The Senate Abolitionists

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This article was conceived and mostly written prior to recent calls
by Eric Foner, Michael Dukakis, and others to abolish the Electoral
College. The nationalist underpinning of this prescription harbingers
application to the institution discussed herein.

Justice John Marshall wrote in McCullouch v. Maryland, "No
political dreamer was ever wild enough to think of breaking down
the lines which separate the States, and of compounding the American
people into one common mass." That's coming from the judicial
nationalist of all time. The inference from this is that Americans
exist not as a singular polity but as members of discrete and diverse
polities, i.e., states. To give a contemporary example, proponents
of the European Union can speak of a "European people,"
but that monolithic phrase is meaningless without accounting for
the diverse sovereigns (thus far) that constitute Europe. In a macro
context, the United Nations aspires to forms of global homogeneity,
but even its charter recognizes the sovereign equality of its members.

all the legion usurpations of states' rights, the members of the
American union still display significant diversity. The laws of
the fifty states are hardly uniform; Louisiana in fact maintains
a civil law system unique among its common law peers. Tax policies
vary from state to state, some states have capital punishment, others
do not, and so on. The differences reflect the design.

Constitution of the United States is structured around the character
of its members – a redundant description if not for our unitary
age. Leaving aside significant amendments that underscore states'
rights, the organic architecture reveals what's operative. A salient
component in this scheme is the United States Senate, which is under
a sub silentio siege.

cannot be over-emphasized that the United States Senate is an anti-nationalistic
and anti-majoritarian institution. (Well, it is conducive to a majority,
but it's more Calhounian than majoritarian.) The Senate conspicuously
clashes with the notion of a uniform American people. If we're all
one people, why do the not even one million Americans in Delaware
receive the same representation as the over fifteen million Americans
in Florida? Why should one section of the American people wield
disproportionate power in the upper legislative house that determines,
among other things, which judges are confirmed and which treaties
are ratified? Moreover, this arrangement appears immutable since
Article V provides that "no State, without its Consent, shall
be deprived of its equal Suffrage in the Senate."

nationalists are outraged by this demographic power gulf and logically
call for foundational change in American government, namely the
abolition of equal state suffrage in the Senate. This sentiment
isn't endemic to a minor few. Consider the following:

anyone today actually propose giving the Providence metropolitan
area the same representation in one branch of the legislature
as half the West Coast?" (Daniel A. Farber, Henry J. Fletcher
Professor of Law at the University of Minnesota)

aspect of Article V is the provision u2018that no State, without
its consent, shall be deprived of its equal suffrage in the
Senate.' For practical purposes, this makes it impossible to
change representation in the Senate to a population basis. The
power the present system of representation gives to states with
small populations increasingly appears to be an anachronism."
(Stephen M. Griffin, Associate Professor of Law, Tulane University)

aristocratic Senate was never meant to be particularly representative
of the population at large. As the nation became more and more
democratic, however, the Senate became an ever more glaring
anomaly. The Seventeenth Amendment [providing for direct election
of senators] repaired a small part of the problem, but the more
egregious malapportionment remains." (Suzanna Sherry, Earl
R. Larson Professor of Civil Rights and Civil Liberties Law,
University of Minnesota)

my opinion, the One Senator, One Vote Clauses are the most problematic
ones remaining in the Constitution…I hypothesize that the One
Senator, One Vote Clauses have negative but not disastrous effects
on energetic government, but neither do they have a single tangible
benefit." (William N. Eskridge, Jr., John A. Garver Professor
of Jurisprudence, Yale Law School)

quotations appear in Constitutional
Stupidities, Constitutional Tragedies
, eds. William N. Eskridge,
Jr. and Sanford Levinson.)

appears to be an anachronism," "egregious malapportionment,"
without "a single tangible benefit" – not too much
ambiguity here. I dare say Farber, Griffin, Sherry, and Eskridge
reflect an institutional consensus, if not a dynamic. (Book-length
extensions of their viewpoint are Daniel Lazare's The
Frozen Republic: How the Constitution Is Paralyzing Democray

and Frances E. Lee and Bruce I. Oppenheimer's Sizing
Up the Senate: The Unequal Consequences of Equal Representation

to the Senate doesn't end at the faculty lounge. Michael Lind describes
it as "the most defective branch of American government"
in The
Next American Nation: The New Nationalism and the Fourth American
; Christopher Hitchens finds it rebarbative in
his "Minority Report" and elsewhere. (See "Yes, We're
the Great Pretenders," The Nation, December 18, 2000 and No
One Left to Lie To: The Values of the Worst Family

appreciate the derivation of the Senate, we would do well to examine
contemporaneous thought. St. George Tucker is a key figure. This
eminent Virginian was a jurist, professor, and poet. Among the issues
of his day Tucker addressed were freedom of conscience, slavery,
and the importance of the common law. He also addressed the significance
of the Senate:

secure an equal representation of the interests of the individuals
inhabiting this extensive country, united in one political bond,
as to their correspondence and intercourse with the other nations
of the globe, the house of representatives was constituted upon
the principles of equality and reciprocity…But although the
interests of the individuals might be common in many respects,
throughout the United States, yet the territorial, as well as
political division, constitution and laws of the several states,
created or manifested a contrariety of interests between them,
which all were perhaps equally tenacious of maintaining unimpaired."

