Revised Draft of ‘Fixing the Senate’

We’ve posted a revised draft of Fixing the Senate: A User’s Guide to SSRN. Comments are welcomed.

Here, again, is the abstract:

The Senate is the most undemocratic part of the U.S. Constitution – worse even than the Electoral College, although the two are related, and some versions of fixing the Senate would ameliorate the Electoral College also. Unfortunately, each state’s “equal Suffrage” in the Senate is protected by a unique constitutional entrenchment clause. The Entrenchment Clause creates a genuine bar to reform, but that bar is not insurmountable. We argue first that the constitutional proscription on abolishing the Senate has been overstated, but that in any case there are constitutional reform options that range from abolishing the Senate to various degrees of disempowering it. We then argue that there are several promising reforms that could move in the direction of democratizing the Senate without constitutional amendment. In particular: admitting new states, breaking up the largest states, and a new Constitutional Convention. This paper canvasses benefits, costs, effectiveness, and likely feasibility of each of these methods by which one might seek to make the Senate more representative despite the entrenchment clause. Several of the proposals create an opportunity for Supreme Court review and perhaps obstruction, raising questions about the relationship between Senate reform and Supreme Court reform.

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14 Responses to Revised Draft of ‘Fixing the Senate’

  1. Eric says:

    Isn’t the entire point of the Senate a mini check and balance on the legislative power to prevent tyranny of the majority?

  2. In my view, the job of preventing the tyranny of the majority is primarily shouldered by the bill of rights.

    As explained in detail in the paper, to whatever extent the Senate may have been designed to prevent majority rule in the sense of domination by big states, the justifications for using it that way are much much weaker today. Plus, representational imbalance and blocking pathologies of the Senate are so much worse today than ever before, that it really cannot now be justified on those grounds.

    • Eric says:

      Perhaps we should just have one world government.

      That will fix everything (other than having somewhere to go if you don’t like it).

    • Vic says:

      As a serious comment, if you really think the purpose of the Senate was to prevent majority rule, you really have no understanding at all on the matter, and no appreciation at all of the import of the Federalist/Anti-Federalist question. I don’t care that you found some source (you likely did) to say that, it’s simply a misunderstanding of what was going on in the 18th century. You can’t look at history solely through 21st century eyes and expect it ends there. I’d say more, but you only want comments that agree with you, so…

      As to your laughable comment about the Bill of Rights, I have no idea what you are thinking there.

      • The issue for democracy is not the existence of a Senate but how its members are chosen and to what extent representation is population based. The Connecticut Compromise accepted undemocratic weighing because small states feared domination by big ones and would not agree to the new constitution without protection. Ratios are much worse today, with dire consequences. No decent democratic theory can except a body so malapportioned as today’s Senate.

        That the federalists feared the ‘passions’ of the people is not controversial. A theme of the federalist papers is how to have a republic with the right amount, but not too much, popular control. Modern ideas are different; for example we no longer tolerate a property requirement to vote as some states still had at the time the constitution was adopted.

        Enough already. Read. The. Paper. Otherwise I’m now done responding to this nonsense, even when it contains falsehoods. (You might try toning down the abuse too.)

        • Vic says:

          But see your premise is that, ideally, the Senate must be popularly apportioned. Your paper approaches the ideas from that point of view. You presume a “proper” situation, then address ways to get to that presumed point.

          My point is that all of this is incorrect since it presumes that the 17th Amendment was both correct and aimed at some semblance of popular representation. That it was aimed at fixing the problem of making the Senate more Democratic. It was NOT. Any more that the original Senate scheme was. THAT is the problem with your argument, you are assuming that the problem is unintentional, that the drafters of the 17th missed something, and it needs to be addressed by a correction more toward what you presume was intended, but not achieved. The 17th threw the baby out with the bath water.

          It simply makes no sense at all to have a popular representative House AND Senate. They become redundant to each other (barring some individually assigned Constitutional duties). The reason you are bothered by the modern Senate is simply because it DOESN’T make any real Constitutional sense any more. You should be bothered by it. But the better solution, and the only one which retains the very point of having a Senate in the first place, IMO, is not to make the problem worse, by making it effectively a second House, but by putting it back in the position it should have been in Constitutionally.

