm let me see... "Population of the American states and the Senate"

OTOH, this thread is not specific to that point and discusses the Senate as a whole. Likewise, your actual words talked about "the Senate" not a specific aspect of it. A specific germaneness rule has not been a constant in the blog.

So YES, but it isn't necessary to infer a thing which is explicitly stated.

Not by you.

As for the rest, spare me the blather and show us some concrete examples.

Baker v. Carr and other reapportionment cases list various examples. For instance, Justice Clark noted in Baker, "The controlling facts cannot be disputed. It appears from the record that 37% of the voters of Tennessee elect 20 of the 33 Senators, while 40% of the voters elect 63 of the 99 members of the House." He gave two examples:

Moore . . . . . . . . . . . . . . 2,340 1.23

Pickett . . . . . . . . . . . . . 2,565 .22


IOW, two counties had about the same population, but one had over five times the representation. Likewise, examples are give where urban areas are woefully underrepresented. The "rotten borough" system of Georgian England. Thus, the voters not trees quote above.

Another more recent case was NYC. They had an elective body where each borough was given an equal vote, though one borough has less than a 1/3 of the population of the most populous.

Long after slavery, rural voters in many states were greatly overrepresented. This is not special to slavery. It also was a problem in England where slavery did not exist on the home islands.

As to Mark Field's comment as to the House, I agree though I think states like SC did think that the Senate was useful to slave states too. VA on this front had somewhat different interests.

As with the idea the direct taxes measure mattered much, mistaken assumptions did influence the judgments made. Something, along with all the rest, to judge when determining if we should keep the institutions put in place in the current form, particularly when various things have changed. IOW, to wear the clothes of a child, to paraphrase someone from that era.

For those interested, I found "Dark Bargain: Slavery, Profits and the Struggle for the Constitution" by Lawrence Goldstone an interesting account. It also reminds that appeals to Founders should not be limited to a couple favorite sons.
 

Sandy:

Reynolds v. Sims was one of the more egregious examples of the Warren Court rewriting law to suit its own personal political objectives.

All the EPC states is that the law shall be applied equally. Neither the plain meaning of the text nor the original intent of the provision meant it to dictate the structure of republican government. Indeed, the idea that the EPC was intended to mandate "one man, one vote" is laughable given that the standard for our republican government at both the national and state levels had been the bicameral legislature with one house based upon population and the other on geography.

Even as policy, Warren's reasoning missed the point of a bicameral legislature. Warren opined: "Legislators represent people, not trees or acres." Senators do not represent "trees or acres." Rather they represent the unique interests of geographical areas so rural interests have a relatively equal footing with urban interests.

The problem with a central government covering rural and urban areas which is based completely upon proportional representation is that the urban areas can dictate the affairs of less populous rural areas in ways they would never consider applying to themselves.

For example, perhaps the urban states would like to turn the rural states into parks for city folks and deny the citizens of the rural areas the ability to live where they wish and develop their own resources as do the citizens more heavily populated urban states. The variations on this theme are endless.

The primary purpose of federalism decentralizing power to state and local governments was to protect the citizenry's sovereignty over their own affairs against the dictates of a far away capital. The geographically based Senate has a similar purpose.
 

Bart:

The problem with a central government covering rural and urban areas which is based completely upon proportional representation is that the urban areas can dictate the affairs of less populous rural areas in ways they would never consider applying to themselves.

Typos there. Should be:

"The problem with a central government covering rural and urban areas which is based completely upon disproportional representation is that the rural areas can dictate the affairs of more populous urban areas in ways they would never consider applying to themselves."

You know, Bart, I'm of the considered opinion that my vote should count as much as that of thousands of ignerrent and deluded fools like you. Obviously, gummint would function far better if it only did what I thought it should do. I'm still working on finding a plausible rational theory as to why this arrangement would be just and fair. Care to help me out?

Cheers,
 

To know what exactly??

That nonsense isn't substance, that digressions aren't arguments, and that you are arguing figments for the lack of anything honest to say... Republican SOP.

What I said was uncomplicated, and here's a simple question:

Do you have a current example or not? States, not cities nor anything else but states.
 

I agree that the Senate is badly malapportioned, that the malapportionment is a very bad thing, adn that the malapportionment is hard-wored into teh Constitution.

Is there an action item?
 

I'm not sure that Reynolds v. Sims is so strongly a part of the settled Constitution that a constitutional convention today (the question I thought your post originally addressed) would not accede to some (maybe less than now) extra representation for less populous states if those States made that a condition of joining/rejoining the union.

