The US Senate: Where Democracy Goes to Die

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.


  1. Critical Reading March 12, 2013 at 12:04 pm | #

    Great lesson plan. I am stealing it for my intro ethics class when we cover race and affirmative action.

  2. Malcolm Schosha March 12, 2013 at 12:37 pm | #

    I would have thought that you would advocate at-large voting, or a modified version of it such as was suggested by Lani Guinier.

  3. Glenn March 12, 2013 at 1:31 pm | #

    The constitution does, in my opinion, suck. And it is misunderstood by both the right and the left.

    William Hogeland wrote a book, “Founding Finance: How Debt, Speculation, Foreclosures, Protests, and Crackdowns Made Us a Nation”, that hasn’t received the attention yet that it deserves.

  4. marc sobel March 12, 2013 at 1:57 pm | #

    It is interesting that these roadblocks favor conservatives. Why don’t “liberals” filibuster conservative measures? Something intrinsic to liberalism? Or just that we don’t have 41 liberals?

    • Blinkenlights der Gutenberg March 13, 2013 at 1:28 pm | #

      The republicans were not filibustering everything either, until Obama was elected. There is no way the filibuster would have lasted, otherwise. The filibuster is not in the constitution, it’s set by a simple majority vote at the beginning of the session.

      • Blinkenlights der Gutenberg March 13, 2013 at 1:30 pm | #

        …so to answer your question, the fillibuster was not used routinely because representatives from both parties maintained a certain standard of civility — which evaporated (on the GOP side) with Obama’s election.

  5. debmeier March 12, 2013 at 2:21 pm | #

    But the House of Reps is also skewered, or whatever you call it!!!! As long as there are enormous gaps in the power of the few versus the power of the many ways will be found…. We need to build the power of the many–to look again at a number of oddities that the 18th century mind-set of our founders produced. Thanks, Corey Robin.

  6. Roquentin March 12, 2013 at 2:22 pm | #

    A major part of my college curriculum was Russian studies, including spending a month there. I never stopped being amused at how quickly people dismissed both Soviet democracy and Putin’s “managed democracy” as being a sham (which is basically true), while at the same time being completely and utterly oblivious to the flaws such as those you are speaking about within our own system. Lots of old fashioned psychological projection, throwing stones from glass houses, etc. The residual effects of the Cold War propaganda machine and all the phony distinctions which went with it certainly have stayed with us. It’s very hard for most people in the US to grasp how hypocritical that looks from everywhere else in the world much less why our form of liberal capitalist democracy is treated with such open contempt.

  7. Elizabeth Donahue March 12, 2013 at 3:44 pm | #

    Why don’t you first talk to then about the word “race” is a misnomer. And fir the rest of the discussion substitute ” race”. for ” ethnic”.

  8. neffer March 12, 2013 at 5:59 pm | #

    So, if we got rid of the Senate, we would have – at least now – a GOP controlled house that would prevent the laws that you claim to support. In fact, the Senate, at this point, is the more liberal legislative body. And, in fact, the House would be better able to push the conservative agenda through.

    I do not see the problem you see. If left to its own devices, the House would blow with the political wind, a wind which is just now very conservative. The Senate, with it incremental elections, prevents the, at present, very conservative House from pushing its agenda too far.

    • Critical Reading March 12, 2013 at 6:08 pm | #

      But it’s actually not true that the political wind is very conservative—on almost all significant issues public opinion is to the left of both the Republicans and the Democrats:

      • neffer March 12, 2013 at 7:31 pm | #

        Maybe so. But that does not quite jell with , for example, the 2010 or even the 2012 elections. In 2012 the GOP won the House. In 2010 the GOP won a landslide, perhaps in reaction to the ACA. Which is to say, what you write could be so but the issue is more complicated than the noted polling data show.

      • Blinkenlights der Gutenberg March 13, 2013 at 1:35 pm | #

        But neffer is right. Owing to the way districting works within states, the senate is actually more democratic than the house. If the districting of states is undemocratic, the districting *within* states is only moreso (owing both to the fact that a major political divide is between city and rural; and also to the gerrymandering that goes on every census).

    • jonnybutter March 12, 2013 at 9:56 pm | #

      So, if we got rid of the Senate, we would have – at least now…

      All other things are never equal, obviously. And, unfortunately, it’s very close to impossible to get rid of the Senate. At least it can be reformed, theoretically.

