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 states. And what about historically subjugated or oppressed minorities, I ask? Or what about the fact that one of the major intellectual moves, if not completely successful coups, of Madison and some of the Framers was to disaggregate or disassemble the interests of a state into the interests of its individual citizens. As Ben Franklin said at the Constitutional Convention, “The Interest of a State is made up of the interests of its individual members. If they are not injured, the State is not injured.” The students are seldom moved.
Then I point out that the very opposition they’re drawing—between representation on the basis of race versus representation on the basis of states—is itself confounded by the history of the ratification debate over the Constitution and the development of slavery and white supremacy in this country.
As Jack Rakove argued in Original Meanings, one of the reasons some delegates from large states ultimately came around to the idea of protecting the interests of small states was that they realized that an equal, if not more powerful, interest than mere population size bound delegate to delegate, state to state: slavery. Virginia had far more in common with South Carolina than it did with Massachussets, a fact that later events would go onto confirm. In Rakove’s words:
The more the delegates examined the apportionment of the lower house [which resulted in the infamous 3/5 clause], the more weight they gave to considerations of regional security. Rather than treat sectional differences as an alternative and superior description of the real interests at play in American politics, the delegates saw them instead as an additional conflict that had to be accommodated in order for the Union to endure. The apportionment issue confirmed the claims that the small states had made all along. It called attention not to the way in which an extended republic could protect all interests but to the need to safeguard the conspicuous interest of North and South. This defensive orientation in turn enabled even some large-state delegates to find merit in an equal-state vote.
As Madison, a firm opponent of representation by states, would argue at the Convention:
It seemed now to be pretty well understood that the real difference of interests lay, not between large and small but between the Northern and Southern States. The institution of slavery and its consequences formed the line of discrimination.”
True, Madison made this claim in the service of his argument against representation by states, but for others, his claim pushed in the opposite direction: a pluralism of interests in an extensive republic was not, as Madison claimed in Federalist 10, enough to protect the interests of a wealthy propertied minority. Something more—the protection of group interests in the Senate—was required. (Which is why, incidentally, I’m always amused by conservatives’ horror at the notion of group rights: what do they think the Senate is all about if not the protection of group rights? This is not to say that there aren’t principled reasons to oppose group rights; I’m commenting merely on the scandalized tone of the opposition.)
And when one considers how critical the Senate has been to the protection of both slavery and Jim Crow—measures against both institutions repeatedly passed the House, only to be stymied in the Senate, where the interests of certain types of minorities are more protected than others—the distinction between race and state size becomes even harder to sustain. Though the Senate often gets held up as the institution for the protection of minority rights against majoritarian tyranny, the minorities it protects are often not the powerless or the dissenters of yore and lore.
Indeed, for all the justified disgust with Emory University President James Wagner’s recent celebration of the 3/5 Clause, virtually no one ever criticizes the Senate, even though its contribution to the maintenance of white supremacy, over the long course of American history, has been far greater than the 3/5 Clause, which was nullified by the 14th Amendment.
This is all by way of a long introduction to a terrific article in the New York Times by Adam Liptak on just this issue of the undemocratic nature of the Senate, and some of the racial dimensions of that un-democracy. Just a few excerpts:
Vermont’s 625,000 residents have two United States senators, and so do New York’s 19 million. That means that a Vermonter has 30 times the voting power in the Senate of a New Yorker just over the state line — the biggest inequality between two adjacent states. The nation’s largest gap, between Wyoming and California, is more than double that.
The difference in the fortunes of Rutland and Washington Counties reflects the growing disparity in their citizens’ voting power, and it is not an anomaly. The Constitution has always given residents of states with small populations a lift, but the size and importance of the gap has grown markedly in recent decades, in ways the framers probably never anticipated. It affects the political dynamic of issues as varied as gun control, immigration and campaign finance.
In response, lawmakers, lawyers and watchdog groups have begun pushing for change. A lawsuit to curb the small-state advantage in the Senate’s rules is moving through the courts. The Senate has already made modest changes to rules concerning the filibuster, which has particularly benefited senators from small states. And eight states and the District of Columbia have endorsed a proposal to reduce the chances that the small-state advantage in the Electoral College will allow a loser of the popular vote to win the presidency.
What is certain is that the power of the smaller states is large and growing. Political scientists call it a striking exception to the democratic principle of “one person, one vote.” Indeed, they say, the Senate may be the least democratic legislative chamber in any developed nation.
Behind the growth of the advantage is an increase in population gap between large and small states, with large states adding many more people than small ones in the last half-century. There is a widening demographic split, too, with the larger states becoming more urban and liberal, and the smaller ones remaining rural and conservative, which lends a new significance to the disparity in their political power.
The threat of the filibuster in the Senate, which has become far more common than in past decades, plays a role, too. Research by two political scientists, Lauren C. Bell and L. Marvin Overby, has found that small-state senators, often in leadership positions, have amplified their power by using the filibuster more often than their large-state counterparts.
Beyond influencing government spending, these shifts generally benefit conservative causes and hurt liberal ones. When small states block or shape legislation backed by senators representing a majority of Americans, most of the senators on the winning side tend to be Republicans, because Republicans disproportionately live in small states and Democrats, especially African-Americans and Latinos, are more likely to live in large states like California, New York, Florida and Illinois. Among the nation’s five smallest states, only Vermont tilts liberal, while Alaska, Wyoming and the Dakotas have each voted Republican in every presidential election since 1968.
The article is long, but it’s worth the entire read. A model of how good journalism can incorporate the insights of historical and institutionalist political science (and not just the number-crunching kind).
Update (12 pm)
A commenter at Crooked Timber reminded me of this great review by Hendrik Hertzberg of Robert Dahl’s book on the Constitution. Hertzberg quotes this line from Alexander Hamilton at the Convention that I wish I had remembered and quoted in my post:
As states are a collection of individual men, which ought we to respect most, the rights of the people composing them, or of the artificial beings resulting from the composition? Nothing could be more preposterous or absurd than to sacrifice the former to the latter. It has been said that if the smaller states renounce their equality, they renounce at the same time their liberty. The truth is it is a contest for power, not for liberty. Will the men composing the small states be less free than those composing the larger?
Update (12:30 pm)
Nathan Newman just posted the following comment on my FB page. I thought it was worth sharing:
Ran the numbers a few years ago and found that states representing just 11% of the population could elect the 41 Senators needed to block any legislation the other 89% of the population wanted to pass. It’s actually worse than that since you only need a majority in each of those states to elect those Senators– so the right 6% of the population could theoretically block any legislation they wanted. Just a crazy anti-democratic institution. The Constitution kick of sucks– yeah, I said it.
Nathan also co-wrote a great article a few years back on the relationship between slavery, the Constitution, and the Reconstruction amendments. Worth a look.