Today, the United States Senate voted to eliminate the filibuster for most presidential nominees. That decision does not apply to legislation or Supreme Court nominees. Republican John McCain responded to the vote, “Now there are no rules in the United States Senate.” The Reactionary Mind at work. (Incidentally, Patrick Devlin made a similar argument in The Enforcement of Morals, which led H.L.A. Hart to remind him that a change in the rules of an order need not constitute the elimination of that order or of order as such.) But what does the vote actually mean? As Phil Klinkner explained to me, and as this old Washington Post piece confirms, before this vote, senators representing a mere 11% of the population […]

Every once in a while I teach constitutional law, and when I do, I pose to my students the following question: What if the Senate apportioned votes not on the basis of states but on the basis of race? That is, rather than each state getting two votes in the Senate, what if each racial or ethnic group listed in the US Census got two votes instead? Regardless of race, almost all of the students freak out at the suggestion. It’s undemocratic, they cry! When I point out that the Senate is already undemocratic—the vote of any Wyomian is worth vastly more than the vote of each New Yorker—they say, yeah, but that’s different: small states need protection from large […]