      I think there’s a very good reason newer democracies are not generally bicameral presidential set ups. I don’t have a cite handy, but i’m pretty sure that even the US State Dept. advising countries writing new constitutions, advise against bicameral presidential systems. I also think it’s a stretch to say that EU governments are less democratically responsive than the US. The US system is not just sclerotic, but unaccountable. Not the case in a parliamentary system.

  9. jonnybutter March 12, 2013 at 6:33 pm | #

    I do not see the problem you see.

    The US Senate is grossly (up to 60:1) undemocratic, among its other faults. You don’t see an inherent problem with that, Neffer? Just wondering.

    • neffer March 12, 2013 at 7:55 pm | #

      I do not understand a representative republic to be the same thing as a democracy – related but not the same. By definition, a representative republic must have undemocratic features. The question is whether the system keeps the peace and does well by those represented. On that score we have a way to go. We do better than most other countries. We have not created anything like the anti-democratic EU, which is entirely beyond the will of the people in Europe. The decisions in our country did not create the economic nightmare that the Eurozone countries have created. So as many problems as there are that our system has, it is more democratic than in Europe and the voters are listened to more here than there.

      You are correct that the 2 senators per state is not as fair or democratic as it should ideally be. But I do not see any ready or easy fix. In fact the fix might be worse than the problem. So I do not see a big issue here.

      • Corey Robin March 12, 2013 at 8:54 pm | #

        I think the record of the Senate on African American rights shows very clearly that the Senate does not do well by those represented (unless you want to make the argument that America is a white country and thus the Senate does fine by that measure, which it does.) The list of legislation for African American rights that has gone to die in the Senate, after being passed the House, is very long. As I just pointed out to Norwegian guy. As for “the system” keeping the peace, that’s true — if you exclude the Civil War (I won’t even get into the history of strike-related violence in this country, which is far more intense than anything in Europe). That’s kind of a big exception.

      • neffer March 13, 2013 at 1:20 pm | #

        Corey Robin writes:

        I think the record of the Senate on African American rights shows very clearly that the Senate does not do well by those represented (unless you want to make the argument that America is a white country and thus the Senate does fine by that measure, which it does.)

        The record shows a lot of things. Many bills favored by African Americans have been enacted. Others have not been. Some bills had problems in the House. Others in the Senate.

        The bottom line here is that legal discrimination against African Americans has been outlawed, both due to the Court system – with Judges approved by the Senate playing prominent roles – and due to bills voted upon in the Senate. Not everything desired by advocates for African Americans has become law. The merits of this or that piece of legislation were not necessarily identically worthy. In some instances, there were major splits among liberals – e.g., regarding affirmative action. In some instances, disagreements caused major splits for Democrats – the notion of Reagan Democrats coming to mind off the top of my head.

        Your manner of analysis eliminates complications, assigning blame – and asserting that blame is really appropriate – goes to the manner in which the Senate is organized. Can you really say that every bill passed by the House that was blocked by the Senate failed due to the Senate’s structure rather than to differing views even among Democrats as to the merits of a bill? Was, for example, Daniel Patrick Moynihan alone among Democrats in being concerned about affirmative action or in being worried about the demise of families in the African American community being due, in part, to the form of government assistance?

        In any event, TODAY – i.e., not in, for example, the 1960’s – it is the House, not the Senate which is the major hold up to the agenda put forward by the left wing of the Democrats. To hide that over by noting past legislation fought over in earlier times in the Senate does not do much to advance your argument.

        • Corey Robin March 13, 2013 at 1:52 pm | #

          So many things fascinate me about this response.

          First, the way it moves from “African American rights” (my usage) to “bills favored by African Americans.” The reason I invoked my usage was precisely to point to the specific types of legislation I was talking about: anti-lynching bills, bills to eliminate the polls tax, bills to eliminate segregation, and basic civil rights. These are all now considered to be part of the matrix of essential rights. They are not mere preferences, even among those who are not African Americans. The fact that someone could so seamlessly transition from one usage to the other speaks volumes.

