SENATE DEMOCRACY: OUR LOCKEAN PARADOX AND HOW TO SOLVE IT Eric W. Orts Forthcoming in American University Law Review, vol. 68 (2019) Please cite to published version when available. Contact information: [email protected] cell: 215 939 2823 2 SENATE DEMOCRACY [Draft: May 13, 2019] Senate Democracy: Our Lockean Paradox and How to Solve It Eric W. Orts* Abstract The United States Senate is radically unrepresentative. American citizens in populous states such as California, Texas, Florida, and New York have much less voting weight than citizens in lightly populated states. Senate representation is also significantly biased in terms of race, ethnicity, and color, as well as other constitutionally protected characteristics such as age and sex. Effective reform of Senate, however, presents a Lockean paradox because amendment of the Senate’s representational structure is prohibited by Article V of the Constitution, and the amendment of Article V is itself blocked by impossible supermajority hurdles. This Article proposes a Senate Reform Act to solve this paradox. The reform would adjust the number of senators allocated to each state by relative population. It recommends a Rule of One Hundred to determine population units by which to allocate senate seats according the official decennial census, with a minimum of one senator per state. The reform would thus respect the principle of federalism and maintain the Senate at roughly the same size. It would yield structural co-benefits such as a more representative Electoral College and an easier path to statehood for underrepresented citizens in the District of Columbia, Puerto Rico, and elsewhere. The proposed Senate Reform Act finds its constitutional authority in the Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments, collectively the voting-rights amendments. After explaining how the reform would work, this Article defends its constitutionality through traditionally recognized modes of interpretation: textual analysis, structural considerations, historical context, moral principles, and legal precedents. It concludes with an examination of political balance and feasibility. * Guardsmark Professor of Legal Studies and Business Ethics, The Wharton School, University of Pennsylvania; Executive Committee, Andrea Mitchell Center for the Study of Democracy at Penn. Thanks to Mia Wells and Kevin Thomas of Lippincott Library, John Piotrowski of Wharton Research Programming, and Tamara English for research assistance. Thanks also for comments at a presentation co-sponsored by Wharton and the Mitchell Center. For specific suggestions, I thank Mitch Berman, Vince Buccola, Peter Conti-Brown, Nico Cornell, David Dreisen, Bill Ewald, Dan Farber, Brian Feinstein, Jeff Green, Laura Gibson, Rob Hughes, Adam Jacobi, Julian Jonker, Juliet Lapidos, Seth Kreimer, Sarah Light, Phil Nichols, Keigo Obayashi, Carol Orts, Julie Orts, Diana Robertson, Matt Roth, Fred Schauer, Amy Sepinwall, Richard Shell, Alan Strudler, Harlan Wilson, and David Zaring. In addition, I thank readers of The Atlantic who responded to an early version of my ideas, and Knowledge@Wharton and the Randy Tobler Show for feedback during radio interviews. [Draft: May 13, 2019] Orts 3 Contents INTRODUCTION….…….…………………………….………………………....…5 I. OUR LOCKEAN PARADOX OF SENATE REPRESENTATION…………………….14 II. PROPOSAL FOR A SENATE REFORM ACT……………………………………..17 III. CONSTITUTIONALITY.…….………………………..………………..………21 A. Deference to Congress.……..…………………,….….……......21 B. The One State, Two Senators Rule……..……….….……….….23 C. Textual Analysis……………….………………,….….……..... 25 1. The Voting-Rights Amendments……………………………25 2. Article V……………………………………………………31 3. Intratextual Conflict and “Time’s Arrow”…….………..….34 D. Structural Considerations……………..………….……….…..35 1. Equal Voting Rights of “We the People”….…………………36 2. Preservation of Federalism…………………….…………….36 3. Preservation of Senate Functions………………..……….….38 4. Removal of Unfair Bargaining Advantages of Small States....38 5. Reduction of Risks of Secession and National Instability……38 6. Comparable Size of the Senate………………………………40 7. New States………………….….…………………………….41 8. A More Representative Electoral College.…………….……43 E. Historical Context…….…….……..……………….…………...45 F. Moral Principles.……………………………………………….56 G. Legal Doctrine……………….…………………………………60 IV. POLITICAL BALANCE AND FEASIBILITY…………………………...…..