          You are correct in saying that “a” reason for the appointed Senate was to keep big stars from bullying smaller ones, but it was also, and IMO, more importantly, to make sure that states were part of the formation of the Federal system. That states, as a governmental entity, had a say in it. They really don’t anymore because 17th took that away, and the non-functioning, corrupt Congress that we see today is there precisely because there is no third party putting a check on things and forcing movement. Having one house made up of “The People” and the other house of “The States” makes it work very differently, and tends to work against the corrupt gridlock that is all we see today. (Not that the previous version was free of problems and corruption, I’m just saying that THAT problem could have been addressed without creating an entirely new entity, wearing the ski suit of the old one.)

          You may agree or disagree with that, but my point here is just that if you wish to address the idea of improving the Senate, then it should be to improve the function of Congress as a whole. Otherwise, so what? That in mind, you should also consider that the “solution” to the problem you want to address might be not putting more lipstick on that same old pig.

          And I did read your paper. You admit right in the first section that the Senate setup was unfair right from the start. (Where you compare Virginia an RI) yet instead of considering why it was set up that way anyway, with little real objection, as if it was a “wrong” hiding in plain sight, another way of approaching the question would be to think about why it was setup anyway. The Founders weren’t stupid, they saw the same problems that you do, but they did it anyway. Why? You should be wondering that, and you don’t seem to. Maybe because you are trying to fit a preconceived narrative, and citing/using source material that is modern and also assumes that same narrative as correct. The Framers did not look at every situation the same way that Klarman did in 2016, but your position requires the presumption that they would have seen things his way, if only they’d had the benefit of his hindsight now. Your bias toward modern source material also tends to emphasize modern solutions as having a qualitative advantage. That may or may not be true, but you don’t address that anyway.

          In the end, for all of its scholarly vestments, the point of your paper, and the idea that really matters to you is addressed openly in I.a.3.b. You think that the “problem” is causing Republicans to be elected more than you’d like, and that “fixing” the Senate “problem” would allow more Democrats to be elected. That’s your real point, not an altruistic one-person-one-vote schema. Let’s not pretend on that. Saying that not everyone agrees that Republican have an advantage does change that you WANT a clear Democrat advantage. I don’t have a problem with that, apart from the pretense, and it is no more than that, that a fair and honest look at the matter would conclude that we need to have a more representative Senate. Your paper looks more like biased advocacy, dressed up as scholarly analysis, that, in your opinion, after your honest assessment, should be implemented to save our Senate from itself.

          Maybe you intended that, maybe not. Maybe you care how it so obviously looks, maybe you don’t. Maybe you are perfectly fine with ANY setup that assures that only Democrats can win elections, maybe not. I don’t know. Doesn’t really matter to me. But you did ask for comments, while being unwelcoming to those that came…

        • Vic says:

          Oh, and your section d. Threat To Democracy was just bizarre. Impeachment votes are by Senator, not by those represented by each Senator. The People, through their representatives in the Senate, do not have a say in impeachment convictions or acquittals. You know this. The reason the votes were basically along hard party lines was because of factors having nothing at all to do with representative democracy, or lack of it, but political gridlock, which is a function of the LACK of popular interest in what Congress is doing, not a fault of representational imbalances. Yes, having more Dems in the Senate might have resulted in a (unconstitutional) conviction, but it would not have fixed any flaw, only fixed your desire for appearances.

          I think, fundamentally, that’s what you don’t understand: most people don’t care about politics. Most people NEVER talk about politics. Not from politeness, but because they don’t care, never will, and know nothing about it. Most people, and by that I mean the vast majority, just care about living their lives without the Government imposing itself on them too much. Live and let live.

          Giving more representative say to these people accomplishes, as a democratic improvement, nothing. They don’t care now, and won’t then. They won’t even notice the change.

          Your paper makes very clear that you don’t care about this anyway. All you really want is more Dems elected, and your method achieves this, while appearing honest. It’s just a justification, no more.

          Improving Government by adding bias that you agree with, is not an improvement, it’s just getting your way. Pretending, using lots of footnotes, that you don’t just want your way, is just disingenuous. Sorry if that makes you mad.

  3. Vic says:

    The whole problem is a creation of the 17th Amendment. The Senate was never intended to be a representative of “The People,” but the States. So much of what modern government does, and how it works day-to-day, no longer makes any logical sense post 17th. But then a lot of what modern government CAN now do, post-17th-power-grab, depends on the 17th to be retained. It’s no accident that this happened during the Progressive era when certain very “smart” people decided that they knew what was best for everyone and did everything possible, including instituting eugenics, limiting immigration of “undesirables,” and racist unions, to keep the real reigns of power in their own hands, knowing that, like we see today, “The People” largely don’t care about the day-to-day operations of government, pay no attention, and have no real desire to act as an informed check on it – thus leaving real power in the hands of the self-chosen class of Cool Kids(TM). Whatever the States could be accused of, it was not hands off, like it is now.

