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Stop Trying To Make Reapportioning The Senate Happen. It’s Not Going To Happen


Editors at The Atlantic must have made a New Year’s resolution to spin farther to the left in 2019. If not, it is hard to explain the decision to publish an article this week by Eric W. Orts entitled “The Path to Give California 12 Senators, and Vermont Just One.”

Orts takes up the cudgel against constitutional government and delivers furious blows against the part of our republican government that the left has currently chosen to hate: the Senate. Furious, but ineffective.

Orts, a lawyer and professor at Penn’s Wharton School of the University of Pennsylvania, shares the unfortunate habit of many academics in the social sciences: he applies his pen to subjects and theories that are complete hogwash. That’s fair enough, and not atypical.

The academy was doing clickbait before there were clicks, and an outlandish thesis always makes a bigger splash than a normal one. But if this is the best Wharton has to offer, maybe their most famous alumnus—Donald J. Trump—ought to ask for his father’s money back.

Too Small, Too White, Too Republican

I mention Trump because it is derangement over the president that fuels many of the more miasmic theories of government currently hovering in the left’s fever swamps. After Trump’s 2016 election, the Electoral College became the left’s object of ire. In 2017, gerrymandering in the House of Representatives was promoted as the root of all evil in government—something conveniently forgotten now that Democrats have won control of that chamber.

So in 2018 and now in 2019, the solons and scholars of left train their fire on the upper house, which Republicans still control as a new Congress convenes this week. Specifically, Orts and his cohort are outraged that Republicans have “too many” seats in the Senate.

They chalk this up to the constitutional structure that gives each state two seats regardless of that state’s population, but even this is a complaint devoid of facts. In the incoming 116th Congress, the senators from the ten smallest states are divided between Republicans and Democrats (including two independents who vote with Democrats). So are those from the largest states. So the point still stands: neither party has an advantage based on the size of the states.

Orts may realize this problem, because while he nods at it, his real complaint is race-based. In his Atlantic article, Orts complains that “the current Senate allocation is heavily biased in favor of small states with predominantly white populations, and against large states where whites are in the minority or close to it.”

Citing “Sizing Up the Senate,” a 1999 book, Orts claims that “whites are the only group that Senate apportionment advantages.” It’s not just that equal representation in the Senate is unfair; it is also, we are informed, actually racist.

It’s More than Amending the Constitution

People are welcome to their opinions, of course, but it is how Orts proposes to fix this problem that raises this article from mere intersectional grievance into manifesto territory. Readers of the Constitution will have no doubt recalled by now that Article I declares that “The Senate of the United States shall be composed of two Senators from each State.” Article V renders that provision effectively unalterable by stating that, while every other provision of the Constitution may be altered through the amendment process, “no state, without its consent, shall be deprived of its equal suffrage in the Senate.”

That barrier has long been recognized as essentially insurmountable. Some law professors, including George Mader in this 2016 law review article, have looked at un-amendable sections of the Constitution and concluded that they are not as entrenched as they appear. A constitutional two-step, Mader believes, could offer a way around it:

An amendment removing the entire Equal Suffrage Entrenchment provision, and thereby removing the consent requirement, would not violate the entrenchment provision because such an amendment would deprive no state of its equal vote in the Senate (let alone without its consent). Thus, the Equal Suffrage Entrenchment Provision could be removed by ordinary amendment without violating its own requirement. Once that provision were removed, Article V’s rules for amending the Constitution would no longer require consent from a state for its vote in the Senate to be altered. Such an alteration could be proposed and ratified, again by ordinary amendment.

Orts no doubt sees the political flaw in this plan: small states will recognize instantly that the un-entrenching amendment Mader proposes in the first step will be used to deny them equal representation in the second step. Ratifying that amendment, even ignoring its doubtful, too-clever-by-half constitutionality, would lead inexorably to the second step, which they would presumably rather avoid.

Ignore That Dusty Old Thing

Instead of following even this strained version of the Constitution’s amendment process, Orts suggests ignoring it. (Note that even Mader, operating on the far edge of constitutional analysis, acknowledges that an amendment is necessary to change the apportionment of the Senate.)

