Don’t Abolish the Senate, Bring it Back!
With the rise of the Tea Party movement, paying lip service to the Constitution has become a sort of prerequisite for getting elected as a Republican. From reading the Constitution on the floor of the House to challenging the Constitutionality of the health-care mandate, the Constitution is seeing a fresh bit of attention this time around. Does this mean our elected officials will actually start following the Constitution? Probably not. But a little attention never hurt anyone, right?
Whether or not the infatuation with the Constitution is sincere or not, there does seem to be a newfound respect for the original intentions of the Founding Fathers. “Restore the Constitution” is, for example, a popular slogan. Drastically changing the Constitution is not something one would expect to make waves at this point in time. That’s why I was immediately curious when my eyes happened to roll over a headline titled, “Abolish the Senate: Truly Radical, Yet Wholly Sensible Reform”. Intrigued, I read the article legitimately interested in hearing this fellow’s radical (but, apparently, sensible) proposal. Unfortunately, I was disappointed. Although Jon Walker’s proposal is certainly radical, it is not sensible. He completely ignores the fundamental reason the Founding Fathers included a Senate, and his justifications for wanting to abolish it are hardly prudent. Before we get into Mr. Walker’s proposals and reasoning, I think it would be instructive to look at the history of the Senate as well as some of the reasons it was created in the first place.
Why Have a Senate, Anyways?
Although it may surprise many people, our system of government was not designed to be a democracy. The Founding Fathers were acutely aware of the problems of democratic majoritarianism and what they called “factions”- the tendency for groups of people to join together as a majority and violate the rights of the minority. Democracy always sounds like a good idea in theory, but in practice it more often than not turns into majoritarianism. It is inherently a “majority rules” sort of system, and what the majority wants is not always synonymous with what is good for the people in general. In fact, James Madison, in 1788, wrote that,
Wherever the real power in a Government lies, there is the danger of oppression. In our Governments the real power lies in the majority of the community, and the invasion of private rights is chiefly to be apprehended, not from the acts of Government contrary to the sense of its constituents, but from the acts in which the government is the mere instrument of the major number of the Constituents.
The primary fear was that a majority of the population would use the government in ways which were not conducive to the general welfare of the country. For this reason the Founding Fathers avoided implementing a fully fledged democratic system on all levels of the U.S. Government. However, having had very real experience with a monarchical system that was less than interested in protecting individual liberties, the Founders were very careful to avoid any sort of government that had sovereignty outside of the control of the people.
The result of many years of deliberations and debates (best encapsulated in The Federalist Papers and The Anti-Federalist Papers) was an ingenious- and wholly original- system of government known as federalism. Federalism, at its most basic, is a system of mixed government and various checks and balances. Ultimate sovereignty is not given to any one group, person, or institution, (even “The People”!) but dispersed throughout the system in ways to ensure the rights of the people were safeguarded.
The Founders were not in any sense undemocratic, but they wanted to ensure majoritarianism never became a problem. To this end they created a mixed government at the Federal level which allowed democracy to some extent as well as something quite different. Professor Randy Barnett writes, in his book Restoring the Lost Constitution, that rather than allow a fully fledged democracy,
they opted for a government that was capable of exercising an independent judgement that would then be “checked” in various ways by an electorate who represented the interests of the people. (pg. 37)
One of the ways this was done occurred in the division within Congress between the House and the Senate. The House was to be popularly elected by the people and reelected every two years. The Senate, on the other hand, was to be appointed via the state legislatures every six years. This may seem like an odd system. Where, one could legitimately ask, is the popular sovereignty of the people in a system such as this? But that is the point: there was no popular sovereignty in the Senate, and for good reason. While the Founders recognized that the people were to ultimately have control of the government, they also recognized that people could be shortsighted and emotional, susceptible to being swayed by the heat of the moment or mob psychology. For this reason the Founders placed a check on the House- the most democratic part of our government- by removing Senators from the direct control of the people. The longer terms also helped to create an environment where, it was hoped, politicians would worry less about elections and more about the long-term.
But perhaps the most important reason for the creation of the Senate was to give the states a say in the Federal government. Under the federalism deliberated upon by the founding generation, the states and the federal government were to be intertwined but, also, distinct. They were to have separate jurisdictions under the Constitution but, as always, the Founders included checks on each of them to ensure they remained in their properly delegated spheres of influence. The House was beholden to the people, but the Senate was to be beholden to the states. This gave the states their most significant power vis-à-vis the federal government. In the words of Fisher Ames of Massachusetts, Senators were to be “ambassadors of the states.” In other words, without the Senate one could expect the federal government to walk all over the states with virtual impunity.
The purpose of the Senate was clear: facilitate federalism and check democratic majoritarianism.
