Friday, June 07, 2019
Reply to Critics-- Part Two: Illuminating tensions in Steven Calabresi's arguments
For the symposium on Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019).
(1) The Founders express intent was to design a republic, not a democracy. The purpose was to limit the power of the national government to abridge our liberties. The resulting design divided the elected national government into three parts balanced between localities (House), the states (Senate) and a combination of the two (POTUS), each of which could check the others.
As Steven correctly observed, these "veto points" generally require an effective supermajority "consensus" to exercise national power, in stark contrast to the effective plurality rule we often see in more "democratic" parliamentary systems. One way of looking at this is, If democracy is majority rule, then the supermajority rule required under our constitutional system arguably provides a super democracy.
Sandy's real complaint is the Constitution's "veto points" generally work as designed and prevent transient progressive elected majorities and pluralities from enacting all of their preferred policies.
(2) The "weak global federal democracy of the G-20 constitutional democracies" both Steven and Sandy propose is the same kind of confederacy established by the "imbecilic system of the Articles of Confederation," the CSA and the EU. Confederacies are fatally flawed systems made worse in this case by joining together with nations which have even less respect for freedom than does our political establishment.
I saw an op-ed recently that referenced a proposal to not only have senators for D.C. but for territories (Puerto Rico and all the rest) and ... this is a novel thought .. Native American tribes. There are various numbers to use when counting Native Americans but even the smaller ones would match various states. OTOH, we are talking about a large number of tribes though a few in particular have sizable populations.
Laurence Tribe offered the idea of at large senators. This would be an interesting way to get around the hard to avoid requirement of an equal number of senators for each state. A simple amendment, without universal agreement, can allow that sort of thing. Of course, the Articles of Confederation was very hard to amend and it was deemed (after less than a decade) appropriate to replace it with an easier mechanism of amendment. We can also amend out the equal suffrage requirement and start over.
The Madison approach of apportionment by population in the Senate, which is deemed workable in individual states, might one day be deemed appropriate nation-wide. I think some sort of compromise might be okay there with strict equality perhaps not necessary. But, the current population contrasts are off.
Joe, equal representation of states in the Senate is the one thing that Article V demands unanimous consent of the states for. No state may be deprived of it without it's own consent, even if every other state is in favor.
It would actually be easier to abolish the Senate, that would only require the normal super-majority.
Brett reminding me of something I already referenced is appreciated.
The Articles of Confederation had this provisions:
"nor shall any alteration at any time hereafter be made in any of them [articles]; unless such alteration be agreed to in a congress of the united states, and be afterwards confirmed by the legislatures of every state."
In less than a decade, a government was in operation under a new Constitution, before every state agreed to it. But, that isn't necessary here.
There is the at large option. Each state would still have equal suffrage but there would be at large senators. I guess one can argue this is against the spirit but seems to be allowed to the text.
Another option is to amend the Constitution and remove that provision. A unanimous consent isn't required by the text to merely remove it. Once no longer there, a new amendment can be passed. A similar two-step approach was used in the United Kingdom to weaken the power of the House of Lords (a rule was in place protecting it but it was removed and then the House of Commons had more power).
I'm not actually sure if there is less chance of either happening than simply keeping the current Constitution and abolishing the Senate. Another approach would be to basically water down the powers of the Senate.
Maybe he's correct about the 6/6 division, but he counted Vermont twice.
In any case, it's pretty easy to figure out the effect of smaller states' equal representation on the Senate's composition; you compare the popular vote in all Senate races to the Senate's composition. I did the math a couple weeks ago and as I recall, Democrats received 55% of the votes in the races, from 2014 to 2018, that determine the Senate's current composition. Yet they have much less than 55% of the seats.
Of course, you have to remember that only a third of the Senate is up for reelection in any given election year, so it really isn't suited for such calculations.
If you calculate the number of people represented by each Senator, counting 50% of a state's population for each, you get a 52-48 breakdown in favor of the Democrats.Post a Comment
That's more meaningful than Calabresi's silly 6-6 point.