Our Unconstitutional Senate

Article excerpt

In the race to the bottom that characterizes this Symposium, I cast my vote for Article I, section 3: "The Senate of the United States shall be composed of two Senators from each State...." Indeed, were this provision not unequivocally enshrined in the Constitution itself, it would undoubtedly be unconstitutional, for, as the United States Supreme Court has recognized, it is in conflict with the most basic principles of democracy underlying our Constitution and the form of government it establishes.

The Court has held that "[l]egislators represent people, not trees or acres,"(1) and that "[t]he conception of political equality from the Declaration of Independence, to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing--one person, one vote."(2) To hold otherwise would be to allow a vote to be "worth more in one district than in another" and would thus "run counter to our fundamental ideas of democratic government."(3) The Court has accordingly invalidated legislative districting schemes where the disparity in population between the largest and smallest districts entitled to the same number of legislators is as little as 1.07 to 1.(4) How, then, can a democratic nation tolerate a Senate in which the largest state has more than 65 times the population of the smallest and yet each has two Senators? Moreover, the Court has waxed eloquent on the inequity of "minority control of...legislative bodies" in "a society ostensibly grounded on representative government."(5) What, then, should we conclude about a Senate in which slightly over 17% of the population elects a majority of the members?

To answer that the provision, while indefensible, is harmless because laws require the concurrence of the House of Representatives as well, is to forget that the Senate has unique powers. On October 15, 1991, the Senate voted to confirm Clarence Thomas to the Supreme Court, by a vote of 52 to 48.(6) But the vote in the Senate conceals an exactly opposite split in the population at large. The delegations from twenty-two states split their votes, with one Senator voting in favor and one against. Fifteen states voted entirely in favor and thirteen entirely against. Tallying the populations of each state (and allocating half the population of the split-vote states to each side) yields the conclusion that the Senators voting in favor of Judge Thomas represented 48% of the population and the Senators voting against him represented 52% of the population.(7) A single change in vote by Senator D'Amato from New York would have increased the margin to 56% against, without changing the result; a single change in vote by Senator Seymour of California would have increased the margin to 58% against, again without changing the result. (If both men had switched their votes, the percentage against would have increased to 62%, and presumably Vice President Quayle would have cast the deciding vote in favor.) Justice Thomas still sits on the United States Supreme Court despite the fact that the representatives of a majority of the population voted against him. …