          Second, in my comment, I was rather specific about which rights I was talking about; in fact, I’ve just reiterated the list here. You want to change it into a discussion of affirmative action, about which I said nothing. For a reason: precisely because affirmative action is not incontestably considered to be part of that matrix of rights (I happen to believe that it should be, but that is neither here nor there for the purposes of my argument). In other words, if you wish to establish a claim that the Senate has not protected the rights of historically subjugated minorities, you do best to focus on those cases that are considered to be, uncontroversially, the rights of historically subjugated minorities. (And by the way, I’m fairly certain that affirmative action legislation that passed the House in the 60s and 70s also passed in the Senate; I’d have to double check to make sure, but on the issue of affirmative action in particular, the history doesn’t support your point that it was Democratic opposition that undid it in the Senate b/c it was not in fact undone in the Senate at all.)

          Related to that, you ask, “Can you really say that every bill passed by the House that was blocked by the Senate failed due to the Senate’s structure rather than to differing views even among Democrats as to the merits of a bill?” If by “every bill passed by the House” your referring to the bills I explicitly reference — that is, bills on behalf of a now uncontroversial definition of African American rights – then I think the answer is yes. Though I’m fairly certain white southern Democrats thought anti-lynching bills were wrong on the merits as well, it was not the strength of their arguments (such as they were) that enabled them to carry the day.

          Third, you’re actually wrong that it was the Court to which we owe such thanks on African American rights. If anything, we have the Court to thank for helping to create Jim Crow in the first place (the Cruikshank decision as well as the Civil Rights cases of 1883 were key): it was that very Jim Crow that put those senators into the position they were in whereby they could thwart the popular will of the House. And the Court was exceedingly slow to act against segregation (the House had long acted against it) and its “all deliberate speed” formulation proved to be a disaster that required both congressional legislation and a civil rights movement to turn it into fact.

          Last, as for today, it’s true that the House is the body that’s holding things up. But since I was fairly careful to outline what it was that I was and wasn’t talking about, that’s really neither here nor there. In the long arc of history — I seem to remember you passing yourself off as one in a previous comment — the Senate has been a disaster. And I didn’t even bring up labor, as I mentioned, but there the case is equally powerful as with race.

          If you have some concrete fact to contest or to “nuance” the claims I’ve made here, I’m all ears. But your idle musings aren’t really pushing the conversation forward.

      • Blinkenlights der Gutenberg March 13, 2013 at 1:46 pm | #

        Corey, your criticisms of the senate are correct, but you forget to add that they also apply to the house. The districting within states represents exactly the same kind of structure as that you criticize.

        In the last election, the votes for Democrats would have given them a majority in the house, in a parliamentary system. But because of the layout of districts within states, the GOP kept the majority.

        With our current districting and correlations between political attitudes and districts, the house is not less, not more, representative than the senate.

        This is a simple empirical fact. The House’s GOP/Democrat percentages are simply further away from the GOP/Democrat percentages of votes than the corresponding figures for the Senate.

        If both House and Senate were switched to proportional representation, the House would change more.

      • Critical Reading March 13, 2013 at 5:44 pm | #

        What federal affirmative action legislation? Apart from the Civil Rights Act itself, it’s all been done by presidential executive orders and Supreme Court rulings.

      • neffer March 14, 2013 at 10:04 am | #


        The issue raised was the supposedly about a Senate in which the 2 Senator per state formula supposedly unfairly disadvantages certain political agendas. Cherry picking what legislation fits your theory is not, as a matter of simple logic, a valid way to advance your theory. So, I cannot imagine why you attempt to create a substantial distinction between bills that have become part of the matrix of rights and those which the same interests hoped to become a part of that matrix.

        My theory is that there are many reasons any piece of legislation might fail, in this case, the sort of legislation that you might favor. At this time, the most important explanation for explaining today’s world – not the world of the 1950’s, for example – is that the House is hostile to the agenda you favor. You do not want to see that theory so you kick mud into the air in the hope it leaves only your theory visible.

        Another poster here claims that the House is also undemocratic due to how districting occurs. This supposedly explains why the President was re-elected while the House remained with the GOP. There could be some truth to that although I think it does not explain why, in this age of supposedly manipulated election results due to districting, there have been more shifts back and forth between the two major parties since the 1980’s than in the long period beginning from the time of the Great Depression until 1980. That explanation most particularly does not explain the shifts in 2006 and 2010.

        One might consider in particular that the 2010 election strongly suggests that many in the country were concerned that the Democrats pushed the ACA as being more important than addressing the results of the economic meltdown of 2008 – i.e., that the Democrats had acted against the will of the people to work towards a return to what was perceived, pre-2008, by many people to be economic normalcy. Put differently, there was a failure to focus, as President Clinton once said, on the economy like a laser beam. And, the fact that the President was forgiven in 2012 suggests that he was perceived as having understood the message of the 2010 election. The House election of 2012 is also consistent with that result, given that the public views the President as tending, when given enough room, to veer away from issues that, to most people, are centrally important (i.e., the economy).

