Re­vamp­ing the Se­nate is a fan­tasy

Richmond Times-Dispatch Weekend - - OP-ED - BY NOAH FELDMAN

As the con­fir­ma­tion of Jus­tice Brett Ka­vanaugh made its painful way through the Se­nate, a num­ber of lib­er­als be­gan to make an im­por­tant dis­cov­ery: The U.S. Se­nate is un­demo­cratic. Small states get the same quan­tity of se­na­tors as large states. It’s of­ten added that the ra­tio of pop­u­la­tion be­tween the largest and the small­est states was “only” 12 to 1 when the Con­sti­tu­tion was first adopted. Now it is 68 to 1. (Cal­i­for­nia to Wy­oming, in case you’re count­ing.)

Dis­sat­is­fac­tion with this as­pect of con­sti­tu­tional de­sign fits in with left­over frus­tra­tion over the Elec­toral Col­lege in 2016. To­gether these non-ma­jori­tar­ian flaws are breed­ing de­mands for change. Some­thing must be done, the crit­ics say, to avoid ren­der­ing the Supreme Court, pres­i­dency and per­haps the en­tire Con­sti­tu­tion il­le­git­i­mate.

There’s noth­ing in­cor­rect about the ob­jec­tions. The de­sign of the Se­nate is an­tidemo­cratic. In fact, it’s so un­demo­cratic that it would be un­con­sti­tu­tional if it were used by the states. Af­ter the Supreme Court adopted the one per­son one vote prin­ci­ple in the 1960s, states were ob­li­gated to ap­ply a pro­por­tional method for rep­re­sen­ta­tion of their own se­na­to­rial dis­tricts.

How­ever, the equal pro­tec­tion clause of the Con­sti­tu­tion doesn’t ap­ply to the Se­nate it­self. That’s be­cause the de­sign of the Se­nate is baked into the Con­sti­tu­tion — and it was baked in long be­fore the equal pro­tec­tion clause was even imag­ined.

But here’s the thing: The Con­sti­tu­tion was de­signed pre­cisely so that no one would be able to do any­thing about the un­demo­cratic Se­nate. Al­most uniquely among con­sti­tu­tional pro­vi­sions, and un­like the Elec­toral Col­lege, the as­sign­ment of two se­na­tors to ev­ery state re­gard­less of pop­u­la­tion is es­sen­tially un­a­mend­able. The Con­sti­tu­tion specif­i­cally says that states can only lose their Se­nate rep­re­sen­ta­tion with their con­sent. That’s never go­ing to hap­pen.

How can I say that with such con­fi­dence? Be­cause the fight over the un­demo­cratic Se­nate was al­ready the cen­tral is­sue in the con­sti­tu­tional con­ven­tion in the long hot sum­mer of 1787 in Philadel­phia. The non­rep­re­sen­ta­tive de­sign was a source of out­rage and pro­found frus­tra­tion to James Madi­son, the pri­mary ar­chi­tect of the Con­sti­tu­tion, and the other rep­re­sen­ta­tives of large states like New York, Penn­syl­va­nia, and Vir­ginia.

The small states made equal Se­nate rep­re­sen­ta­tion into the linch­pin of their will­ing­ness to join the Con­sti­tu­tion. They an­tic­i­pated stay­ing small. They an­tic­i­pated fu­ture ef­forts to strip them of their Se­nate rep­re­sen­ta­tion. And they made sure those would never suc­ceed.

To un­der­stand what hap­pened, you have to start with Madi­son’s ini­tial con­sti­tu­tional blue­print, which was in­tro­duced in the first few days of the con­ven­tion and dubbed (ap­pro­pri­ately enough) “the Vir­ginia plan.” Madi­son called for two houses in the leg­is­la­ture. He as­sumed that both would be al­lo­cated pro­por­tion­ately ac­cord­ing to the pop­u­la­tion of the states.

Al­most from the be­gin­ning, small-state del­e­gates hinted that they would not ac­cept pro­por­tional rep­re­sen­ta­tion in the Se­nate. Madi­son and the other large-state del­e­gates didn’t take the ob­jec­tions se­ri­ously. As Madi­son saw it, the small states were weak and would have no choice but to ac­cept what the large states im­posed on them. A New York del­e­gate, Gou­verneur Mor­ris, went so far as to say in the con­ven­tion that if the con­sti­tu­tional ne­go­ti­a­tions broke down there would be a civil war, and the large states would swal­low the small states by force.

Re­al­iz­ing that the large states weren’t will­ing to ac­cept their (weak) ar­gu­ments for equal Se­nate rep­re­sen­ta­tion, the small states played the only card they had: They staged a walk­out. Their po­si­tion was sim­ple. Un­less they got equal rep­re­sen­ta­tion in the Se­nate, they would en­sure the fail­ure of the con­ven­tion, and damn the con­se­quences.

Madi­son was be­side him­self. But there was noth­ing he could do, and he knew it. Among other prob­lems, the sys­tem for vot­ing in the con­ven­tion was by state, not by size. That was a throw­back to the Ar­ti­cles of Con­fed­er­a­tion, which treated the states as equal sov­er­eigns re­gard­less of size and gave them equal votes in the Congress. In ret­ro­spect, Madi­son should have re­al­ized that in a con­ven­tion where vot­ing wasn’t pro­por­tional, the small states were never go­ing to give up the one true ad­van­tage they had.

Faced with small-state in­tran­si­gence, Madi­son and the big states com­pro­mised. It was com­pro­mise or no Con­sti­tu­tion. They didn’t like the ar­range­ment that merged. But they had to live with it.

As a re­sult, the only way we could change the Se­nate to­day would be to trash the Con­sti­tu­tion and start from scratch. Even a new con­ven­tion might not solve the prob­lem. Af­ter all, how would we vote in such a con­ven­tion? You can be sure the small states would pro­pose vot­ing by state — like in 1787.

The take­away is that when­ever you think about chang­ing the Con­sti­tu­tion, you al­ways have to ask: Change it to what? What’s the re­al­is­tic al­ter­na­tive? Com­pro­mise is painful, and of­ten im­moral. And without it, there would be no Con­sti­tu­tion.

Al­most uniquely among con­sti­tu­tional pro­vi­sions, and un­like the Elec­toral Col­lege, the as­sign­ment of two se­na­tors to ev­ery state re­gard­less of pop­u­la­tion is es­sen­tially un­a­mend­able.

Noah Feldman is a Bloomberg Opin­ion colum­nist. He is a pro­fes­sor of law at Har­vard Univer­sity and was a clerk to U.S. Supreme Court Jus­tice David Souter. His books in­clude “The Three Lives of James Madi­son: Ge­nius, Par­ti­san, Pres­i­dent.” © 2018, Bloomberg News Dis­trib­uted by Tri­bune Con­tent Agency, LLC.

THE AS­SO­CI­ATED PRESS

The U.S. Capi­tol is seen from the Rus­sell Se­nate Of­fice Build­ing on Capi­tol Hill in Wash­ing­ton, D.C.

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