John Sparks: Founders’ wisdom on Senate still works today |
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John Sparks: Founders’ wisdom on Senate still works today


Periodically, those who do not think the U.S. Constitution is “democratic” enough set out to repudiate that document’s genius. The Electoral College is often the recipient of such attacks. The most recent constitutional provision to be called into question is Article I, section 3: “the Senate of the United State shall be composed of two Senators from each state.”

Professor Eric Orts of the Wharton School complains in a recent article in The Atlantic: “Today the voting power of a citizen in Wyoming, the smallest state in terms of population, is about 67 times that of a citizen in the largest state of California … the situation is untenable.”

Orts proposes a plan in which every state would get one senator out of the senatorial seats available (which under his scheme would have to be increased to 110 from the current 100), and the rest would be apportioned according to population. Under the Orts plan, California would get 12 senators instead of its current two, for example.

What is objectionable about this proposal? First, it fails to recognize that one of the reasons the Constitution has been protective of liberty is because it was not intended to be purely democratic. Political theorists call it “mixed government.” The Founders combined the strengths of various ancient governmental forms — democracy, aristocracy and monarchy. They gave “monarch-like” powers, such as the veto and the pardoning power, to the president. They made other parts of the government, like the federal judiciary, much more “aristocratic.” Federal judges are appointed, not elected, and serve for life.

When it came to the legislative branch, the Founders created one legislative body (the House) which is more “democratic.” Large populous states like California have many representatives — 53 currently for California — while Montana, Wyoming and even the largest state in geographic size, Alaska, each have only one representative. In the House, more citizens equal more representatives.

The other legislative body, the Senate, was intentionally constituted differently. It is not directly representative of the people but of the states, which means that each state has equal representation in the person of its two senators. Madison said in Federalist No. 58: “… one branch of the legislature is a representation of citizens; the other of the states: in the former, consequently the larger states will have most weight; in the latter, the advantage will be in favor of the smaller states.”

Even an elementary student of American politics knows that this distinction between the House and the Senate was wrought by the Great Compromise between the large, more populous states and the small states. If it had not been reached in Philadelphia in the summer of 1787, an impasse might well have disrupted the Union of the Several States indefinitely. In fact, this compromise was deemed so important to the formation of a union that another provision protects its perpetuation, which brings us to yet another obstacle to Orts’ proposal — Article V of the Constitution.

In Article V, the Founders identified the only provision in the Constitution which is perpetually exempted from Amendment: “… no state, without its consent, shall be deprived of its equal suffrage (voting power) in the Senate.” That statement unambiguously protects the Great Compromise from being undone by the amendment process, or any other process. Orts’ proposal defies the explicit language of Article V. Only the most radical “living Constitution” proponent could manage to misconstrue that language.

Orts’ proposal would deny the political wisdom of the Founders and the reasons for the Great Compromise, and undo one of the bulwarks against the tyranny of the majority — equal representation of the states in the Senate.

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