Reynolds didn't deal with an apportionment agreed to as a condition precedent for formation of a polity in any event. (Roman v. Sincock could have been a somewhat tougher case for my view than Reynolds, but my recollection is that the Court ducked the alleged facts that arguably made that case more similar to the federal Senate.)

After all, notwithstanding Reynolds, Congress and the Executive (who should, and often do, take their oaths to uphold the Constitution seriously) signed on to such a deal only a quarter century ago (our Covenant with the Northern Marianas) in circumstances that seem less plausible for such a bargain to have been a deal-breaker.

If we're positing a new constitution, Reynolds isn't settled any more, and smaller States are free to bargain for a non-Reynolds result for the national legislature under the new constitution just as Tinian and Rota were free to do so. It's not clear to me, at least, that the smaller States wouldn't get some accommodation of their interest in not having their votes overwhelmed by the more populous States. Granted, maybe you think the bargain would be a bad one today, but I don't think the case for relegating it to an accident of ancient history as irrelevant at the 3/5 compromise is fully made.

If one accepts the possibility that constitution-forming today might face bargaining of less populous States for some over-representation, I don't see why the concerns for representing "poor farmers" -- not the way I'd put it, but whatever -- don't add some weight to those States' (hpothetical) position even if the concern is not strong enough to make anyone want to revisit Reynolds.
 

Arne:

When has the Senate imposed a law limiting urban areas which did not apply to rural areas? The House would block any such legislation. Those are the checks and balances inherent in our bicameral legislature.
 

Bart:

When has the Senate imposed a law limiting urban areas which did not apply to rural areas?

The point is that they can.

Why do you fear representative democracy and equal representation? Why should rural voters (if such is indeed the case) be particularly favoured by the Constitution?

Cheers,
 

The problem being discussed was not caused by the constitution, but by the Seventeenth Amendment, as I stated in a previous post.

Had the amendment not been passed and ratified (there is some question on that), this discussion would be moot.

The Cosntitution never intended for the election of senators by the electorate, but by the legislatures of the several states. The House would serve the interests of the people; The senate would serve the interests of the states.

Rural areas could be represented by one senator appointed by the state legislature, and another senator appointed to represent the interests of the cities, or whatever the interest of the state was.

We now have unelected senators, replacements for Obama and Biden, but Ted Kennedy's replacement was by election. There was chaos involved in these senatorial replacements. Had the Seventeenth Amendment not been ratified, the state legislatures could meet and immediately select their respective senators.

Prior to 1913, the banking interests with help of the progressives pushed for the passing of the amendment along with the sixteenth amendment creating the horrors associated with income tax and the IRS.

Article I, Section. 8.
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;...

To get by limitations on the government to tax, the Sixteenth Amendment was passed: "The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration."

So now senators from the most populous states can vote to favor their urban areas in taxes, limit growth, or anything they damn well please, and the original uniformity is gone.

God help us if we ever do away with the electoral college. Then the few most populous cities, not states, on the coasts can muster over 51% of the popular vote and rule the rest of us as kings. Urban rule will reign supreme.

We have these inequities because we have allowed our senators to be elected and they, in loyalty to their parties rather than to their states, perverted the federalism that protects our states and its rural areas.
 

Bart asks: "When has the Senate imposed a law limiting urban areas which did not apply to rural areas? The House would block any such legislation. Those are the checks and balances inherent in our bicameral legislature"?

Fear of laws that apply only to urban or only to rural areas is not the only reason to be concerned with the appropriate balance between urban and rural representation. The difference in population density alone sets up fights over generally applicable laws. Should, for example, the postal service or the phone company charge its marginal cost for delivering service to each neighborhood or a uniform cost even though it requires a lot more per call or per letter to bring service to Harry Hermit than to my high rise apartment? Rural electrification a few generations ago? Universal broadband today? All instances where, from one point of view, the rest of society was asked to subsidize those who choose to live a rural lifestyle. I'm not arguing here whether such subsidization is wrong or right, and, in any event [in an underappreciated trend IMO}, many such subsidies for rural areas and the poor are disappearing as the subsidizing part of the population figures out work-arounds that let it escape the regulatory scheme necessary for such subsidies e.g., bypassing regulated POTS by going cellular or VOIP; cf. today's debate about the young avoiding the "risk pool," their way of avoiding subsidizing another segment of the population with different characteristics). Or to what extent is the lack of a serious tax on carbon usage a genuflection to the disproportionate hit such a tax would place on rural areas?

