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The House, the Senate and the historical reasons for (un)equal representation

REUTERS/Zach Gibson
Article V of the Constitution dictates that, “No State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”

Did you know there is a provision in the Constitution that cannot be amended?

Yes, I’m putting on my Constitution nerd hat again today. In part because it gives me the opportunity to talk about something that has almost nothing to do with you-know who. And while my story dates from 1787, it connects with a Washington Post story published last week: “In about 20 years, half the population will live in eight states.” The piece, written by staffer Phillip Bump, is based on projections from current trends, of course, but his conclusion is totally believable.

The collective population of the eight most populous states — California, Texas, New York, Florida, Illinois, Pennsylvania, Ohio and Michigan — is growing significantly faster than the collective population of the smaller 42. (Minnesota ranks 21 in population, just below Wisconsin and above Colorado.)

After each decennial census, the map of U.S. House districts is redrawn and seats are shifted to states that gained the most population. That means that, leaving aside the gerrymandering issue, each state’s representation in the U.S. House will roughly reflect its share of population, so the delegations of the Big Eight states to the lower house of Congress will be roughly equal to the delegations of the other 42.

This is not the case in the U.S. Senate, where the representation of all states is fixed at two Senators apiece — an appropriation based on a Constitutional provision that can not ever be amended. And when I say “not ever,” I pretty much mean “forever.” That’s because Article V of the Constitution, which already establishes that an amendment requires a two-thirds vote of both Houses of Congress and ratification by three-fourths of the states, also dictates  that, “No State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”

So even if 49 states agreed to move the Senate in the direction of an apportionment reflecting population, any one state could veto the move forever. (Maybe you can think of something that would convince all the smaller states to agree to give up their equal representation in the Senate, but I can’t.) So, in short, the guaranteed, perpetual equal representation of all states in the Senate must be considered a permanent feature of our system.

The arguments against the two-senator rule are fairly obvious. California, the most populous state as of the 2010 census, has 66 times the population of Wyoming, the least populous. And that difference is (almost) reflected in in California’s current 53 seats in the U.S. House, compared to Wyoming’s one seat (currently held by Dick Cheney’s daughter Liz Cheney).

But while California’s higher population is reflected in the House, nothing becomes law unless it also passes the Senate; which means the 25 states with the smallest population can block anything, despite the fact that taken together they contain less than a quarter of the whole population.

Just to torture the numbers slightly, if the senators from the 8 most populous states — representing 50 percent of the population in 20 years — favored something, but senators from the 42 smaller states opposed it, it would fail 84-16.

Things don’t usually work that way, of course. Currently, for example, the two states with the biggest population, California and Texas, rarely agree politically. In fact, Texas is the only real Republican stronghold on the list of the Big Eight (after California and Texas, they are all blue or purple states). So, at present, the equality of all states in the Senate is more beneficial to red America than blue.

That said—and in the interest of historical accuracy—the arrangement is certainly not a Republican plot. The Republican Party didn’t even exist before the 1850s. The real reason for the equality of power in the Senate was surely tied to the necessity of getting the Constitution ratified.

Under the Articles of Confederation (the loose national governing doctrine that existed before the Constitution) all states were equal on all matters. At the time of the Constitutional Convention, the population difference between the biggest state (Virginia) and the smallest (Georgia) was only about 10-to-1, compared to 69-to-1 today.

To preserve and strengthen the union, the framers needed every state to join. It’s likely that the proposal (and by “proposal” I mean the draft of the Constitution between the convention and ratification by all 13 then-existing states) would have failed if it had been seen as too advantageous to either the big or the small states. The method of awarding seats in Congress – favoring big states in the House but small states in the Senate – reeks of this political problem, or, to put it more generously, it was the solution to this problem.

When it came to appeasing the small states, the drafters had to go one step further to ensure them that they would not be overwhelmed by the big states. It’s where this post started. The framers agreed to make the guarantee of equal power in the Senate beyond even the reach of the amendment process.

The small states were giving up a lot to go along with the Constitution, and they simply had to be reassured that the new, much more powerful national government wouldn’t become the instrument by which the smalls would be dominated by the bigs.

To modern eyes, this reassurance to the small states looks pretty undemocratic. Why should the weight of the 42 smaller states be so very, very much greater in the Senate than the weight of the eight biggest? The answer is (or was): To get the deal done.

 

 

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Comments (22)

It depends how you define "fair"

Each State having two Senator is not necessarily "fair", but "fair" isn't always the goal of a democratic republic.

I wish that the Senator were elected by each State's legislator. This was the original design.