    Repeal the 17th, THEN start looking to fix a few things. Anything else is putting the cart before the horse.

    • As the paper says — did you read it? — we see the problem as a lack of democracy. (And even if you, for some weird reason, think the ‘Connecticut compromise’ embodies some value that must be preserved, the population ratios are now totally out of proportion.) You don’t solve that problem by having less democracy. And also, how you pick the Senators won’t change the problem that people in Wyoming have much more representation than those in California — while millions in DC, PR and elsewhere have zero.

      • Vic says:

        I don’t think you follow the point at all. The Senate was never intend to encompass any sort of democracy, representative or otherwise. It was a place for the States, as States, to have a say. In that, the “problem” of representation doesn’t exist, as no popular Democracy exists by design. The 17th imposed a template never intended or proper on it he Senate. It is notable that only one person among the founders debating all this felt that the Senate should be representative of the people. (Maybe the 17th Amendment is just a tax though…)

        Representation is for the House, and should ONLY be for the House. Here, I would agree, there are issues with State populations getting disparate representation. The solution to this problem (more Representatives) is completely unappealing to those in power, as it dilutes their own power. People in places like California can whine about it all they want, but do you really think Pelosi wants her power divided up and now shared among 5 or 6 (or whatever) NEW representatives in her District? You are a smart guy, but I think you really misunderstand the base nature of politics sometimes. Maybe the fact that Law Schools tend not to be the bastions of craven Type A personalities (unlike D.C.) has given you a slanted view of how the world works.

        (I also don’t think that a new representative carve up of the U.S. would give you what you want. I suspect that real representation would be a lot more red than blue. I think that’s one of the reasons it doesn’t happen. Red or blue, it would be very one sided. The ongoing and seemingly flip-floppy charade of Us vs Them is a necessary part of the political theater making these people in D.C. millionaires. To disrupt that gravy train by settling the matter is not in anybody’s interest. Do you somehow fail to notice that whenever one party has full power, they STILL manage to fail to do what they claim they want? Is Obamacare still in place? Guantanamo?)

        Again, I reference my First Rule of Politics, which you continue to ignore at your own peril and perpetual confusion.

        • No, you miss mine: I don’t care about the original antidemocratic intent for the Senate, for the same reason I don’t care about original intent regarding votes for women, blacks, other non-whites. I am for equal democratic representation for all, or at least the closest approximation of it that our federal systm will allow.

          • Vic says:

            Ahhhh. The classic motte and bailey defensive argument. You’d think a law professor would be above such a tactic…no you wouldn’t!

            You are also being hypocritical in that you want one part of the constitution to stand as written, and another part to fall. According to your own choosing. But then I already knew you were a hypocrite, so that’s OK.

            I guess comments are not so welcome either…

  4. Eric says:

    Discourse pumps the humours of life throughout the veins of democracy.

    In order to form a more perfect union, society has elected a governing body of representatives to champion the collective good of the people. This collective good in turn protects the individual from the deprivation of life, liberty and the pursuit of happiness. And notwithstanding the infinitely dynamic expression of these axiomatic rights, the inherent nature of representation as a many to one function necessarily rounds away the nuance of human subjectivity to achieve a balance of thought.

    This idea of balance transcends the philosophy espoused by the Greeks of old.

    Just like the overall mental and physical health of an individual could be said to depend on the equilibrium of the four humours, the health of a society depends on the equilibrium of the several states of thought inherent within the body politic. In fact, it could be said that the marketplace of ideas necessarily requires the disclosure of personal and subjective goals in order to define the full personality of society as it represents the mood of the people.

    Democracy therefore balances this diversity of thought with honestly robust discourse.

    With this framework of governance and human nature in mind, it becomes self-evident that debate within the legislature properly reflects the multitude of individuality represented by the legislators. The final law itself represents a singular idea that theoretically weighs the equities of the issues and achieves substantial justice to the population as a whole. Obstructionism, regardless of the representation ratio, signifies that a substantial enough proportion of the population objects to a particular policy.

    Debate without an inherent limiting principle, however, becomes distorted over time.

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