The Path to Give California 12 Senators, and Vermont Just One
Earlier this month, Eric W. Orts argued that the time has come to reevaluate the apportionment of the Senate. “Today the voting power of a citizen in Wyoming, the smallest state in terms of population, is about 67 times that of a citizen in the largest state of California,” Orts wrote, “and the disparities among the states are only increasing.” Orts proposed what he called a “Senate Reform Act,” legislation that would allocate one seat to each state automatically, and apportion another 60 seats based on population.
Professor Orts’s “solution” puts us on a path to a European parliamentary model, where the United States becomes the Subordinate States of America. Under his plan, the Senate, being of the same makeup as the House, would become irrelevant within a decade and would be abolished. The electoral college would fall, and the president would become a prime minister. States would cease to be relevant political bodies—instead they would be merely administrative districts—and we would be subject to an all-powerful central government in Washington, D.C.
This is long overdue. I see our country slipping into revolt as a result of what we have now. This seems to accelerate with each election. We cannot continue down a road that excludes the majority from taking the helm in a democracy. The path we are on now clearly gives the wealthy and powerful the exclusive right to rule America.
I have a better idea: one senator from each state, elected for a six-year term, and 50 senators elected at-large for 12-year terms. This is more equitable, and provides more people in the federal government who represent all the people, and not just one state.
Daniel R. Van Wyk
Shouldn’t it be done on the model of the United Nations, the world’s most progressive, most inclusive, most fair and equal major political body? One state, one vote!
Louis F. Sander
While Mr. Orts’s idea of majority rule sounds wonderful, there is a big pitfall in it.
For four years I was mayor of a small rural community in California, where legislature is by majority rule. There was never any concern in the legislature about the effect of legislation on the small and rural areas of the state. It was all about what the big cities wanted; small and rural areas were negated or ignored and thus problems never addressed.
Should Mr. Orts’s idea be adopted, there would be the same result. New York, New England, and the West Coast would be making decisions for all of the country, and vast areas of the United States would be ignored.
This is not in the best interests of all of the United States, just the big, populous states, and this is not what the Founders of our nation wanted.
La Verne, Calif.
I respectfully disagree with attempts to change the Senate so that each state has equal voting rights. The constitutional designers had an elegant plan when they created the Senate and the House. The House would give precedence to each state’s size, thus giving the “majority” a voice, and the Senate would be a counterbalancing force giving equal weight to each state and thus giving the “minority” a voice. The two chambers would then have to negotiate in order to craft compromise legislation that took account of the needs of both sides. This apportionment was not about depriving people of their voting rights or favoring small states over big states—the House clearly was meant to address both of those concerns. If people really want to change the Senate to reflect the size of states, then just abolish the Senate.
What this proportional representation idea does is punish some people just for being un-metropolitan.
Why not reassess the boundaries of the states every century or two to balance the scale of each state—like redistricting, except on a grander scale that addresses endemic migrations that will always occur?
Brian T. Rex
Dr. Orts has proposed an interesting path to solving the problems of representation in the U.S. Senate. However, he almost entirely fails to defend one of the underlying assumptions of the piece: that reforming the Senate is better and more elegant than simply abolishing the Senate.
Consider “better.” Throughout the article, Dr. Orts highlights numerical and racial equality as measures of quality, and says that sparsely populated and predominantly white states are overrepresented in the Senate. And yet neither of these problems exist in the House of Representatives. Same for the example of a larger number producing a broader spectrum of political representation—left-wing politicians like Beto O’Rourke already represent Texas in the House of Representatives. Thus, the supposed benefits could just as easily be gained by removing the Senate altogether.
Or consider “more elegant.” Nowhere does Dr. Orts describe what is elegant about reforming the Senate into a 110-member body whose proportions roughly match those in the House of Representatives. The redundancy this reform produces strikes me as a rather inelegant solution to the question of how to translate popular will into collective action.
Perhaps the closest Dr. Orts comes to defending the retention of the Senate is when he alludes to the “virtue in federalism,” but he never describes what he takes this virtue to be or how it is preserved in a body that can readily be swayed by the delegations of populous states.
I think this points to a question that is largely unanswered when it comes to current debates about representation in government: Just whom do we want represented in the federal government, states or citizens? People like Dr. Orts seem to favor the representation of citizens, but cannot let go of trappings of the time when states were more important units of organization. I can’t help but think that their arguments would be more convincing if they followed their values to their logical conclusions.