It Depends on How You Define "Democratic Republic"

"Each State having two Senator is not necessarily "fair", but "fair" isn't always the goal of a democratic republic." Actually, it kind of is. If we believe it is fair for governments to exist with the consent of the governed, we are talking about "fairness." Fairness here means that the expressed will of the majority will, with some exceptions, control. As my Mother liked to point out, just because it's fair doesn't mean everyone gets what they want.

"I wish that the Senator were elected by each State's legislator." Anytime a change like that is made, one has to ask why. The answer here is that Senate seats used to be bought fairly openly from state legislatures. The rank corruption made the Senate a joke to a nation with any pretense towards representative democracy.

"This was the original design." Leaving aside the obvious point that the original design of the Constitution was a hegemony of white males, the design of the United States changed dramatically after the Civil War. The rights and privileges of citizens became a federal matter and were taken out of the control of the states. Individual rights became a matter of Americanism, not a matter of where one happened to live.
Think of that period as a second founding.

no...

"Fairness here means that the expressed will of the majority will, with some exceptions, control."

One of the goals of the constitution was not necessarily to promote the views of the majority, but to protect the views of the minority from the potential "Mob rule" of pure democracy.

The same can be said of the "genius' of the electoral college.

Yes . . .

The constitutional check protecting the rights of the minority is what I meant by "with some exceptions." This does not mean that the minority rules, or that minority viewpoints are an absolute check on the majority.

A minority of citizens holds the view that the Sixteenth Amendment is invalid because they think Ohio was not validly admitted to the Union, but they still have to pay their taxes.

The "genius' of the electoral college.

was that it was a compromise necessary to keep the Virginians (and other Southerners) who were already a minority within the Union. Otherwise the States would not have become United.
This tension remained for three quarters of a century until it was (more or less) resolved by the Civil War.
Of course, some Southruners are still fighting it.

It is far more fair than you suggest

I'm ok with each of the 50 states (or more, if we decide to add any) each having 2 votes.

I'm NOT ok with all of the blatant corruption, manipulation, jockeying for position, game playing and aligning oneself with vested interest$ that is being done on a regular basis in politics these days.

I am also no longer ok with our Electoral system, which no longer reflects our changing demographics and so skews things, as has been painfully obvious in recent elections. The red states, which have smaller populations now because about 85% of the population lives in large cities in blue states now, are getting more slots. THAT is NOT fair!

We need to stay solidly with the 'one person, one vote' system if we wish to continue to operate as a democracy.

We need to do everything possible to prevent anyone--foreign or national--to subvert our voting systems &/or 'influence' our system in any way, shape or form. Insidious things have occurred and will continue to if we don't identify them and effectively STOP THEM. We have the largest criminal investigation ever well under way right now. Yet many on the R continue to try to obfuscate and obstruct and be complicit and cover for our Russian allegiant 'president'. We have REPs in Congress in full power who obviously are choosing to NOT address these matters because they don't want the truth to come out or for themselves to lose power.....

These are the things that destroy democracy and allow twisted psychotic dictators to emerge.

Big vs. Small

And, depending upon one's point of view, therein lies the biggest drawback, or the biggest advantage, to compromise. When Wyoming can cancel California it's not very close to accurate to refer to our system – at least at the national level – as "democratic." On the other hand, if you live in Wyoming, there's little danger, again, at the national level, of the "tyranny of the majority." Those eight most populous states likely have the highest percentage of urbanites, as well, and the "provision that can't be amended away" protects the interests of rural dwellers, while simultaneously denying any semblance of equal representation to urban dwellers. The Framers were trying to look ahead, but foresight, at least of the long-term variety, isn't something humans are very good at. I doubt they envisioned a nation of 300+ million people, when our population at the time the Constitution was adopted was a bit less than 4 million, nor did those sophisticated rural dwellers of the late 1700s foresee a change from nearly 95% of the population living in rural areas, where the vast majority (90%) of the nation's population were farmers, to a population that is now 81% urban, with the vast majority of us living in urban and suburban environments, and a tiny percentage (2%) being farmers.

Compromise typically involves giving up something of value in order to receive something of value, and that rule of thumb certainly seems to apply here.

Double Whammy

The problem is not just representation in the Senate -- that sort of arrangement is not unique. Many democracies have bicameral legislatures. While the apportionment itself cannot be amended, I suspect that the Senate's powers can be.
Where the double whammy comes in is the Electoral College, which IS unique in democracies.
The Constitution does mention Electors, but appears to have the functioning only on the level of the individual states. The EC is what should be amended out of existence.

And Ron -- states have more than one legislator.

Talk about unfairness!

