J. L. BELL is a Massachusetts writer who specializes in (among other things) the start of the American Revolution in and around Boston. He is particularly interested in the experiences of children in 1765-75. He has published scholarly papers and popular articles for both children and adults. He was consultant for an episode of History Detectives, and contributed to a display at Minute Man National Historic Park.

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Friday, January 08, 2021

“Equal Suffrage in the Senate”

When people discuss the undemocratic nature of the Electoral College, the conversation often leads on to the U.S. Senate.

After all, one way the Electoral College distorts our votes derives from how each state has two U.S. Senators and the electors were originally a shadow version of the entire Congress, both House and Senate. The result is disproportionately large representation in the Electoral College for voters who live in small-population states.

Of course, small-population states have even more disproportionate power in the Senate, which has approval power over major Presidential appointments, judges, and (with a two-thirds supermajority) treaties.

Equal representation for each state in the Senate was part of the compromise at the Constitutional Convention of 1787 that convinced small states to give up their even more disproportionate power under the Articles of Confederation. It was a product of that historic moment.

Historians can point out that in 1790 the most populous state, Virginia, contained 748,000 people, or 631,000 as calculated by counting enslaved people as only three-fifths of a person, while Delaware had 59,000 or 55,000 people. The largest state was thus only about twelve times bigger than the smallest. Despite small states having disproportionate sway, Virginia, home of four of the first five Presidents, still managed to exercise a lot of political power.

In contrast, today the most populous state, California, is more than 67 times larger than the least populous, Wyoming. Despite being only 1.5% the size of California, Wyoming has 5.5% of the larger state’s weight in the Electoral College and 100% of its weight in the Senate.

Our incoming Senate is split down the middle in terms of political party, with fifty Republicans on one side and fifty Democrats and independents caucusing on the other. Yet the Democratic side represents 41 million more of us people—equivalent to the entire population of Argentina. 

I think there’s an argument to be made that we citizens are served by having some of our national representation determined by state boundaries. Because of differing laws, each state’s population does end up being an interest group in itself. But as to whether the Dakotas (combined population 1.7 million) should have twice the Senate power as Illinois (population 12.6 million), that’s hard to justify except on the basis of inertia.

Since the Constitution requires three-fourths of the states to approve amendments, it would be hard to change the Electoral College by re-amending Amendment 12. (That’s why the National Popular Vote Compact appears to be the most promising way to reform the system, asking state legislatures to make the decision and stick to it.)

Changing the makeup of the Senate, however, would be even harder—well nigh impossible. That’s because of a usually overlooked clause at the end of Article V of the Constitution:
…no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
Changing the design of the U.S. Senate would thus not only require a supermajority of states, as with an amendment, but complete unanimity. This is the only surviving exception to the amendment process. (The other was forbidding any attempt to limit the slave trade until 1807.)

It would probably be easier for the very large states to split into smaller ones, each having two Senate seats.

(The picture above, courtesy of Wired, is a British map of North America from 1741. Europeans still thought California was an island.)

4 comments:

Contrarian View said...

It is worth remembering that the federal government was created by the states. The Framers, particularly Madison, knew that for checks and balances to work, the states themselves had to have direct representation in Congress; hence the election of senators by their state legislatures. This was meant to be a check against the federal government overreaching its permitted powers to subordinate the states. The 17th Amendment, designed by the "Progressives," put an end to that essential dynamic of the Constitution. And it has ended up exactly as Madison feared - the federal government has reduced the states to mere administrative units on nearly all significant aspects of governing.

Whether it is "fair" for two senators to represent Wyoming and two to represent California is a question only for an advocate of pure democracy; which, as Madison made clear several times, is merely formalized mob rule.

If the larger states were to split up, the result would be an increase in Republican (or whatever conservative party succeeds it) representation in both House and Senate, as the newly created states would be the "Red" portions of California and New York, each getting two senators and whose representatives would not be such victims of gerrymandering as they are today.

J. L. Bell said...

It is worth remembering that the Constitution begins "We the People…” The Framers even rejected the idea of following that with the names of all the states. The scheme then had to be ratified by conventions in every state, most of them elected by the people specifically for that task. Of course the people worked through the states—what other mechanism did they have? But the Framers were quite clear that a new national government formed by the state governments without the people's approval lacked legitimacy.

Now let's move on to the claim in sentences 2 and 3. James Madison entered the Constitutional Convention arguing that the federal government should have veto power over state laws, so he actually favored what this commenter would call "the federal government overreaching its permitted powers to subordinate the states." At the convention the Framers had an extended disagreement about whether the national legislature should represent the people or the states. The Congress we have is the result of a famous compromise, as the posting above notes. Therefore the claim that "The Framers" as a whole wanted state legislatures represented in Congress is at best a simplification.

Then we come to this commenter's real hobby horse: the 17th Amendment. The change that amendment created was first proposed in the 1830s, well before the Progressive Era. It did indeed gain momentum in that era, when many states moved to de facto popular election of senators. Eventually, of course, three-fourths of the state legislatures approved the amendment, so people who dislike the 17th are actually trying to undercut those state legislatures' decisions.

The second paragraph proves that the commenter hasn't read this pair of postings or, for that matter, Madison. And that the commenter is also basically opposed to democracy. Madison used "pure democracy" to mean direct democracy, as in referendums. By definition, electing U.S. senators through popular vote is a form of representative democracy; electing them through a state legislature is a two-layer form of representative democracy.

Madison did not say that pure or direct democracy was mob rule, and it doesn't help an argument to force words into his mouth. Like most elite politicians of his generation, he did see direct democracy as possibly falling into anarchy or demagoguery, but he also saw the dangers of aristocracy and corruption. That's why those men wanted elements of democracy in the Constitution. Later generations definitely wanted more, and most Americans today appreciate that.

It’s curious that the comment discusses splitting up only "California and New York" even though the posting discussed California and Texas. Even Florida is bigger than New York now. It looks like the commenter is working with an outdated mental picture of the electorate and/or wanted to complain about states with predominantly Democratic governments by laying the false claim that those have more "gerrymandering" than others. (People with honest interest in politics should take a look at the Congressional districts around Houston.)

Waving aside such transparent partisanship then, we should accept that splitting up large states like California, Texas, Florida, and New York will produce some smaller states that lean more to the left than the original and some that lean more to the right. In total those states would have more U.S. Senators and thus more electors in the Electoral College, meaning more representation for the political minorities from each original state. As a small-d democrat, I think that's a Good Thing. People who don't like democracy, or don't like it unless it swings their way, might well disagree.

J. L. Bell said...

I misremembered where I discussed California and Texas. It was in a comment on the preceding day’s post. Nonetheless, the fact remains that discussing only “California and New York” as large states and omitting Texas and Florida, which are larger than New York, tips us off to this commenter’s biases.

J. L. Bell said...

Someone is trying to spam this conversation with long comments on current California political issues.

Comments about California-specific issues are relevant to Boston 1775 only if they involve the Spanish Empire or Native nations of the eighteenth century.

Comments about political philosophy and the U.S. Constitution can also be very relevant, as those above show. But please don’t try to slip in advocacy about modern issues under the guise of discussing eighteenth-century ideas.