Egalitarianism is the New Totalitarianism
Now, back to Mr. Walker’s article. In good form he kicks off his article with a large error. He writes that,
The Senate’s original function is almost meaningless now[.]
Over the last 200 years, the main justification for the Senate, that it would protect the small states from the large states, has lost its importance.
This is incorrect. The main justification for the Senate was to check the Federal government and the tendency for shortsighted democracy. The decision to allow each state to have two Senators in an attempt to equalize the power of large and small states was done for equitable purposes, but was not the primary reason for creating the Senate. In the Federalist Papers no. 51, Madison writes that it was wise to
contriv[e] the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.
This was the reason Ames was so adamant that Senators were ambassadors to the states. Having to ensure that large states did not override the wishes of smaller states was a consequence of giving states some decision-making authority within the federal government.
Walker goes on to write that,
The Senate has become progressively less fair over the last two hundred years.
[…] the main problem of the Senate, that it gives citizens of small states more power than citizens of large states, has gotten dramatically worse. In 1790, the largest State, Virginia, had a population just under 12 times the size of the smallest, Delaware. In the latest census, California had a population 66 times that of Wyoming, yet both states each get two senators.
This argument, however, once again misconstrues the primary nature of the originally designed Senate. It was not about any sort of direct representation of the people. It was about representation for the states. The state governments were to be popularly elected by their respective citizens, while Senators were to represent those state governments elected by the people. The fact that California has more people than Wyoming is entirely correct but completely irrelevant.
Unlike the Founding Fathers, Mr. Walker’s true intentions are not the protection of individual liberties but instead a progressive fixation on equality. He writes,
Actual radical reform would be completely eliminating the Senate and making the country a more egalitarian democracy[…]
Unfortunately for Mr. Walker, this country was not founded on the idea of egalitarianism or even equality in general. The Founding fathers’ purpose had little to do with democracy, voting, or even elections. The primary purpose for creating our system of government was to protect the rights of the people as defined by the Bill of Rights (and, of course, those rights not specifically enumerated but nonetheless protected by the 9th Amendment). To the extent that democracy and elections were emphasized they were done so because they were conducive towards the goal of protecting individual liberties. An egalitarian democracy was not on the table 200 years ago because it would not provide adequate protection for individual liberties.
So, Can We Have the Senate Back Now?
The truth is Mr. Walker’s proposal to abolish the Senate is misplaced, for we have not had a properly functioning Senate for many years. In 1913, President Wilson signed into law the 17th Amendment which abolished the appointment of Senators by state legislatures and, instead, allowed them to be voted in by popular elections similar to the House. The 17th Amendment had a profound effect on the way our government functioned, but not in a positive way.
The first problem was quite predictable. With Senators elected by the people, states’ ability to have a say in Federal politics was quickly diminished to the point of veritable nonexistence. It isn’t surprising that since 1913 the Federal government has grown tremendously, usurping functions that once would have been regarded as purely the domain of states. With Senators more concerned with pleasing state constituents, and less with striking a balance between state and Federal authority, Federal tax dollars have flown into states in an unprecedented manner. The Federal government’s ability to extract compliance from the states by withholding their tax dollars would have been unthinkable on such a large-scale if Senators were beholden to the state legislatures rather than the populations of their states.
The second problem of allowing Senators to be elected democratically is something those leaning more liberal are well known for complaining about: money in politics. Money has always played a fairly significant role in the elections of House members, as they obviously must campaign throughout their districts to win votes. This was not, however, a problem with the Senate prior to the 17th Amendment. When you’re seeking an appointment from a body of people (state legislatures) numbering no more than a few hundred at most, there simply isn’t much to be gained by spending thousands of dollars “campaigning.” There would be no need for “meet and greets”, TV ads, or kissing babies. All of that changed with the creation of the 17th Amendment, as can be seen by simply observing the amount of demagoguery that goes on in Senate elections and the amount of money running through them.
Mr. Walker is, in a sense, correct that what we have now is not working. He is wrong to suggest that this is a problem with the Senate per se rather than a consequence of moving further away from the intentions of the Founding Fathers. Repealing the 17th Amendment would go a long way towards solving many of our problems, including an out of control Federal government. Would it solve these problems definitively? Of course not. The problems we face today run deeper than simply a bad Amendment. But it would set us down the right road, which is certainly something. All of the calls for campaign finance reform in the wake of the Citizens United case could be partially solved by simply undercutting the need for expensive campaigns in the first place. Legislation such as Obama’s health care plan, which puts a huge amount of the cost on state budgets, would be nearly impossible if states had some amount of influence within the Capitol.
What America needs is radical change. The Founding Fathers, who got much of it right the first time around, are who we need to listen to, not those calling for moving further away from the original designs of our system. Now that would be both radical and sensible.