        In other words, I think that the best explanation of political events and the composition of the legislature is what people want. While there are non-democratic features involved, they explain only marginal matters, not central matters. And, notwithstanding the composition of the Senate, substantive legislation has been passed while giving considerable input – perhaps too much but, of course, that is in the eyes of the perceiver- in the process, to the views of those with less actual public support.

  10. Norwegian Guy March 12, 2013 at 7:54 pm | #

    It’s not unusual that more lightly populated areas have a larger representation in parliaments than the more densely populated areas have, and most federal states gives the smaller states a disproportional high number of representatives in, at least in one chamber. I doubt slavery was the cause of this in every country, so there must be a few other explanations/justifications as well. What makes the US upper chamber special is more its power compared to the lower chamber than its composition.

    And was it really the equal number of Senators per state that made it difficult to pass civil rights legislation? There was a larger proportion of Representatives (120/435) than of Senators (27/100) that voted against the 1964 Civil Rights Act. As far as I kind see it was the filibuster that was the largest obstacle, not the composition of the Senate.

    • Corey Robin March 12, 2013 at 8:48 pm | #

      The filibuster certainly played a major role, no doubt about that. But there were additional factors as well. First, southern senators had much longer tenures than northern senators. That was due in part to the fact that the South was a one-party state in which a major part of the population — blacks — who constituted near majorities in some states could not vote. So the issue of population size played a critical role in maintaining the longevity of these senators. Second, that matters b/c that longevity gave these senators more power in the Senate due to the seniority system. They controlled a lot of the key committees, and were able to stop legislation from even getting to the Senate floor (so the filibuster wasn’t even needed). So you’re right that it’s not exclusively due to the issue of apportionment by state, these other features (and not just the filibuster) made that apportionment especially toxic. One other thing: it’s a mistake to look only at the Civil Rights Act. I don’t have the numbers, but there was a host of legislation that passed the House, often by very large majorities, only to be stymied in the Senate: laws banning the poll tax, enforcing voting rights for African Americans, banning segregation in schools (these passed the House before, I believe, even Brown v. Board of Ed), punishing lynching, and more. Finally, I didn’t mean to suggest that slavery was the only issue that went into the creation of the Senate, but it was clearly a factor.

      • Manju March 15, 2013 at 6:52 am | #

        “…there was a host of legislation that passed the House, often by very large majorities, only to be stymied in the Senate: laws banning the poll tax, enforcing voting rights for African Americans, banning segregation in schools (these passed the House before, I believe, even Brown v. Board of Ed), punishing lynching, and more.”

        The biggie is the 1957 Civil Rights Act. What emerged from the House was in essence the 1964 one. The Senate killed it, not via the filibuster (though Strom yacked on) but in committee, where it was watered down to the point of meaninglessness.

        Now, the mainstream view is that the watered down was necessary in order to avoid the filibuster. But civil rights veterans have never bought this. Why? Ike-Nixon (really, Nixon) had a plan in place to get rid of the filibuster via a straight vote. it failed.But it was damn close.

        The man most responsible for its failure was the then Senate Majority Leader, who was….

  11. hjfoley March 13, 2013 at 6:43 am | #

    Reblogged this on misebogland.

  12. Benjamin David Steele March 13, 2013 at 2:49 pm | #

    Reblogged this on Marmalade and commented:
    This is the kind of stating the obvious that we should hear more of, but most people are trapped in the status quo reality tunnel.

  13. Corey Robin March 13, 2013 at 6:55 pm | #

    Critical Reading: I think there was either some revision of the Civil Rights Act in the early 70s or there was additional legislation. There was definitely one piece of new legislation. I’ll see if I can find it.

  14. Corey Robin March 14, 2013 at 12:30 pm | #

    Neffer: If you re-read the thread that produced your last comment, you’ll see that I begin very clearly with “African American rights.” It’s not cherry-picking evidence to support a theory if the theory quite clearly specifies the terms of the proposition. Affirmative action is not even considered a form of a right at all, so I really don’t know what you’re going on about. And again unless you have concrete evidence about the explicit issue I raised in my original response to you — the relationship between the Senate and African American rights — and not vague hand-waving or diversions from that issue (I’ll point out that you have yet to produce an actual empirical instance that disconfirms my proposition about the relationship between the Senate and African American rights), I don’t really have much to say to you.

