With the Brett Kavanaugh confirmation now, at last, over, the left seems to have a new meme: The Senate is undemocratic.
As the New York Times editorial board wrote on Saturday:
It’s worth noting that, of the five justices picked by Republicans, including Judge Kavanaugh, four were nominated by presidents who first took office after losing the popular vote. And the slim majority of senators who said they would vote to confirm Judge Kavanaugh on Saturday represent tens of millions fewer Americans than the minority of senators who voted to reject him. The nation’s founders were wise to design the court as a counter-majoritarian institution, but they couldn’t have been picturing this.
And the left is correct. Each state has two senators, regardless of population. Wyoming’s two senators represent only 579,000 people, and California’s two represent 39,000,000—68 times as many. It’s hard to argue that that is democratic. Indeed, in Baker v. Carr (1962), the Supreme Court ruled that both state legislative chambers had to be apportioned according to population because of the 14th Amendment’s equal protection clause.
In the original Constitution, however, the House was supposed to represent the people, so its seats were apportioned based on population. But the Senate was designed to represent the sovereign states, who had only ceded certain powers to the federal government. Until the 17th Amendment was ratified in 1913, it was state legislatures that appointed senators, not the people.
Apportioning the House according to population while giving the states equal suffrage in the Senate was the great compromise that had made the Constitution possible. Small states, such as Georgia and Delaware, had demanded equal suffrage in each house while large states such as Virginia and New York, had fought for a Congress based solely on population. The delegates split the difference.
Is suffrage in the Senate based on population even possible in the real political world? The answer is almost certainly no. There are far more states whose power is increased from equal suffrage than there are states disfavored by it. After all, the top 15 states have about half the population of the country. The 35 smaller states are not likely to give up the advantage equal suffrage gives them.
And there is another problem. Article V of the Constitution, which dictates how amendments are added, forbids any amendment regarding three parts of the Constitution. The first forbade outlawing the slave trade before January 1, 1808. (It was outlawed on that date, a bill passed earlier coming into effect that day.) The second deals with how direct taxes can be apportioned among the states. (But the Constitution does not define what constitutes a direct tax—and omission that has caused no little constitutional wrangling over the years.) The final prohibition is “that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”
In other words, getting rid of equal suffrage in the Senate would require two amendments, not one, the first to amend Article V, the second to then amend Article I.
The sun will rise in the west before that happens.
