The Electoral College quickly became the left’s least favorite part of the American government after Donald Trump won the 2016 election. By 2017, gerrymandering in the House of Representatives was the cause celebre. In 2018, they’re still mad about both of these things—some people will always be mad about something—but the confirmation of two conservative judges to the Supreme Court has banked the fires of resentment even higher against another part of our constitutional structure: the U.S. Senate.
Even those vaunted neutral arbiters in the mainstream media have taken a side—shocking!—and come down against the venerable institution that has been a feature of American governance since 1789. NBC’s Ken Dilanian captured the mainstream media zeitgeist when he tweeted: “It may not happen in our lifetimes, but the idea that North Dakota and New York get the same representation in the Senate has to change. ‘Senators representing less than half the U.S. are about to confirm a nominee opposed by most Americans.’”
Ignoring the violation of media nonpartisanship, a custom more honored nowadays in the breach than in the observance, this cry of Senate abolition is flawed in several ways. For one, it continues the lefty tactic of blaming institutions for their failure to persuade voters to elect them. But more troubling is that it shows a lack of understanding of the American theory of government that is becoming more and more widespread. Anger is supplanting knowledge, and the consequences will not be good for our republic.
Did They Forget About New England?
The main complaint Democrats have about the Senate is that because small states have equal representation to big states, and Republicans dominate the small states, Democrats face a permanent minority status in one half of Congress. This follows a familiar pattern. In the House, they say, they are a permanent minority because of gerrymandering; in the presidency, because of the Electoral College; in the courts, because of their problems with the other two branches. Like a game between children, instead of “win” and “lose,” their two sides are always “win” and “they cheated.”
If you weren’t born yesterday, you might recall that as recently as 2011, the Democrats controlled the White House, 59 percent of the House, and a filibuster-proof 60 percent of the Senate. Under the same laws, the same Constitution, and with an almost identical electorate, the Democrats controlled the political branches of government with huge majorities. How did they lose it all? Because the people did not like what they did with that power once they had it. That’s not a broken system, it’s a democratic republic working as designed.
Moreover, the focus on small states as Republican strongholds does not survive even the gentlest scrutiny. The senators from the ten smallest states are nine Democrats, nine Republicans, and two independents who caucus with the Democrats. That’s an 11-9 split in Democrats’ favor.
How does that compare to the big states? The ten largest states are also represented in the Senate by 11 Democrats and 9 Republicans. There is literally no difference in the partisan balance between the smallest states and the largest. So what is the complaint? That Republicans do too well among people of medium-sized states? That’s an unimpressive rallying cry, to say the least.
The numbers show the truth: There is no structural advantage for Republicans in small states. As much as Democrats love to hate the sparsely populated regions of what they call “flyover country,” any advantage the Republicans have there is matched by Democratic strength in New England, Delaware, and Hawaii. Yes, the coasts have small states, too! (These are also the same people who call for D.C. statehood, even though that city would become the third-smallest state in the union.)
A Lasting Compromise
A bigger problem with calls for dissolving the Senate is that they are ignorant about our Constitution. The Constitution can be amended, and it has been 27 times, but one thing cannot be changed: equal representation in the Senate. As Article V states, “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” You may hate the idea that there are two senators from North Dakota, but to get rid of them you’ll not only have to amend the Constitution but you’ll also have to get North Dakota to agree to it. That’s never going to happen.
It also shows a lack of understanding of the compromises that brought the Constitution into being. Even in the 1780s, there was tension between big states and small. Big states’ delegations to the 1787 Constitutional Convention wanted a legislature apportioned by population. Small states wanted one where each state was represented equally, as they had been under the Articles of Confederation. The Connecticut Compromise was the result: a Senate of equal representation and a House where big states would have a greater say.
That it worked is obvious from the pattern of ratification. The smallest state at the time, Delaware, was the first to ratify. The second was Pennsylvania, the second-largest state. There were many compromises that led to the final document written in Philadelphia, but it is not an exaggeration to say that without the Connecticut Compromise, the Constitution would never have been approved. Changing that now would dishonor the agreements that created our present form of government.
The disparity between the large and small states is not new, nor is it greater now than ever, as some have said. In 1790, the largest state, Virginia, had 12.6 times the population of the smallest, Delaware. Today, California has 68.6 times the population of the smallest state, Wyoming. But in 1900, the disparity was still larger: New York’s population was 171.7 times that of Nevada. Yet the republic endured, and the Senate did its job. Compromises are becoming rarer in our politics; this is an example of a good one that should not be altered.
Repeal the 17th Amendment
The Senate was always intended to represent the states, not the people and, as such, its equal membership across the states makes sense. It is not that the people are represented unequally in the Senate, it is that they are not supposed to be represented in that way.
As James Madison wrote in Federalist 62, “the equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty.” The Senate he helped create did both, representing the states as states, while reflecting and preserving the balance of federalism struck at the constitutional convention.
The Senate did exactly what it was designed to do until the populist progressives last altered its makeup in 1913 with the passage of the 17th Amendment. There were some problems with the old system, in which state legislatures elected U.S. senators, and increasing deadlocks around the turn of the 20th century meant that seats went unfilled more frequently. But rather than fixing that system, progressives abolished it and made the Senate a mal-apportioned version of the House by making its members elected by the people directly.
This, perhaps, is the root of the problem. Changing to popular election makes the Senate look no different from one of the state senates, where voters elect state senators from districts that, while larger than state house districts, are nonetheless equal in size. The change in electoral method has made us forget the Senate’s purpose of representing the states as political entities, not merely as oversized districts.
The results have been clear. Since 1913, power has flowed steadily away from state capitals and toward Washington, D.C. The Senate, in this respect, has worked in Democrats’ favor for 100 years as the former bulwark of federalism is now subject to the same centralizing trends as the House and the presidency. In a nation that is increasingly diverse, the trend should be the opposite, with states gaining more power from the central government so that the people need not be governed by one-size-fits-all legislation. The only change the Senate needs is returning it to its intended purpose as the representative of the states.
A Senate in which states are represented equally is not broken. If reporters and pundits have deficiencies in their civics education, that is not the fault of the Senate, and neither is it the Senate’s fault that Democrats have not held a majority since January 2015. Four years’ absence from power is not a structural defect; it is a flaw in the quality of their Senate candidates. Instead of tearing down institutions, Democrats should gain power the old-fashioned way: by nominating candidates who can win elections.
Published at Thu, 11 Oct 2018 11:10:47 +0000