    • neffer March 14, 2013 at 4:10 pm | #


      My comments back to you were all advanced with the original article and my original comment in mind. You will see that your comments (not the article, obviously) came beneath mine. While I did make responses to your comments, they were made with the article and my original and other comments in mind. In fact, my original comment read:

      So, if we got rid of the Senate, we would have – at least now – a GOP controlled house that would prevent the laws that you claim to support. In fact, the Senate, at this point, is the more liberal legislative body. And, in fact, the House would be better able to push the conservative agenda through.

      I do not see the problem you see. If left to its own devices, the House would blow with the political wind, a wind which is just now very conservative. The Senate, with it incremental elections, prevents the, at present, very conservative House from pushing its agenda too far.

      Further, the very title of your article is: “The US Senate: Where Democracy Goes to Die.” Also, from your article: “‘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.'” So your article is not limited to “African American rights” or anything of the sort. Your article has a broader sweep. Perhaps, you did not write the original article as crisply as you might have intended.

      My general comment is that you vastly overestimate the significance of the origins of the 2 senator per state provision. Today, the House or the Senate could block legislation and from completely different points of view. And, there is no evidence that today’s senate is hostile to “African American rights.” I do not even see how you have shown that, at this time – and note, the title of your article is in the present, not the past, tense -, the 2 senator per state system is all that serious problem to the passage of legislation, as opposed to the form that legislation takes and to the time it takes to build a sufficient consensus to push through legislation. And note: one of the clear aims of the founding father was to prevent factions from pushing through legislation that did not have a considerable consensus favoring it. And, there are factors built throughout the government to make the passage of laws difficult.

      A rather important test case for your theory – i.e, the one actually presented in your article, whether such was what you intended to write or not – was the passage of the ACA. It was legislation favored by a minority of the public (as the election results in 2010 make crystal clear to anyone with eyes). Yet, it passed and became law. And, it had the impact on the public that occurs when a controversial piece of legislation that does not really have majority support passes. The public reacted with horror and, in the next election, there was a substantial price paid by the party which confused its view of the public good with what the majority wanted congress to be doing.

      Such is not rocket science to understand. And, the notion, advanced by one poster above, that polling supports all sorts of liberal positions is belied by the fact that support for this or that idea is quite different from support for this or that piece of concret legislation – the usual reason for the difference between polling that supports an idea and actual support for a concrete piece of legislation is that the polling does not typically add in the cost, as in the public favored insuring everyone but that is only in principle, not when it comes to the public paying for the program or forcing people to do things, etc., etc..

      There is another important point to note about your article. The origins of something do not define that thing over time. That is Logic 101. Alchemy became chemistry. So, even mistakes like alchemy can be fruitful. The 2 senator per state rule is something different today than at the time of its origin. It has not been shown by you to be a problem today or racist today. Those who put the 2 senator rule into place are all long dead, as are their children and grandchildren and great grandchildren, etc., etc. So, the reality is that you have not really made much of a point.

      You might also have noted, had you wanted to make a point, that senators were originally appointed, not elected. Hence, the issue about the democratic nature of the Senate differed entirely at the time of its creation than after the time that Oregon, at the turn of the 20th Century, began to experiment with elections for the Senate. And, that eventually led to the 17th Amendment, which created an entirely new basis for the Senate, adding the will of the people more directly – but, not with each state being equal, quite obviously – than prior to that time. It would, in order for your argument to be advanced, be necessary to determine whether, pre-17th Amendment, it was more difficult to pass legislation than it became thereafter. My bet is that you will find something quite different, viz. that the ability to push legislation through the Senate depends on all sorts of factors and that, in some periods, it is easier than others and some pieces of legislation are easier to pass than others, whether the legislation relates to “African American rights” or to something else.

  15. ahmedrteleb March 15, 2013 at 3:48 am | #

    Sounds like a stimulating professor! Have you ever brought up the undemocratic nature of voting itself, that is republicanism. It’s based on a principle of distinction (aristocracy in Aristotle’s words) that implies certain people should rule over others.

  16. ahmedrteleb March 30, 2013 at 5:56 pm | #

    Those interested in the un-democratic aspects of elections see this article from about 20 years ago:

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