What truly is unfair is that the top one percent of all U.S. taxpayers (taxpayers with AGIs of $465,626 and above) earned 20.58 percent of all AGI in 2014, but paid 39.48 percent of all federal income taxes. When that gets changed, perhaps we can worry about blue states not having enough senators.

It's called the progressive income tax

It's been part of our system, dating back to the Revenue Act of 1862.
Britain used it at the end of the 18th century, as did the Romans 2000 years ago.
I agree that our system is probably not as progressive as it ought to be.

And note that the tax code specifies that everyone pays the same tax on the same income.
The progression kicks in on marginal income. It's only income above certain levels that is subject to a higher rate.

Unfairness

When right wing radicals talk about the unfairness of the tax system you always use AGI and federal income tax.

Would you just one talk about gross income (capital gains, dividends, tax sheltered, etc) and all federal (not to mention state and local) taxes. Most lower and middle income people pay more in payroll taxes than they do in income taxes. Trump and his billionaire friends certainly don't. But you don't count that, do you? Trump and his billionaire friends get to protect much of their income from taxes, but working people can't do that.

You are lying with statistics, just like your president.

It's Called Deflection

"When that gets changed, perhaps we can worry about blue states not having enough senators.."

There is no way on earth that makes any sense. The Founders did many things wrong, but making the United States an oligarchy was not one of them.

Hmmm...

So you're telling us that the top 1% enjoyed a 2000% higher income than the rest of the population and our historic progressive tax system asked them to pay only a 100% premium over the remaining taxpayers.

And, let's not forget the majority of those 1 percenters already live in blue states who, we all know, pay in more in federal taxes than they get back. As opposed to taker red states that enjoy more federal dollars coming in than they pay out.

And yet

And yet until the recent tax bills, the citizens in Blue States got to write off their State taxes instead of paying their full share of the national bill.

I thought that was unfair because it was usually the citizens from the Blue States who demand that the Feds provide the programs, services, funding etc. And yet they paid for less of the bill.

Except that

it's the Red States that get more Federal money than they contribute, while states like Minnesota send more money to Washington than they get back.
Blue States may as a group advocate more Federal spending, but there are proportionally more people (poor, sick, handicapped in various ways) eligible for that money in Red States.
Get your numbers straight.

But red states benefit

But red states benefit disproportionately from those programs.

In terms of fairness, it's hard to argue, I think, that someone else has benefited unfairly from a tax break, because I have voluntarily chosen not to take advantage of it myself. It's like with a charitable deduction. People who make them get a tax deduction where people who don't make them, don't. Is that really unfair? And financially, who is ahead, the contributor who only receives gets a portion of the money he contributed in the form of reduced taxes, or the person who didn't contribute who pockets all the money that could have otherwise gone to charity?

the senate

The reason each state has two senators is that such an arrangement gave southern states the de facto power to prevent the legislative abolition of slavery. The fact that under our system of government was unable to deal effectively with slavery was one of the principal factors in the causation of the civil war. The creation of the senate was one of the disastrous mistakes made by the framers that haunt us to this day.

Bad History

Your historical understanding of this issue needs revision. Each state has two Senators because the small states would have refused to ratify the Constitution unless they had equal representation in one house of the federal legislature (Congress). What is called the Great Compromise of 1787 resulted in the bicameral legislature, with the House apportioned by population and each state - regardless of population - given two Senators. The best history for this topic is provided in "Plain, Honest Men", written by the late Richard Beeman. Slavery had zero to do with that compromise - the largest state (slaveholding Virginia) opposed it.

Tyranny of the majority

The "tyranny of the majority" argument is often used in defense of maintaining the Electoral College system to make sure "smaller states get representation". But I've always felt that the fact that ALL states get two Senators regardless of population takes care of that argument. The smaller states are represented equally in our Senate. Get rid of the Electoral College.

Small States

Given that the least populous states are guaranteed one rep in the House, they also enjoy an out sized voice in the respect also. Wyoming has one rep for its population of 582,000; while California has one rep per 746,000 residents.

So small states get extra credit in the House, Senate, and the EC. How much protection do these snow flakes need?

Thanks Frank (Numbers)

California Population ~ 38M 1 Senator for each 19M, Wyoming 1 senator for each ~ 290,000 so who wants to talk fair? Seems the minority gets to rule the majority! Don't they call that something like repression of the majority? (Fact fullness)

Vetos and ammendments

It takes 67 votes to pass an amendment or override a veto. It is possible that the population
of 17 small states can stop the action. Perhaps the states with under 10% of the population
can over-rule the rest. However, the small New England states and the prairie and mountain states may never get together on anything.