As the second year of the Obama Presidency approached the one-quarter turn, there was much talk in the air about the rules and customs of the United States Senate. Should the filibuster be reformed, or even abolished? What is the right and proper place of the legislative technique called “reconciliation”? Many words have been written to further, or to confuse, these discussions, but this essay wishes to avoid redundancy and boredom. Rather, they express the author's astonishment that there has been less attention paid to some shocking news about the United States Senate, news which is far more profoundly corrosive of our ability to remain a self-governing nation and a beacon of both liberty and justice for all.
This shocking news has nothing (directly) to do with atmospheric observations one hears from time to time, such as that the Senate is the “greatest deliberative body in the world” or that it is a farcical cauldron of vanity and ego whose members are orotund show-boaters flush with the confidence that each and every one of them believes, credibly, that he or she should be President of the United States.
No, it has to do with the fundamentally unrepresentative and anti-democratic nature of the institution, which appalling reality is merely masked during times when the Senate minority is restrained in its abuse of the filibuster. Anyone who has studied our political system must concede that, due to the mob-fearing views of our Founders and the compromises that were made during the forging of the Constitution, we have, in the Senate, an institution barely more in accord with our republican principles of representative democracy than would be the British House of Lords, the Canadian Senate or the Roman Curia.
Nor can this reality be blamed on the costs of getting elected to the Senate, which tends to make it a “Millionaires' Club”. The anti-democratic shame of the Senate has its ineluctably stark roots in the very nature of that “august body”. You've probably seen the math: since California and Wyoming have equal representation in the Senate, the vote of each Wyoming citizen weighs, in Senatorial terms, over 68 ½ times what the Californian voter's does, per the 2000 census figures. Sixty-eight and a half times! Is the civic literacy and wisdom of the average Wyomingite really nearly six dozen times superior to that of the Californian? Lest any of our more conservative fellows (or mere California-bashers) call this a biased assessment, let's compare instead Texas and Vermont. Again, using the 2000 Census, we find that the Vermont voter is, Senatorially speaking, treated as 34.3 times more worthy of representation than the Texan voter. However one may feel about any of these states, the principle is the same.
In the House of Representatives, we expect our votes to have essentially equal weight, and we rightly protest when it appears that state legislatures have gerrymandered their congressional districts to give undeservedly high levels of influence to one party over another. But we accept the titanic injustice of an “upper house” in which one set of citizens can cast their votes for Senator knowing they are vastly more or less impactful than those of another state's voters, in some cases a neighboring one. Think of Lake Tahoe: the votes, in Senatorial terms, of people who live just across the border from one another are, per the 2000 census, differently valued by a factor of nearly seventeen times!
The cynical view of life tends to assume that long-established wrongs are not worth fretting about, no less struggling against. “Why worry about this anti-democratic Senate?”, we might be told, “We're still a rich and great nation, are we not?”. To this I would reply, yes, we are, but only to the extent that we are always vigilantly pressing ahead to form “a more perfect union”. Continuous improvement is not just for golden-era Japanese corporations. Without the spirit of perpetual reform and continuous improvement, we surely slide toward the obverse of Jefferson's motto, “eternal vigilance is the price of liberty”. Complacency and cynicism, surely, are the twin portals leading to the waterfall of autocracy.
Nor may we take seriously the blandishments of the don't-rock-the-boat crowd who say, “you can't change something so long established. Balderdash! Slavery was an eternal institution .... until it wasn't. The disenfranchisement of women and persons of color in our young republic was the way of things....until it wasn't. These undemocratic “representatives” we call Senators were always elected by state legislatures and not by the direct vote of the people ..... until we changed the system. Can we not see our way to a future in which the patent wrong of an anti-democratic Senate is righted? I would say, invoking a certain Hawaii native, “Yes, we can!”.
There are reasons, beyond such broad philosophical concerns, to take this problem seriously: actual legal reasons. I must add the usual caveat that “I am not a lawyer”. Nor am I a licensed scholar of constitutional law. But I am someone who can add, divide and reason; someone who is appalled by the long-established gross injustice that is our Senate (and, by extension, if to a lesser extent, the Electoral College which – usually – selects our Presidents). And I must therefore lay out two arguments that undermine the legitimacy of the United States Senate as an institution worthy of our representative democratic republic.
Although it may be fashionable in some circles to denigrate the United Nations Organization as an Utopian folly, the historic truth is that the U.N. is in great measure America's child. Our grandest ideals went into shaping this imperfect organization. Our nation is a charter member, in bold italics, of the U.N. Our status as a signatory to the treaty that created the U.N. Should, by all rights, place the principles of the U.N. right up there with our own Constitution. Article Six of the U.S. Constitution, in its “supremacy clause” states that
“This Constitution, and the laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the Supreme Law of the land; and the Judges in every state shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
The United Nations General Assembly subsequently, in that epochal year of 1948, adopted the Universal Declaration of Human Rights. In Article 21 of that Declaration it is set forth that
“The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures” (bold italics mine).