…65 CONCLUSION: MAKE THE SENATE A DEMOCRACY AGAIN…………………...69 4 SENATE DEMOCRACY [Draft: May 13, 2019] [I]t often comes to pass that in governments, where part of the legislative consists of representatives chosen by the people, that in tract of time this representation becomes very unequal and disproportionate to the reasons it was at first established. This strangers stand amazed at, and every one must confess needs a remedy; though most think it hard to find one, because the constitution of the legislative being the original and supreme act of the society, antecedent to all positive laws in it, and depending wholly on the people, no inferior power can alter it. Whatsoever cannot but be acknowledged to be of advantage to the society and people in general, upon just and lasting measures, will always, when done, justify itself; and whenever the people shall choose their representatives upon just and undeniably equal measures, suitable to the original frame of government, it cannot be doubted to be the will and act of the society, whoever permitted or caused them so to do. - John Locke1 [L]aws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. - Thomas Jefferson2 Heaven lends me ability, to use my voice, my pen, or my vote, to advocate the . emancipation of my entire race. 3 - Frederick Douglass 1 JOHN LOCKE, THE SECOND TREATISE OF GOVERNMENT §§ 157-58, at 89-91 (Thomas P. Peardon ed. 1952) (1764). 2 Thomas Jefferson, letter to Samuel Kercheval, July 12, 1816, https://www.monticello. org/site/jefferson/quotations-jefferson-memorial#footnote10_3esso6z. 3 FREDERICK DOUGLASS, MY BONDAGE AND MY FREEDOM 406 (1855). [Draft: May 13, 2019] Orts 5 INTRODUCTION The United States Senate has become radically unrepresentative. At the founding, the ratio of voting weight in the Senate between citizens in the smallest state of Delaware and the largest state of Virginia was around six to one or twelve to one, depending on whether slaves are counted.4 James Madison predicted that this inequality would get worse, and he was right.5 As new states were added, and as people multiplied and migrated, the ratios of voting inequality of citizens in the smallest and largest states widened. Today, the ratio of voting weight of citizens in the smallest state of Wyoming compared with those in the largest state of California has grown to sixty-seven to one.6 The disparities will only worsen because more populous states, such as California, Florida, and Texas, are growing faster than many smaller ones.7 4 MICHAEL J. KLARMAN, THE FRAMERS’ COUP: THE MAKING OF THE UNITED STATES CONSTITUTION 184 (2016) (calculating a ratio of 12.5 to one). Subtracting Virginia’s 400,000 slaves, the ratio falls to about six to one. RICHARD BEEMAN, PLAIN, HONEST MEN: THE MAKING OF THE AMERICAN CONSTITUTION 310 (2000). In the five southern states of the original thirteen, forty percent of the population was enslaved. KLARMAN, supra, at 266. 5 See FRANCES E. LEE & BRUCE I. OPPENHEIMER, SIZING UP THE SENATE: THE UNEQUAL CONSEQUENCES OF EQUAL REPRESENTATION 10 (1999). Madison along with other founders including James Wilson of Pennsylvania argued unsuccessfully for proportional representation in the Senate. See BEEMAN, supra note [4], at 8-9, 41-57, 90, 102, 105; KLARMAN, supra note [4], at 11-13, 41-43, 69-72, 127-33. See also Larry D. Kramer, Madison’s Audience, 112 HARV. L. REV. 611, 627, 654-56 (1999) (describing Madison’s plan for a strong national government with proportional representation of citizens in both houses of Congress); David Brian Robertson, Madison’s Opponents and Constitutional Design, 99 AM. POLITICAL SCI. REV. 225, 227-29 (2005) (describing Madison’s plan). The Connecticut Compromise adopted a principle of popular representation in the House of Representatives, but not in the Senate. It transmuted the one colony, one vote decision rule under the Articles of Confederation into a rule of one state, two senators. U.S. CONST. art. I, §§ 1-3. See also BEEMAN, supra note [4], at 54-56, 71, 82, 86-120, 90 144-62, 200- 25; KLARMAN, supra note [4], at 133-205. Madison “continued to feel deeply aggrieved about the compromise that had given the smaller states equal representation in the Senate” and “persisted in believing that the Connecticut Compromise was a serious blow to the fundamental principle that the new government was to be directly representative of the people of the nation and not of the states.” BEEMAN, supra note [4], at 367. He felt “vexed” that his theory of popular national representation had not been fully adopted. Kramer, supra, at 678-79. 6 See Table 1 infra at page __. See also KLARMAN, supra note [4], at 626-27 (noting how “the Senate’s malapportionment has grown significantly worse” moving from a ratio of “roughly twelve times” at the founding to “more than sixty-five times” today). 7 See, e.g., LEE & OPPENHEIMER, supra note [5], at 11. See also U.S. Census,