Note: 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.
Chief 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.
For 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.
The 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.
It 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."
Consistent 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:
"Would 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)
"A…questionable 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)
"The 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)
"In 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)
(These quotations appear in Constitutional Stupidities, Constitutional Tragedies, eds. William N. Eskridge, Jr. and Sanford Levinson.)
"Increasingly 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.)
Opposition 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 Revolution; 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.)
To 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:
"To 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."
To illustrate matters, Tucker compared the relative size and power of Virginia and Delaware:
"The 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 balance."
(These quotations are from Tucker's View of the Constitution of the United States with Selected Writings, featuring an excellent foreword by Clyde Wilson.)
Fellow Virginian James Madison (who as president appointed Tucker district judge of their state) expressed a similar sentiment in Federalist No. 62:
"If 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.)
The 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 meaning.
I 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.
There's 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."
Justice 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:
"[T]he 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."
Before 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.
Felix 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.
January 3, 2001
Myles Kantor lives in Boynton Beach, Florida.