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The impossible quest to fix the Senate?

March 29, 2019

This piece represents the opinion of the author.
Lily Anna Fullam

Whether you view the Constitution as tantamount to scripture or as nothing but a hypocritical piece of parchment, it seems Americans can agree that in these decisive times it is a deeply unamendable document. Yet, during the Progressive Era of democratic zeal that swept our nation from the late 1890s to the early 1920s, many viewed the Constitution as too easily amendable; when this era of reform was finally snuffed out by the economic euphoria of the Roaring Twenties, our Constitution was left four full amendments longer. Income tax was legalized, alcohol was prohibited, women won suffrage, and—least appreciated of all—the power of electing Senators was removed from the state legislatures and granted directly to each state’s people in the 17th amendment.

The 17th amendment was, of course, a fundamental alteration of the mechanics of American government, but it is so uncontroversial and little-discussed today because it was a reform that seems, on its face, both necessary and appropriately teleological. In a democracy, more democracy is always better. Quite simply, democracy is the currency and common language of our times; we cannot see legitimacy outside of it, and when we perceive areas to be lacking in democracy, we rush to fill them with democracy. It is, in our eyes, the salve the solves all. Thus, the pre-17th amendment Senate—a legislative body disconnected from popular sovereignty—was at once illegitimate and anachronistic. It could not stand against the common will of Progressive reform.

However, the 17th amendment and its advocates did nothing to solve the Senate’s fundamental democratic problem. Indeed, the Senate is by design anti-democratic. It is a product of the famous Connecticut Compromise—the Constitutional requirement that gave each state two senators, and was intended to protect small states from domination from by larger states. The idea of the Senate stems not from an interest in the citizens of America, but from an interest in the many states that make up America. In this way, it is best understood as a vestigial organ of the Articles of Confederation; by granting each state equal power it is designed to protect a type of muscular federalism that the Constitution itself has helped to slowly kill and that many now appropriately view as undesirable.

Thus, what we are left with now, in the wake of the 17th amendment, is the worst of both worlds. By making the Senate responsive to the whims of the states’ residents we foreclosed the possibility of populating it with long serving and well-informed elder statesmen, and we ensured that its deliberative character would be diminished—such democratic opening and leveling can have no other effect. Where the Founders envisioned a calmer, more considered Senate checking the hot and intemperate House of Representatives, we now simply have two equally impulsive bodies butting heads. This is not a system of stability held up by well-designed checks and balances. Instead, it is simply an excess of veto points that tends only towards gridlock—gridlock that creates a power vacuum into which an imperial president must necessarily enter.

Worse, the gridlock such a system creates is not even reflective of real disagreement in the American populace. Given the deeply undemocratic nature of the Senate on a national scale, this modern-day sclerosis is but a minority mob checking a majority mob. This cannot stand. It may be reasonable to think a well-chosen group of elites can provide a salutary check on a democratic majority, but to think that a random group of people chosen only by geographic location can provide a salutary check on a democratic majority is both dangerous and nonsensical. People cannot check the people; only elites can do that. This is the thinking behind the Electoral College, the Supreme Court and, once upon a time, the Senate.

But the solution to the Senate, despite what a small but growing number of voices on the right will tell you, cannot simply be to repeal the 17th amendment. Repeal would, in theory, do something to provide us with more qualified senators, but such a move would never be seen as legitimate. People in a democracy can only be convinced to cede power to people, not institutions. And even if repeal was feasible, it would do nothing to solve the underlying issue of the radically disproportional nature of representation in the Senate.

To illustrate how bad this particular problem is set to become, consider the predictions of political scientist Norm Ornstein. By 2050, he says, “70 percent of Americans will be living in just 15 states,” meaning that 70 percent of Americans will be represented by just 30 Senators while 30 percent of Americans will be represented by 70 senators. With these numbers, it starts to get difficult to even call America a democracy. Our federal system needs some level of disproportionate representation to protect the small states from the large states, but there simply is no justification for small states to dominate large states.

So, what to do? Unfortunately, outside of finding a way to convert the Senate into a virtuous aristocracy, there is no real solution. Article V of the Constitution even precludes the possibility of passing a constitutional amendment to deprive states of equal suffrage in the Senate, as there is a requirement that each state consent to being deprived of its equal suffrage. And Wyoming, for one, will never consent.

The Constitution, then, is flawed beyond repair; to follow its commands is to corrupt the very country it is designed to protect. The Progressive reformers had the right idea about many things, but in the Senate, they attempted to fix what could not be fixed, and so they only made the problem worse. That is why, 230 years after ratification, the time for a constitutional convention is ripening. I will not sit here and call for it unilaterally; instead, together as Americans, we will all divine when the time is finally ripe. But never fear—when we finally reconvene in Philadelphia, as we must to chart out the next 200 years of our future, there is no reason to believe America will not be born again, stronger than ever.

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