In the other direction, I'm sure that some rural folks could remind me of things I enjoy as a city dweller (mass transit and museum subsidies, perhaps) that they pay for but rarely if ever use.

There's nothing necessarily wrong with any such laws, even laws that by their terms apply only to cities or only to rural areas (I don't think we need to decide between having an open or closed range in my city, for example). Deciding, for example, whether postal rates will be based on marginal costs or be uniform without regard to cost or somewhere in between is unavoidable as long as we have a postal service (does the Constitution require that we have one, or merely permit it, btw?). Given the necessity for deciding such questions, getting the right balance between rural and urban representation could be important.
 

Rick:

We now have unelected senators, replacements for Obama and Biden, but Ted Kennedy's replacement was by election. There was chaos involved in these senatorial replacements. Had the Seventeenth Amendment not been ratified, the state legislatures could meet and immediately select their respective senators.

It's up to the states to decide how (and how fast) to fill vacant Senate seats. You don't like it, bitch about the states, not about the 17th Amendment.

Cheers,
 

Ciarand Denlane:

Given the necessity for deciding such questions, getting the right balance between rural and urban representation could be important.

Any systematic rural-urban divide is probably down in the noise comared with other electoral divides we have. Why we should be especially solicitous of this one specific (alleged) 'divide', when the Constitution makes no such explicit distinction, and where the amended Constitution calls for equal protection for all, is beyond me. I'd note that city-dwellers in mostly rural states, as well as rural dwellers in mostly urban states, are not even well-served by the supposed 'cure' for such ills we have with the current Senate apportionment.

Cheers,
 

Arne,
As I stated, the states have done a lousy job of replacing their senators.

The states were hoodwinked into ratifying the Seventeenth Amendment.

And thank you for your kind comments. I will bitch about whatever I wish to bitch about.
 

This comment has been removed by the author.
 

Rick:

As I stated, the states have done a lousy job of replacing their senators.

The states were hoodwinked into ratifying the Seventeenth Amendment.


As I stated, any such replacement problems or deficiencies can be laid on the door of the state legislatures or governors, and not on the 17th Amendment. And it's strange, your concern about the problem of selection of unelected Senators, when you simultaneously complain about the 17th Amendment which mandates that Senators be popularly elected.

And how do you know that the states were hoodwinked into ratifying the 17th Amendment? Some evidence, please. Would it even matter, if it were true (from a legal standpoint, that is)?

Cheers,
 

Charles ... the overstatement imho was:

"[the] primary purpose of [equal representation] both the Senate and the Electoral College" was to promote slavery. BTW, the EC part underlines that you weren't just dealing with SL's numbers, since the EC is a somewhat different animal in various ways.

It was not SL noting the current malapportionment of the Senate. My reply was in challenge to your claim in respect to the Senate's value to slavery. As Mark Field notes, this can be overblown.

I noted in part that state legislatures "had" greatly malapportioned legislatures long after slavery. I noted the Supreme Court cases that altered this situation -- I did not say NOW the states were as bad as the Senate. Again, the whole point was to deal with the slavery issue.

So, yes, my examples weren't current. I also noted my support of some change in the Senate, including noting equal representation given current realities is not compelled even if we accepted the institution as originally set up.

So, why the spleen? Rick, your opposition to the 17A does not show that those who passed it were "hoodwinked," particularly those states who already were starting to make sure their senators matched who the public at large wanted.
 

Joe,

What I said was: "The primary purpose of both the Senate and the Electoral College was to protect the institution of slavery." That the Senate and Electoral College were equally useful for protecting racial discrimination and segregation after the Civil War only underlines the point.

But I'll play... What exactly is "overstated" about it?
 

This comment has been removed by the author.
 

I quoted what you said, adding the bracketed information regarding equal representation in the Senate because you emphasized that.*

"Protect" and "promote" doesn't change much.

I already noted slavery is part of it, so the fact both institutions furthered racial discrimination is speaking to the choir.

The main point, however, is that unequal representation was never only present as a result of slavery. Race was but an addition to a broader problem. Thus, states that never had slavery support a Senate system not out of racism alone but self-interest.

Also, as Mark Field noted, there was some belief that the Senate would in fact help the on its way to freedom North. I also already pointed out reasons for the Senate, including the 2 senator rule, that was not slavery related. Thus, the 'overemphasis' argument was already covered.