illustrate matters, Tucker compared the relative size and power
of Virginia and Delaware:

territorial extent of Virginia being at least one hundred times
as great as that of Delaware, and her representation in the
proportion of nineteen to one, at present; the interest of the
latter could never stand in competition with the former, if
the whole legislature were composed of a single house constituted
as the house of representatives is: but in the senate, Delaware,
as a state; has an equal share in council with Virginia. Her
separate interests are there put upon the same footing, with
those of the largest states in the union, nor can she be oppressed,
but in such a case as would render any other state liable to
the same fate. This appears to me to be a wise and effectual

quotations are from Tucker's View
of the Constitution of the United States with Selected Writings
featuring an excellent foreword by Clyde Wilson.)

Virginian James Madison (who as president appointed Tucker district
judge of their state) expressed a similar sentiment in Federalist
No. 62:

indeed it be right, that among a people thoroughly incorporated
into one nation, every district ought to have a PROPORTIONAL
share in the government, and that among independent and sovereign
States, bound together by a simple league, the parties, however
unequal in size, ought to have an EQUAL share in the common
councils, it does not appear to be without some reason that
in a compound republic, partaking both of the national and federal
character, the government ought to be founded on a mixture of
the principles of proportional and equal representation…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." (It should be noted that
Madison's Virginia Plan proposed the very consolidation deemed
improper here. He also argued against equal state suffrage during
the Constitutional Convention.)

message is clear: States count and that's why there's a Senate.
The colonies declared their independence in 1776 as "Free and
Independent States" and fought a war – not a protracted
debate, a war – to secure that autonomous status. The Senate
is no vapid institution but an embodiment of the revolutionary struggle
and sacrifice to extricate from tyranny. When perceived in this
framework, efforts to metamorphose the Senate take on a whole new

earlier described the Senate "under a sub silentio siege."
I use that legalese because 1) It points to the institutional nature
of the siege, 2) One of its definitions, "without notice being
taken," captures the prosecution of the siege.

an important Supreme Court case in this vein, U.S. Term Limits,
Inc. v. Thornton (1995). By a 5-4 vote, the Court nullified
an amendment to the Arkansas Constitution that term limited its
federal representatives and senators. That's already suspect, but
Justice John Paul Stevens's majority opinion goes beyond the pale
in asserting that "Members of Congress are chosen by separate
constituencies, but…they become, when elected, servants of the people
of the United States. They are not merely delegates appointed by
separate, sovereign States; they occupy offices that are integral
and essential components of a single National Government."

Clarence Thomas's dissent took Stevens to the woodshed for a deserved
spanking. "The ultimate source of the Constitution's authority,"
Thomas observes, "is the consent of the people of each individual
State, not the consent of the undifferentiated people of the Nation
as a whole." From this sound foundation, he continues:

Constitution does not call for Members of Congress to be elected
by the undifferentiated national citizenry; indeed, it does not
recognize any mechanism at all (such as a national referendum)
for action by the undifferentiated people of the Nation as a whole…Even
at the level of national politics, then, there always remains
a meaningful distinction between someone who is a citizen of the
United States and of Georgia and someone who is a citizen of the
United States and of Massachusetts. The Georgia citizen who is
unaware of this distinction will have it pointed out to him as
soon as he tries to vote in a Massachusetts congressional election."

we lose perspective, Thomas's lucidity didn't prevail. He wrote
in conclusion, "The majority's opinion may not go so far, although
it does not itself suggest any principled stopping point."
It is this potential for carte blanche that should prompt those
who prize the rule of law to contemplate what Murray Rothbard called
the ethics of liberty – especially when the carte blanche is
directed to an institution so crucial as the Senate. (The present
case may be more aptly described as the practice rather than the
potential of carte blanche.) Under the victorious invalidity of
Stevens, all sorts of badness may await the Senate. An anti-nationalistic
Senate and his notion of consolidated representation can't jibe.
It's like saying Captain Ahab is a sedate seaman.

Morley noted that "There is, of course, nothing haphazard either
about the federal structure of the United States, or about the careful
balance of powers built into that structure." He further observed
how the American union was one "in which it would be extremely
difficult to establish a nationwide monopoly of power of any kind."
A cornerstone of that intentional, federal structure faces submergence
by monopolistic currents indifferent to historically grounded equilibriums.
States exert a preclusive effect against consolidation and must
be gutted: That is the sum and substance of the nationalist temperament.

3, 2001

Kantor lives in Boynton Beach, Florida.

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