One method that would preserve the makeup of the current body, but even out the voting power, would be to weight votes by the number of people represented.
The senator from California would effectively count as 67 votes and the senator from Wyoming just one. After each senator votes, a computer could add to the total based on the population weighting.
The weighting formula would be updated every time there is a census. This way, it would be as up-to-date as the last census, and it would be automatically adjusted every census, as populations change and move.
Ft. Lauderdale, Fla.
The Senate was not designed to be representative of the people but of the states, and as such has served us well. Ideally each state sends two of its most esteemed people to the august body and they, with the other esteemed individuals, seek what is best for our nation. However, what has gotten out of whack is the House of Representatives. By limiting its size to 435 it has stolen the voices of millions.
Instead I would propose that representatives be apportioned based on the number of people living in the least populous state for a total of 531 representatives, all representing a comparable number of people equally.
Bruce R. Burns
Let me first say that I’m a European lawyer. I have no politically entrenched interest in this debate. Moreover, it seems to me that the political arguments put forward by Professor Orts in favor of his proposal have at least some merit. That said, as a lawyer, I find the legal arguments put forward by Professor Orts not very convincing.
First, it is hard to reconcile Professor Orts’s interpretation of the two-senators rule with any of the established methods of legal interpretation: wording, context, history, and purpose. As regards purpose, the most malleable method of interpretation: It would appear to me that the purpose of the two-senators rule was and is to preserve the sovereignty of the states forming the United States of America, not to preserve the dominance of any population group. The Founders clearly envisaged the Senate as an institution where the states are represented as equals (whereas the people are represented in the House of Representatives). One may dispute the wisdom of this choice, and of course other choices (such as the system proposed by Professor Orts) are conceivable. But to argue that this was not the choice of the Founders or that the principle of equality of states as such has somehow become moot seems far-fetched at best.
That brings me to my second issue with Professor Orts’s argument: that constitutional amendments protecting voting rights of citizens in the states could be construed as interfering with the voting rights of the states. That argument is unconvincing because it ignores the concept of state sovereignty and consequently confuses states and citizens as political actors.
My third issue is with the suggestion that the Constitution could be changed by simple federal law. This proposal is at odds with the basic legal principle that norms of a lower hierarchical order must be consistent with norms of a higher order. If it were otherwise, every town in America would be legally in its rights to reintroduce slavery by municipal ordinance (hint: They are not).
Without claiming to be an expert in U.S. constitutional law, it would appear to me that the only way to get rid of the two-senators rule legally would therefore be the path laid down in the U.S. Constitution: to gather the consent of each and every state for such a reform. Of course, there is also the alternative alluded to by Professor Orts: to hope for a majority of Supreme Court judges who are willing to close their eyes and think of England when the Senate Reform Act lands on their desk. But it doesn’t strike me as particularly convincing if the legal argument in support of the constitutionality of a legislative proposal is closed by the consideration that finding judges willing to ignore the Constitution would really help in passing the proposal.
Moritz Am Ende
The U.S. Constitution, outdated as certain elements may be, is such a strong protection against abuses of power precisely because it is difficult to change. To suggest that Congress may ignore its tenets, or that those tenets do not supersede congressional power, is to defy the basic premise of the document itself, and erode one of its greatest strengths.
The Constitution’s stability—its oft-frustrating resistance to change—has been a great bulwark against the kinds of swings in policy, and resultant reactions, that have undone so many free societies. I can think of few precedents so destabilizing to civil peace as the doctrine that Congress can rewrite its basic founding document by legislative decree.
Such a constitutional runaround would elicit nuclear outrage from the states it would disempower. It would (quite rightly) give immeasurable ammunition to the anti-democrats who already warn of “legislative coups.” It would fatally undermine the essential merit of having a Constitution in the first place—the public trust that its promise of stability creates—at a time when that trust is needed more than ever.
Professor Orts is justified in his fundamental concern for a just franchise, and he is not inaccurate when he describes the current Senate apportionment as “a vehicle entrenching white supremacy.” But if he is sincere in his goals, he should join the campaign against gerrymandering, and for publicly funded elections, or for ranked-choice voting, or for any of the other grassroots, pro-democracy, and constitutional measures now gaining steam.