The EC also was in place for various reasons. Ask the critics who point out about the fear of democracy (of poor whites). Also, many thought a national election would be impossible at the time. A federal plan reflecting the Congress made sense.

---

* "the issue is equal representation" -- Charles G.
 

Joe,

I said exactly what I meant, and your alleged paraphrase is a misrepresentation that does not say what I meant.

What I said about equal representation was by way of pointing out to you that a) it was in fact the topic being discussed, and b) that bicameralism per se was irrelevant to the discussion.

As for self-interest, that's just BS, the self-interest in question being precisely the institution of slavery. Boil down all the dishonest excuses, and BS rationalizations, and it's always about the same thing: people like YOU wanting an unfair advantage over others.
 

I quoted what you said, more than once. The only "paraphrase" was the use of "promote," which in the scheme of things (you protect, you promote) is serious why? I didn't use that word the first time I said "overstate" anyways.

The Senate as a whole is also being discussed in the comments. Bicameralism is relevant since a population/regional split in two bodies is often how that works.

In the second house, regions often have equal representation, even if they have much fewer people. I gave examples of this happening in non-slave areas then and later.

It was the existing rule (one vote per state) when the Constitution was put in place. NJ, not a "slave state" wanted the rule followed (the "NJ Plan"). VA, a slave state, wanted equal representation in both houses.

This shows that states supported the Senate model without being motivated by slavery alone, as is the case today in let's say Montana.

Looking post-Civil War, anti-black sentiment was clearly not the only reason to retain the current model. The influx of thinly populated Western states had a non-racial reason to support it. More so than some more populated Southern states actually (like Texas, Florida), especially now that blacks are counted in full.

Thinly populated slave states did favor equal votes, but VA underlines this was not a set "slave" position. In fact, the "CT" Compromise (the current model) showed that.

I don't know what "advantages" I want. I disagreed with the force of your argument on slavery's importance (as did Mark Field when he suggested they thought the Senate would help the NORTH) but agreed slavery was important. I also support change in the Senate, thinking it too undemocratic and arbitrary.

I may "blather" or whatever, I might be dead wrong, but what "advantages" do I expect?
 

It is interesting to read the various comments above and to learn that Platonism is alive and well in the readers of this blog. Well imaging a Platonic view of Baseball its unfair that the batter gets only three chances to strike out, but the pitcher gets four chances to walk a batter :)
There is no right or wrong here. A bunch of ex-colonies got together and decided to give up some sovereignty and they decided on a set of rules which they could all live with. Rules of the game just like balls and strikes.
And it was not by popular vote, but votes by states which ratified the agreement.
The Senate was put there to protect the sovereignty of the states.
Limitations of state sovereignty were put into place not by democratic means by by trial of arms.
A little discussed fact is that rules were made by Congress about bringing new states in. Certainly the big States could see that their influence in the Senate was being diluted by the admission of many small-population states. But they chose to do so.
 

I'm no philosopher, but the Plato reference eludes me.

"There is no right or wrong here."

Things did happen a certain way; saying it did not is "wrong." Likewise, when something was done that causes some bad (e.g., if a dog was kicked) it was in some fashion "wrong."

We can note the complexity and reject some overarching morality, but everything is simply not a shade of gray.

"And it was not by popular vote, but votes by states which ratified the agreement."

In respect to the Constitution, many states set up elections where the people at large chose delegates to ratifying conventions. The final vote, like presidential elections, were state by state.

But, popular vote mattered here. The same applied to some degree to choosing members of the continental congress and ratifying the Articles of Confederation.

"Limitations of state sovereignty were put into place not by democratic means by by trial of arms."

All governmental power tends in some fashion to require force to protect it. We fought a revolution to protect our sovereignty. But, the people at large agreed to the rules of government, in part by elections of those who decided upon constitutional measures.

The entry of new states equal to old ones is an important matter, underlining the complexity of the situation. Reaffirms my arguments.
 

Joe
You seem to feel that there is an ideal way to govern, and that is by the majority of a popular vote
I don't agree.
 

I agree. November 2008's vote got us where we are today.
 

"You seem to feel that there is an ideal way to govern, and that is by the majority of a popular vote."

I'm unsure where I said it was ideal across the board. I don't think, e.g., various rights should rise or fall on a simple majority.

As to Rick's final answer, I'm unsure if it was serious. We also surely didn't get to where we are today by one vote in November.
 

nice article.thanks dude.
http://www.ebooktub.com/
 

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