“Equal suffrage” is a principle which would seem, by any reasonable standard, to forbid a system by which one voter can have 17, or 34.3, or 68 ½ times as much weight accorded to his or her vote than another's, just because of the accident of geography, due to which side of a “state line” they reside on. Nor ought we to forget the plight of our fellow citizens whose “state line” is a District boundary. If the District of Columbia were allowed representation in the Senate, District voters would be at a 59.2:1 “Senate impact” advantage over Californians. Since they have, however, NO voice in the deliberations of the Senate, this void of representation, mathematically at least, outweighs to a virtually infinite extent the crazy comparative metrics derived from the California-Wyoming or Texas-Vermont calculations!!
As I have long understood it, the “supremacy clause” has been deemed to place treaties one rung below the Constitution, although the wording of Article Six does not place in any particular ranking order the three bodies of “Supreme Law” (Constitution, Treaties, and Federal Law) that all outrank anything the “several states” may cook up. Even so, we must assume that the Constitution, being the document which establishes the powers and procedures requisite for American treaty-making, does outrank the treaties made thereunder.
Thus, there is no legal appeal to the Universal Declaration which can be made in the course of a movement to reform the undemocratic Senate. There is, however, moral and logical force in Article 21's language about “universal and equal suffrage”, which most certainly weigh against the anachronism that is the anti-democratic Senate. Of course, we have the power to amend the Constitution, although the mechanism is appropriately daunting. The epochal amendments that were passed in the late 1860's were paid for by the blood of thousands during the Civil War. The 1971 Amendment giving the vote to those aged between 18 and 21 was the fruit of a far less fraught struggle. But both of them came through the constitutionally-established gauntlet and were passed. Far less appropriate and deserving amendments have been passed despite the challenges of the process: think Prohibition.
Once the logical and moral arguments have been made effectively enough to gain massive popular support, why should not an amendment to the Constitution repairing the rent in our democratic raiment which is the anti-democratic Senate succeed? It will surely not be an easy struggle, as all sorts of parochial interests have a stake in the status quo. But when candidate Barack Obama so moved us with his recital of all the things the cynics down the decades have denied we Americans could achieve, we were thrilled by his response,
“Yes We Can”
How, then, are we to refuse the challenge posed by a system of distorted and unjust representation? The famous Fourteenth Amendment, forged in fire on the battlefields of Gettysburg and Vicksburg, used the phrase “equal protection of the laws” in laying down the principle which has come to be known, at least since the 1964 US Supreme Court decision in Reynolds v. Sims, as “one man, one vote”. So the current language of our own Constitution, as amended, cries out against the intolerable absurdity that derives from claiming that we have a “one person, one vote” democracy when, as far as representation in the Senate is concerned, those votes weigh with obscene inequality.
I believe the simplest way to amend the Constitution to fix this enormity would be to add a provision that the Senators shall have voting power in the Senate proportionate to the population of the states that elected them. There would not be many details to work out, if we started with this simple fix. The smallest state by population at the last census (currently, Wyoming) could get two votes, one to be cast by each of its two constitutionally provided Senators. The District, of course, must have two Senators, as well, lest we look too much like an apartheid state. Using the 2000 census numbers, the new DC Senators should have 2.31 votes between them, and California's two senators would share 137 votes. Variations on this formula could be substituted if people found the idea of fractional vote weights unseemly, although it's been good enough for national political conventions and the stock market. We could simply assign each state's Senators a vote weight which is identical to the number of members of the House of Representatives each state has been apportioned. There would have to be some rounding of the numbers under either approach, unless fractional voting were adopted.
Getting such an amendment passed, especially in today's toxic and fractious political atmosphere, is a task whose difficulty I am loath to underestimate. Nonetheless, it can be done, as history witnesses: greater “impossibilities” have been achieved in years past by an aroused and organized American citizenry. It must be done, for the sake of reason and conscience, and certainly if we wish ever to be resoundingly credible abroad as the archetype and template of the democratic process.
So I call on all who read this to join together to make this an important, and in time, unstoppable, cause. It may seem dry as dust, the playpen of only what our dear Rachel Maddow might endearingly call “poli sci geeks”. But who can deny the clear injustice that is hard-wired into the status quo, and, therefore, the fiercely clear imperative to change that status quo? Discuss. Consider. Act. It's preposterous – and frankly embarrassing to me -- that I did not write this essay years ago; even more absurd that someone of greater reputation and influence didn't take to the rhetorical barricades over this wrong many decades ago. Hey: the twenty-first century is about 10% done; let's not let this wait, any more than we would let the challenges of climate change or nuclear proliferation wait. We. Can. Do. It.
Thoughts? Strategies? Dialogue? Pie?