At the very least, he should pursue his reapportionment proposal through the path of a constitutional amendment, as have so many successful reformers. Instead, he has thrown a half-baked and illegal idea, like a brick, into the window of our fragile public peace.
I do agree that our Constitution is more malleable than we imagine, but I believe the Supreme Court would regard legislation such as the Senate Reform Act, which would radically change Article V, to effectively be a constitutional amendment and thus subject to the amendment process outlined in Article V.
I don’t agree with your argument that the states have already consented to change their current Senate representation through the Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments. These amendments were focused on protecting the voting rights of individuals, and I believe it is a stretch to argue that they act as a state’s implied consent to radically change its representation in the Senate.
But even accepting your proposition that a Senate Reform Act could be adopted, doesn’t this attack the very essence of the Senate? In “Federalist No. 62,” Madison states, “The government ought to be founded on a mixture of the principles of proportional and equal representation.” Madison clearly recognized the need for a smaller, more deliberative body in the legislative branch to cool the passions and control the urges of democratic masses. Wouldn’t giving larger states more senators undermine the Senate’s ability to do this, and diminish any distinction between it and the House? Isn’t giving the Wyoming citizen more voting power precisely the point of the Senate?
I believe a better solution would be to continue to fight against gerrymandering, thus making the House more representative, while preserving the Senate’s function of representing the states’ interests equally.
Eric Orts replies:
First, I’d like to thank everyone for writing letters to me here, as well as in emails and Facebook posts. It is very encouraging to know in these challenging times for American democracy that so many everyday citizens are engaged, concerned, and thinking critically about our current condition. One overall lesson to be learned is that our constitutional democracy depends not only on professional lawyers, judges, or constitutional scholars. Ours is a government of “We the People,” and that means that constitutional law cannot be confined to specialists or legal experts. The popular constitutionalism exhibited by these kinds of discussions is real and necessary. It’s what our country is really all about, and it’s what’s made our country truly great as the leading constitutional democracy in the world.
Second, let me respond to some of the very good questions and comments in the letters published above. I’ll go pretty much in order of appearance and use first names (and my apologies if that offends anyone).
Dave worries that my reform would turn the U.S. into a European parliamentary system and predicts that the Senate would become irrelevant. I don’t agree. The Senate would continue in all of its specialized functions: essential co-legislator of bills with the House, sole congressional body with responsibility for the approval of treaties and judicial confirmations, etc. Nothing changes except the adjustment of how many senators come from which states. Nothing changes also with respect to the election and role of the president, except that the Electoral College becomes more representative of the people as a whole. That reduces the chances of gridlock when the president and Congress represent different parties, which isn’t bad. Bottom line: My reform doesn’t alter our basic form of government.
Robert is on my side and makes an additional good point. Other measures are needed to reduce the undue influence of wealth in our elections. And it would help to have a Supreme Court that does not knock out bipartisan attempts to enact rational restrictions on money in politics, as it wrongly did in Citizens United and other cases. An additional argument in favor of my proposal follows from Robert’s concern: Small states with overpowered senators are probably an easier target for big money trying to sway elections. For example, a billion dollars probably goes further toward influencing an election in West Virginia or North Dakota than it does in California or New York.
I don’t agree with Daniel’s idea of 50 senators elected at large for twelve-year terms. Even if this were constitutional, I think the idea of U.S. representatives and senators having responsibility for a specified geographical area and set of constituents makes sense from a political theory point of view. It is better for the president to be the single person who represents U.S. citizens as a whole (and we should make sure, of course, that it’s only U.S. citizens who have a say in electing him or her, and not a foreign power such as Russia or China).
Louis raises the improbable idea of the United Nations as a possible model. I’m a fan of the UN, but I think that most observers believe that its “one nation, one vote” system is actually a problem rather than a model to emulate. The UN, in my view, is in need of a modern Madison or two to help it formulate a representative structure that better matches the relative power and population of nation-states, and gives bigger and more influential countries and regions such as the U.S., Europe, China, and India greater representation, while still respecting the sovereignty of the many other smaller countries. This nut is outside of my expertise, though, to crack here. At least, I don’t think the UN serves as a model of good and efficient government that the U.S. (or any other country) should follow. The “one colony, one vote” model, by the way, was of course a fatal flaw of the Articles of Confederation that preceded the U.S. Constitution and a major motivation for the foundation of our strong national government as a remedy.
