In Defense of the ‘Undemocratic’ Senate
December 27 | Posted by mrossol | American Thought, Democrat Party, US ConstitutionWSJ 21/27/2021
Now that Sen. Joe Manchin has effectively killed the Build Back Better Act, there are renewed complaints on the left about the U.S. Senate. The problem with the Senate, we are told, is that it is undemocratic. As of the 2020 census, Mr. Manchin had 1.8 million constituents while California Sens. Dianne Feinstein and Alex Padilla had 39.5 million. Yet Mr. Manchin’s vote counts the same as Ms. Feinstein’s and Mr. Padilla’s. That means a West Virginia resident has 22 times the influence in the Senate as a Californian. For Wyoming, the disparity is 68 times.
The proposed solution to this alleged affront to democracy is proportional representation in the Senate, like in the House. Assuming that each state would have at least one senator, proportional representation, strictly implemented, would give California 68 senators, and the Senate would consist of 575 members. A Senate of such unwieldy size might be made smaller by compromising on proportionality and allowing for one senator for every, say, one million or fewer residents. But even then the Senate would number roughly 330 members, and Wyoming residents would still have nearly double the influence of Californians.
The practical challenges of establishing proportional representation in the Senate pale in relation to the political and governance hazards of making the Senate a mere reflection of the House. Equal state representation in the Senate with representation by population in the House was the Great Compromise that made the Constitution possible. True, continuance of the slave trade and the counting of (nonvoting) slaves as three-fifths of a person for the purpose of establishing apportioning House seats were also compromises that made the Constitution possible. But without the compromise on representation in the Senate, there is every likelihood the Constitutional Convention would have failed and a Southern confederacy would have emerged soon thereafter—a confederacy in which, lacking the influence of northern abolitionists, slavery could have survived for decades longer, maybe into the 20th century.
History aside, the “undemocratic” nature of the Senate is a central feature of a constitution designed to respect popular sovereignty while constraining the hazard of majority tyranny—hazards we now witness with dramatic policy shifts as control of government swings from one party to the other. At few times in U.S. history has the wisdom of the Great Compromise been more evident. Gridlock and shifting party control in the Senate might be dismissed as a product of undemocratic representation, but the House is also narrowly divided and likely to shift to a modest Republican majority in 2022. Yet both parties claim that the narrowest electoral victories mandate uncompromising implementation of highly partisan agendas.
Although the Framers aspired to a virtuous citizenry in which humility would accompany electoral victory, they understood that majorities would have little regard for the losers. Along with federalism, separation of powers, judicial review and soon thereafter the Bill of Rights, a bicameral legislature in which both the states and the people are represented was designed to be a safeguard against the hazards of simple majority rule.
Many Democrats have responded to Mr. Manchin’s intransigence with accusations of disloyalty to the current administration and to the Democratic Party. But Mr. Manchin isn’t an agent of the White House or the party with which he has chosen to associate. He is a representative of the state of West Virginia. Although the 17th Amendment providing for popular election of senators made senators more dependent on popular sentiment, they retain democratic legitimacy and the responsibility to speak as representatives of their separate states. Too many senators of both parties have succumbed to demands for party loyalty at the expense of their states’ interests, but election results and polling leave no doubt that Mr. Manchin is representing the state he was elected to represent.
When Sen. John McCain voted against repeal of the Affordable Care Act in 2017, Democrats were full of praise for his willingness to place principle above party. It is disappointing, but not surprising, to see those same Democrats condemn Mr. Manchin for doing the same thing. The ease with which both parties swing from praise to condemnation of their fellow senators confirms that the Framers got it right in making the Senate a constraint on majority rule.
Mr. Huffman is a professor and dean emeritus at Lewis & Clark Law School.
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