Our Undemocratic Constitution

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.

Tim Kowal

Tim Kowal is a husband, father, and attorney in Orange County, California, Vice President of the Orange County Federalist Society, commissioner on the OC Human Relations Commission, and Treasurer of Huntington Beach Tomorrow. The views expressed on this blog are his own. You can follow this blog via RSS, Facebook, or Twitter. Email is welcome at timkowal at gmail.com.


  1. I really have no problem with the constitution being non-democratic (at term I prefer to “undemocratic”), and I have no problem with veto points against the will of the simple majority. I also don’t dispute the claim that the power exercised by the federal government goes far beyond what was envisioned by the constitutional compromises of the 1780s and 1790s.*

    Still, I think it would be wise to reconsider whether there be a different way to arrange things. I’m not talking wholesale revolution, just maybe a reform of how the Senate is constituted to take into account new realities. It seems to me the chief threat to the constitutional order is not so much an overambitious Congress and Senate, but an imperial executive, Obama being no exception.

    That’s why I would want to reform the Senate to change its functions to executive oversight and to merely a consultative role for legislation. The reformed Senate would have a suspensory veto over all legislation enacted by the House, would be able to remove cabinet-level and some sub-cabinet level officers by a vote of no confidence (maybe by a supermajority) and be able to veto executive orders (again, perhaps by a supermajority).

    (I realize I shill this idea occasionally on the blogs I visit. But I think it is reasonable and something to be considered.)

    *I am, however, skeptical of ascribing intention to “the founders”: it’s hard to know what they would have liked the US to become under such-and-such circumstance.

  2. I’d have less of a problem with the Senate being the Senate if we could go back to 1910 levels of representation in the House.

  3. It’s funny how the people who like the Senate being unrepresentative are those who gain by it, and vice versa. Just like the people who thought that filibustering judicial nominations was unconstitutional in 2003, and insisted that every such nominee deserves an up-and-down vote in 2007, but were happy with the system of holds and refusals to schedule confirmation hearings in 1995 and 2011.

  4. “It’s funny how the people who like the Senate being unrepresentative are those who gain by it, and vice versa. ”

    …so doesn’t this go to show that the Founders’ idea regarding the Senate was bang on and should be kept in perpetuity?

    I mean, you’re saying here that highly-populated states want the Senate to be proportional so they can get whatever they want. Which is exactly what the Founders said they didn’t want.

    • The motivation behind the construct was to ensure that urban states didn’t browbeat rural states.

      That, in and of itself, is a good idea. The resulting mechanism, however, has given us a situation where 21 states can plausibly deny the other 29 just about anything they want to do. Yay, fillibuster.

      • You’re saying that with the wrong emphasis. Try it like this:

        The resulting mechanism has given us a situation where 21 states can plausibly deny the other 29 just about anything they want to do! Yay! Fillibuster!

  5. I mean, you’re saying here that highly-populated states want the Senate to be proportional so they can get whatever they want.

    No, I’m saying Republicans like it because small states tend to vote Republican. The same way that wanting to repeal the 17th Amendment is a Republican mantra, because GOP legislatures would elect GOP senators more reliably than the voters do. And the same way that concerns like this disappear when there’s a Democratic president and a Republican speaker.

    • Mike,

      If you’re willing to take it at face value, I’ll represent that I’m much more ideological than political, so I would favor following the Constitutional design irrespective of whether it helped Ds or Rs more. Incidentally, it seems like a moot point for Californians like me.

      • I’m not really sure that having another 30 or so members of the House or whatever the current number would be (if we went back to 1 per 200K) would offset the fact that we only have 2 senators compared to the long laundry list of states that combined have fewer total population than we do, but 2*N senators, combined.

        On the other hand, a stronger state on the state vs federal power meter would be nice for CA.

        • That would give us 1535ish Congresscritters.

          Imagine: Gerrymandering a thing of the past.

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