Mike raises an appropriate concern that I have also heard from others in online commentary on Twitter and Facebook. I grew up originally in rural southeastern Ohio, but I’ve lived in New York City and Philadelphia for most of my life now, so it’s true that I’m a city-dweller and may have developed a biased perspective. But the plain truth is that more and more of us live in cities, and my own view is that urban populations are currently underrepresented not only in the Senate but more widely. Of course, views are going to differ between rural and urban populations, but I don’t see any reason to privilege rural interests in the U.S. Senate, especially if we’re talking about a ratio of 40, 50, or 65 to one in terms of voting power. Note also that in big states like California, Texas, Florida, and New York, there are a lot of rural areas too—and they are currently underrepresented. Adding senators for these states increases the probabilities that rural interests get represented in those states, as well as the big cities like Los Angeles, San Francisco, and New York City. Take my own home state of Pennsylvania, for example. If it gets four senators, then in one election year of two senators, one senator might win who locks in the cities (as Senator Casey did in this election), and then another one might also win who claims more votes in rural areas (as Senator Toomey might).
Brad raises an argument based on the original intentions of the Founders, but I believe that the Founders adopted the “one state, two senators” rule mainly because the small states demanded it—and not for any other higher theory of politics, such as the idea that the Senate would represent “minority” rights (which also prompts the question: Which minority?). At the founding, James Madison and James Wilson argued strongly for an allocation of senators based on relative population (and perhaps wealth too). They lost this argument. The Senate was designed as an upper body that would have some degree of separation from “the People” because it was originally selected by state legislatures. The Seventeenth Amendment changed that, and confirmed a change that many states had already adopted, namely, the election of U.S. senators by popular vote. Under my suggested reform, the Senate would still act more deliberately—with six-year terms and a small number of members—and it would still give more weight to federalism than in the House. My reform would simply make the Senate more democratic—and structured more in line with our constitutional values of equal voting rights as well as federalism.
Brian suggests the idea of redrawing the lines of the states, and in theory this seems like a good idea. I’ve thought, for example, that it might be a good idea to redraw state lines not only to be more fair in terms of population but to better reflect natural geographic boundaries even more than they do already (e.g., around watersheds rather than rivers as boundaries). I think, though, that all of the states would have to buy into this sort of big change. Or you could try to get a constitutional amendment passed that would allow Congress to redraw state lines—but it’s unlikely that three-quarters of the states would agree. Another good change to our Constitution would probably be to make it easier to amend—say by two-thirds of the states rather than three-quarters.
Wales makes a strong challenge—that former Representative Dingell of Michigan would support— claiming that it’s more “elegant” to simply abolish the Senate. One founder that he has on his side is Benjamin Franklin. Franklin made the case for a unicameral legislature at the Constitutional Convention, but he gained nobody else’s support. The Pennsylvania legislature at the time (of which Franklin was serving as president) was unicameral, but the general feeling was that it wasn’t working well. I suppose that I have two responses to the criticism. First, I think that abolishing the Senate would pose a heavier lift constitutionally than that proposal I’m floating, which only reallocates representation of the Senate based on the delegated authority given to Congress under the voting-rights amendments. Where is the constitutional authority for an outright abolition of the Senate? It seems a harsh remedy for the problem of unequal representation. Under my reform, you can also interpret Article V not to apply, but it’s hard to make the same argument for legislation or an amendment abolishing the Senate. And how likely is it to get three-quarters of the states to vote for abolition when so many small states gain from the status quo? Second, as for federalism, I am generally in favor of it, and the wisdom of our Founders in establishing a regime of divided powers. (It’s good to see states like New York holding President Donald Trump accountable, for example, even as the Republican-dominated Senate drags its feet.) Nothing in my proposal departs from the federal allocation of powers—or separation of powers.
James argues for weighting the votes of the senators according to population rather than changing the numbers of senators, and this would work to solve the representation problem mathematically. But it doesn’t strike me as an adequate or practical solution, because what we want (I think) is for senators to exercise some degree of independent judgment. The Founders thought that we’d pick the best people for the job in making selections, and maybe that’s not always how it’s worked out, but I like their theory. I also think that weighting voting mathematically in this way would not work well in actual practice in the Senate on an everyday basis, where it really seems easier to make it one senator, one vote.