He begins by noting that it is the current year and not some other year, so the ideals of the Founding Fathers are, somehow, no longer binding on us: “the Founders could never have imagined the immense expansion of the United States in terms of territory, population, and diversity of its citizens.” Furthermore, some of those Founders were, in Orts’s opinion, bad men. More specifically, they were “property-owning white men, almost half of whom owned slaves.”

Do you see the sleight of hand here? Bad people in a bad time means a bad law, whether or not the law had anything to do with the times, or the thing that made the men so bad. In religion, this heresy is called Donatism: the idea that if a priest is bad, his works (even perfectly ordinary works untainted by whatever makes him bad) are invalid.

Religions quickly snuff out this sort of nonsense, knowing that no one is perfect and such a rule would make every action subject to invalidation. In politics on the left, however, this is no heresy: it is the dogma that allows them to wash away anything they cannot convince the people to change though ordinary means.

Is this contention even worth rebutting? If the age and pedigree of equal representation makes it invalid, can’t the same be said of nearly every word of the Constitution? The same men that woke 21st-century professors now piously revile also created the House, the presidency, the courts, and the entire idea of the United States of America. A similar group wrote the Bill of Rights two years later.

Is freedom of speech no longer sacrosanct because James Madison owned slaves and lived a long time ago? He and his contemporaries surely “could never have imagined the immense expansion” of free speech to include things that in the 18th century were illegal, like blasphemy and obscenity. Yet the law stands, and will continue to do so unless it is legally amended.

Change the Constitution Unlawfully

Instead of amending the Constitution, Orts proposes that Congress just pass a law. No, seriously: that’s the plan. “First,” he writes, “consider that Article V applies only to amendments. Congress would adopt the Rule of One Hundred scheme as a statute; let’s call it the Senate Reform Act. Because it’s legislation rather than an amendment, Article V would—arguably—not apply.”

As Charles C.W. Cooke of National Review quipped in his response to Orts, “never in the history of the English language has the word ‘arguably’ done as much work to support the sentences around it.” A look at the comments section on any news article tells us that, yes, anyone can argue anything.

So, yes, it is arguable that Congress can change the plain text of the Constitution through a statute, even though they could not do so through a constitutional amendment. It is arguable in the same way that it is arguable that the pyramids were built by ancient aliens: that is to say, arguable but so laughable that no one should be able to argue it with a straight face.

Imagine a world where Congress could alter basic provisions of the document that created it merely by passing a bill. If Congress can ignore the provision that says the “Senate of the United States shall be composed of two Senators from each State,” could it not also ignore the one that says “Representatives … shall be apportioned among the several States which may be included within this Union, according to their respective Numbers”?

A Congress that could make the Senate unequal would, necessarily, have the power to make the House equal, among other absurdities. Orts’s theory reduces the Constitution to nothing more than a statute. That is something true of the British system because their “constitution” is unwritten; in nations with written constitutions, it is false.

Affirmative Consent Not Required

Orts avoids the implications of his theory by pretending that the states have already, somehow, given their consent to being deprived of their equal representation. The states, he writes “through the various voting-rights amendments—the Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth—have already given their ‘consent’ by directing Congress to adopt legislation to protect equal voting rights, and this delegated power explicitly applies to ‘the United States’ as well as the states.” That “consent,” he argues, was already obtained in amendments that “give Congress the power—even the duty—to protect U.S. citizens against the denial or abridgment of equal voting rights.”

The Seventeenth Amendment explicitly rebuts any misapprehension that the Fourteenth decrees an unequal Senate.

The problem immediately apparent is that none of these amendments deal with equal representation in the Senate. The Fourteenth only mentions senators to say that former rebels may not be senators unless Congress votes by supermajority to pardon their conduct in the Civil War. The Twenty-Fourth amendment only bars states from imposing a poll tax on Senate elections. The other three amendments do not mention the Senate at all.

One amendment does deal explicitly with the election of senators, and is curiously absent from the Atlantic article (although it is mentioned in passing in the longer working paper Orts put out last month). That is the Seventeenth Amendment, which changed the method of electing senators from election by the state legislatures to direct election by voters. Inconveniently for Orts, that amendment repeated the formula of Article I, stating that “the Senate of the United States shall be composed of two Senators from each State.”

