Jeff G. at Protein Wisdom responds to the old argument, recently repeated by Ezra Klein and Paul Sterne, that the Senate is undemocratic because it gives residents of less populous states greater relative voting power than residents of more populous states. Jeff’s response, while a bit heavy handed, is basically right: not everyone is resigned to the notion that the federal government has rendered the states obsolete. Though the Ninth and Tenth Amendments—those other symbols of the confederation of sovereigns—are seldom given voice in our courts and capitols, yet still they live! James Madison, he still speaks for them, and the Senate, too:
A government founded on principles more consonant to the wishes of the larger States, is not likely to be obtained from the smaller States. The only option, then, for the former, lies between the proposed government and a government still more objectionable. Under this alternative, the advice of prudence must be to embrace the lesser evil; and, instead of indulging a fruitless anticipation of the possible mischiefs which may ensue, to contemplate rather the advantageous consequences which may qualify the sacrifice.
In this spirit it may be remarked, that the equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty. So far the equality ought to be no less acceptable to the large than to the small States; since they are not less solicitous to guard, by every possible expedient, against an improper consolidation of the States into one simple republic.
Let, therefore, the Senate be undemocratic. It is no sin. To the contrary, the genius of the Constitution exceeds that which a session of Congress can match. It is an extension of that same genius, then, that the power of its undoing was put beyond the grasp of the simple majority’s representatives.
Besides, do we demand greater dignity than our nations on the basis of our relative superiority in population? Certainly not. Sovereignty commands a respect all its own; no inquiry is made into its census. Just so the united States. Their recognition as separate sovereigns is not impaired by the disparate birthrate of its members, or their tendencies to attract large populations to urban centers, or their tendencies toward merely moderate growth. Nothing in our intellectual history suggests this understanding of sovereignty has substantially evolved in favor of the views of Klein, Sterne, or Sanford Levinson.
As for the effect of undemocratic institutions of impeding the legislative will of the majority, it is de minimis. Or it would have been. That is, there ought to be little to complain about were the federal government limited to national defense, postal service, regulating commerce with foreign nations, Indian tribes, and among the several states, and its few other enumerated powers. Through judicial amendments to the Constitution, however, the federal government is now capable of reaching far beyond its original limits. With seemingly nothing left to keep it from doing so, statists chafe at the idea that the Senate, that undemocratic institution, can purport to deny the will of the majority. And for what? That tired old symbol of state’s rights? Why, we would have found a friendly court to tidy up that vestige were not Article 1, section 3 of such sturdy construction: “The Senate of the United States shall be composed of two Senators from each State.” These words are simply not susceptible to mischief.