Bruce argues in favor of increasing the number of representatives in the House beyond 435—maybe to 535—and this suggestion tracks a recent editorial in The New York Times calling for “a bigger House.” I don’t have any objection to this idea, and as I argue in my working-paper version of “Senate Democracy,” a slightly bigger Senate of 110 would fit well with a bigger House.
I’ve responded separately to Moritz’s professional inquiries, and the main response for other readers is to see my longer working-paper version, which goes into details about the various “modes” of constitutional interpretation: text, structure, history, morality, and legal precedents. Briefly, I disagree with Moritz that “states have voting rights” in the U.S. system of representation. People should and do have voting rights, not states, and it is the right of people to vote that the voting-rights amendments protect. There is a view that senators should represent the “states” that they come from rather than the citizens in those states. But the modern view—and one confirmed by the Seventeenth Amendment—is that U.S. senators represent the citizens of the states and not the states themselves. This view represents an evolution of the U.S. system over time, but the idea that the Founders were creating a national government was a main point of the creation of our Constitution in Philadelphia, especially among the likes of James Madison, James Wilson, and Alexander Hamilton. And as for the “higher order of law” point, I ground the Senate Reform Act in the delegated powers given to Congress expressly by the voting-rights amendments. This sets up a conflict between two texts in the Constitution, but as I argue in greater length in the working-paper version, this conflict should be resolved in favor of the later amendments and a Senate Reform Act that would be enacted under their delegation of power.
I agree with Justin Roshak from Boston with respect to a need to focus on gerrymandering, and I support ranked voting as well as other innovations. I disagree with his characterization that my idea is unconstitutional. Roshak ignores my argument that the legislative authority is based in the voting-rights amendments delegating power to Congress to correct the abridgments of voting rights. Many are upset about the theory of equal voting rights that I advocate, but at least the theory itself is no more revolutionary than Madison’s vision for how the Senate should have been originally apportioned. In fact, my argument is pretty much an updated version of Madison’s original plan. As for the charge of the idea being “half-baked,” Roshak should consult my 70-page paper that is still in working-paper form. It’s not quite fully baked, I admit, but it’s more than halfway done.
Justin Stoll raises a good point, and a strong argument against my proposal is that the states have not “consented” to this change, as Article V seems to require. My argument, though, is not that the states “consented” to this particular change. They have consented repeatedly to give delegated power to the Congress to protect voting rights of many kinds as well as, essentially, “the equal protection of the laws” under the Fourteenth Amendment. As I discuss in the longer paper, some southern states have said that they never “consented” to the Fifteenth Amendment forbidding the denial or abridgment of voting rights on the basis of race or color. (Tennessee did not ratify it until 1997!) But these amendments went into force when three-quarters of the states ratified them. The states consented, then, to give Congress the power to correct the abridgment of voting rights by the United States or the states. The constitutional history of Article V is also interesting in this regard. In contrast to almost all of the other provisions of the Constitution, it was added at the last minute and without debate at the end of a long and tiring summer. (Madison and his allies might have been too worn out or distracted to object.) And finally, as to the famous quote of James Madison in The Federalist Papers, we should remember that The Federalist Papers (though increasingly revered as evidence of original intention) were actually written for propaganda purposes: focused mostly on getting the citizens of New York to ratify the Constitution after it was written. A number of good recent histories of the Constitutional Convention show that Madison was a strong proponent of apportionment of the Senate by population—the Virginia Plan—and he predicted trouble in the future if the “one state, two senators” rule was adopted. He was right. We’re in trouble. And I’m suggesting nothing any more revolutionary than to return to Madison’s original plan (though skipping his possible preference for illicit representation of slaves in the count). For good further reading on the history, see my late Penn colleague Richard Beeman’s Plain, Honest Men: The Making of the American Constitution (2009) and the Harvard Law professor Michael J. Klarman’s The Framers’ Coup: The Making of the United States Constitution (2016).
Lastly, I’d like to take the opportunity to thank my Atlantic editor, Juliet Lapidos, who helped make “The Path To Give California 12 Senators, and Vermont Only One” a little punchier, more persuasive, and more provocative than it would have been without her excellent editing.
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