Fairness
There is a movement on the right. Change the Senate. Repeal the 17th amendment. Return to state legislatures appointing US Senators. In a Cato Institute publication, Gene Healy says that repealing the 17th Amendment would restore the relative independence of the states; states which he describe as now mere administrative units of the federal government.
Let’s look at the other English speaking countries that have an Upper House – Britain’s House of Lords, Australia’s Senate, Canada’s Senate. In the contemporary world that values democracy, the less democratic the Upper House, the weaker it is.
The House of Lords is not what it once was. The latest legislated change for the House of Lords was 1999. It is largely an appointed body. Most of the Lords who can serve have been appointed for life by some prime minister (via recommendations to the queen). Most of the hereditary peers can’t serve. The more than 800 peers elect 90 to represent them.
What can the House of Lords do? Financial bills are out of their realm. They can delay other bills that come from the House of Commons – for up to a year. It is, however, an honor to be a Lord.
Canada’s confederation was formed in 1876. Senators are appointed. They represent four regions – not provinces exactly and not proportionate to population. Initially expected to be a body of notables, now Prime Ministers appoint (indirectly, of course).
What can Canada’s Senate do? Financial bills can’t be initiated. Bills are hardly ever initiated in the Senate. Like the House of Lords, Canada’s Senate can delay. Like the House of Lords – for a year. The Senate cannot prevent Parliament from passing a law.
Australia’s confederation was formed in 1901. Senators are a little more powerful there. They are elected. Twelve per state, six every three years for six year terms. They are proportionally elected.
What can the Australian Senate do? It can initiate legislation, but rarely does. It can prevent a law from being passed. That doesn’t happen often. There is a rarely used antidote to a difference between Parliament and the Senate – a joint session. The smaller Senate can be overwhelmed by the larger Parliament
And the US? Until the seventeenth amendment in 1912, Senators were appointed by state legislators. The theory was that notables would be appointed.As with Australia and Canada, representation is disproportionate – two Senators from each state regardless of population. The 17th amendment required that Senators be elected. The disproportionate representation remained the same. The stricture against initiating financial legislation remained the same. The six year terms with one third of the Senators elected every two years remained the same.
What can the US Senate do? Financial bills cannot be introduced by the Senate. Nevertheless, unlike Britain, Canada, and Australia, our Upper House is powerful. To become a law, a bill has to pass both the House of Representatives and the Senate. And be signed by the President, of course. The US Senate doesn’t just delay. There is no provision for a joint meeting of the 435 member House and the 100 member Senate to reconcile differences.
Would we trade our powerful and more or less democratically elected Senate for a less powerful appointed one? I might. The Senators would not. Nor would the theorists on the right.
Even elected, the US Senate is undemocratic, disproportionate. California and Wyoming have the same number of Senators. California is almost 70 times larger than Wyoming. Texas, the second largest state and Vermont, the second smallest, each have two Senators. Texas is approximately 40 times larger than Vermont. Florida, the third largest state and Alaska, the third smallest each have two Senators. Florida’s population is nearly 30 times greater than Alaska’s. I could go on. New York has nearly 30 times more people than North Dakota.
Is this what the founders had in mind when the constitution was written? The first census of for the new country was in 1790. Virginia was the largest stateDelaware the smallest. Each had two Senators appointed by their legislature. Virginia was 13 times as large as Delaware. Massachusetts and Maine were reported separately in the 1790 census even though Maine was still part of Massachusetts. Including Maine’s population, Massachusetts was the second largest state, Rhode Island the second smallest. Massachusetts was 7 times larger.
Kentucky and Vermont were the third and fourth smallest respectively in the 1790 census. Neither were states at the time the Constitution was written. Both were admitted in the early 1790s – shortly after the census. Counting them as the smallest states for this discussion, we would find that the third largest state, Pennsylvania was aalmost 6 times larger than Kentucky. North Carolina, the fourth largest state was less than 5 times larger than Vermont.
Virginia and North Carolina were slave states. Slaves were part of their population totals. Ratios would have been smaller had slaves not been included in the calculations.
It is unimaginable that those who wrote the constitution wanted states to have the same representation when there was a 70-1 or a 40 -1 or even a 30 – 1 population ratio between the largest and smallest, next largest and smallest, and next largest and smallest states. If Justice Scalia considered original intent on this issue, he would have been shocked at the differentials.
What can we do to remedy this undemocratic situation? What can we do to make the US Senate more reflective of the population it is intended to represent? A topic for another Letter.
I will say this: A common response to complaints about the undemocratic nature of representation in the Senate is that the Senate is intended to represent states. Sure. But not as disproportionally as currently exists.
Another common response is that we are a republic not a democracy. We certainly are a republic. We do not have a monarch. Being a democracy, however, is an absolute good. We should get closer to being a genuinely representative democracy.