Orts says that “the Supreme Court applied the Equal Protection Clause of the Fourteenth Amendment to declare Senate-like malapportioned state legislatures unconstitutional in a number of cases, such as Reynolds v. Sims in 1964, which established a ‘one person, one vote’ standard.” But that court did not apply its ruling to the Senate, nor would even the Warren Court presume to go so far.

The most obvious reason why? The Seventeenth Amendment, coming later in time than the Fourteenth, explicitly rebuts any misapprehension that the Fourteenth decrees an unequal Senate. Instead, it repeats the original, unamendable formula of two senators from each state.

The Bottom of the Slope

Orts replied to Cooke in a Twitter rant. After accusing Cooke of “white privilege,” he wrote that “Cooke’s only real argument is one about ‘slippery slopes.’ But see a classic argument on this topic by Schauer in 1985 in the Harvard Law Review for a refutation. There is no parade of horribles here. It’s a modest, fair, limited readjustment.”

The Senate was meant to represent the states as states, not merely the people in state-sized districts.

In a way, Orts is right. His proposal would not lead to a slippery slope because it is, itself, the bottom of a slippery slope down which the legal establishment has been sliding for a century. The very first sentence of Orts’s working paper shows how deep the rot has set in: “The United States Senate is not representative of American citizens and violates basic principles of political equality and democracy.”

He’s right: the U.S. Senate is not representative of American citizens. It never has been, and it was never meant to be. If the representation of citizens was the only representation required in our federal republic, there never would have been a Senate in the first place. The Senate was meant to represent the states as states, not merely the people in state-sized districts.

This compromise between the small states and the large ones in agreeing to form a federal union was well-known by every educated American in the first one-and-a-half centuries after it was agreed to, and the idea of the Senate being “unrepresentative” would have seemed as silly to them as saying that the courts or the diplomatic corps were not directly proportionate to state population. Of course they weren’t; they weren’t meant to be.

Our descent down that slippery slope began with the ratification of the Seventeenth Amendment. The primary effect of that amendment was immediate and intentional: states were no longer represented in the Senate as entities, only as collections of people. The effect on legislation was immediate, too, as no senator needed to worry about depriving his home state of its say over its own affairs. He only needed to worry about re-election by the people, many of whom were not bothered by the slow destruction of federalism until it was too late.

The Senate’s Purpose

The secondary effect was to divorce the selection of the Senate from its purpose in the public mind. When states elected senators, everyone knew senators represented states and that each state was equal. After the change, the popular election of senators made people forget the nature of that old compromise and wonder why they (the people, not the states) were not being represented “equally.” But the representation was and is equal; it is the identity of those represented that is mistaken.

That is the sort of logical error that leads Orts to call state legislatures “Senate-like” and “malapportioned,” as though those terms were related. They were malapportioned, but there was nothing “Senate-like” about either house of any state legislature. Whichever subdivisions of the state are used to elect legislators, they are creations of the state.

The representation was and is equal; it is the identity of those represented that is mistaken.

In contrast, the federal government was created by the states, and a natural consequence of that is that states are represented in the government they made. Such seeming “malapportionment” is common to upper chambers, including those of Canada, Germany, and Switzerland, although only the United States observes absolute equality among its states (Switzerland is close).

Some people don’t want the states to mean anything, and see them as outdated administrative divisions that should be ignored. But such protestations always seem to come from the party that believes itself disadvantaged by the situation. When Barack Obama took office with a Senate that was 60 percent Democratic, he used that supermajority to force through sweeping changes to the health-care sector. Fair enough: elections, as he said, have consequences.

But the consequences have to run both ways. Democratic majorities in the Senate gave Obama his signature legislation, but in doing so they created a groundswell of opinion against themselves and so lost control of that body. Articles like Orts’s were unknown in 2009; now, one reads them once a week. While most do not pretend to offer a legal remedy short of a new constitution, a proposal such as this one is what we should have suspected we would eventually find in the puddle at the bottom of the slippery slope.

Forgetting the Senate’s purpose, ignoring the laws that create and define it, and focusing monomaniacally on the political expediency of the day have led to proposals like this one, which ignores the law, twists words until they are unrecognizable, and waves hands over objections. They want what they want, and by any means necessary.

But what they want isn’t an unequal Senate, it is political victory. The Senate would just be the latest casualty.