The Path to Give California 12 Senators, and Vermont Just One
AGENDA 21 RADIO
Eric W. Orts
Professor at the Wharton School of the University of Pennsylvania
Read: The people v. the U.S. Senate
In the new allocation, the total number of senators would be 110. The total is more than 100 because 10 of the smallest states have much less than 0.5/100 of the U.S. population but are still entitled to one senator each.
The obvious reply is, “This is impossible! The Constitution plainly says that each state gets two senators. There’s even a provision in the Constitution that says this rule cannot be amended.” Indeed, Article V, in describing the amendment process, stipulates that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”
This seems like a showstopper, and some scholars say it’s “unthinkable” that the one-state, two-senators rule can ever be changed. But, look, when conservative lawyers first argued that the Affordable Care Act violated the Commerce Clause, that seemed unthinkable, too. Our Constitution is more malleable than many imagine.
First, 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.
Second, the states, 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. The Senate Reform Act would simply shift seats according to population. No state or its citizens would lose the franchise
Note that even states that did not ratify the voting-rights amendments have, functionally, consented to them, and thus also to the constitutional logic supporting a Senate Reform Act. As Justice Clarence Thomas explained in 1995, “The people of each State obviously did trust their fate to the people of the several States when they consented to the Constitution; not only did they empower the governmental institutions of the United States, but they also agreed to be bound by constitutional amendments that they themselves refused to ratify.”
Remember, too, that the Constitution is a complex framework document that has evolved over the course of more than two centuries. The Civil War inaugurated a century of ever-increasing recognition of voting rights through the aforementioned amendments, which created a new constitutional principle that “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State” on specific grounds of race, color, sex, or age. All of these amendments include exactly the same enforcement provision as well: “Congress shall have the power to enforce this [amendment] by appropriate legislation.”
Read: The electoral college conundrum
Race and what W. E. B. Du Bois called “the color line” are crucially at issue here because 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. For example, in California, 38 percent of citizens are white. In Texas, that figure is 43 percent. Compare the two smallest states: Vermont is 94 percent white, and Wyoming is 86 percent white. A comprehensive empirical review comparing the national population of whites, blacks, Latinos, and Asians with the median representation in each state found that “whites are the only group that Senate apportionment advantages.” Other, statistically smaller inequalities are present with respect to sex, age, and other constitutionally protected categories, such as sexual orientation.
Constitutional originalists will surely argue that the Founders meant “equal suffrage” in Article V to mean one state, two senators, now and forever. But the Founders could never have imagined the immense expansion of the United States in terms of territory, population, and diversity of its citizens.
Remember also that even if one takes original intent as definitive, the intentions informing Article V at the founding must be balanced against those behind the voting-rights amendments adopted a century or more later. These amendments clearly and repeatedly authorize Congress to protect “the right of citizens of the United States to vote” against any abridgement “by the United States.” The plain dictionary meaning of abridge is to “reduce the scope” of a right or to “shorten the extent” of it. Unequal Senate apportionment abridges the voting rights of citizens in large states, including nonwhite citizens in those states. This kind of inequality is within the delegated power of Congress to address.
Read: Voter suppression is warping democracy
Again, some originalists will stand against this argument, saying no state can lose a senator (old-style “equal suffrage”) without its “consent.” Again, this argument fails because states have already given their “consent” in the voting-rights amendments that give Congress the power—even the duty—to protect U.S. citizens against the denial or abridgment of equal voting rights.
An additional argument supporting the plausibility of a Senate Reform Act is that the Supreme Court might see fit to stay out of the mix. The unelected, nonrepresentative justices might revive an old but good doctrine against overturning a federal statute unless Congress makes a “clear mistake” about its constitutionality. Or the Court might defer to Congress on this issue by invoking the “political question” doctrine, which requires treading lightly in areas where a democratically elected branch has been explicitly granted constitutional power.
Several other structural benefits would follow from a Senate Reform Act. It would automatically mitigate the unrepresentativeness of the Electoral College, which allocates presidential electors to each state equal to the number of its congressional delegation—that is, the total number of representatives and senators. (I should point out also that if this reapportionment would have, hypothetically, occurred prior to the most recent presidential election, the result would not have changed. Red gains in Texas and Florida would have offset a blue gain in California, and blue losses in New England would have balanced red losses in lightly populated western states.)
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