In 1789, the Founders changed the way the world thinks about power. They united behind America’s overarching premise: the concentration of all power in a central authority must be challenged. Today, even amidst heightened awareness of real and perceived right-wing authoritarianism, a tiny but noisy cabal is advocating for government reforms that would increase centralized authority. Their target is the United States Senate and their politically motivated proposals demonstrate that they do not want a democracy. They want power.
After the Senate confirmed Brett Kavanaugh to the Supreme Court, some left-wing media called for the packing and abolition of the Senate, the chamber that equally represents states in the federal law-making process. Highly improbable as it is that they will get their way, their justifications were cunning and bold. They leveraged current egalitarian sentiment to spread distorted data and make it appear as though they had unearthed a malicious injustice. In doing so, they forgot the Senate’s true purpose. Whatever rulings could plausibly ensue from Kavanaugh’s tenure—including court rulings that defer to democratic legislatures—pale in comparison to the dangers of a Senate without equal representation. This would accelerate the accumulation of power by central authority and the disintegration of statewide democratic self-governance, a phenomenon that receives comparably little press.
Without a Senate, there would be greater hyper-partisanship and bare majorities would probably be able to seize power. Proposals to alter governing institutions aren’t inherently bad. However, changes that threaten the barriers to centralized authority are in direct contravention to the premise and spirit of the United States of America as a nation.
The Founders were acutely aware that human nature cannot be perfected by decree or design. So they did something no large sovereign country had ever done before: they divided power and created institutions that set limits on its exercise. Democracy is not merely as good as its participation rate, but also only as good as its institutions and their purposes. It is this division of power—not the Bill of Rights nor any subsequent constitutional amendments—which secures the freedoms and civil rights of the American people. Structure is destiny.
However, the Founders were far from unanimous as to how to establish this principle. They poured over multiple plans and disagreed vigorously over how to divide up power in the new government. In the Declaration of Independence, Thomas Jefferson famously writes that the people have the right to “alter or abolish” the government if it is “destructive” of core American virtues. He thoughtfully adds, “Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes.” The long-term systemic risks of packing or abolishing the Senate negate the light and transient reasons for doing so.
Equal representation in the Senate is guaranteed by Article 1 and reinforced by Article V and the Seventeenth Amendment to the Constitution, which provide for “two senators from each state.” The House of Representatives allocates seats proportionally, in order to represent the people, but the Senate allocates seats equally, in order to represent each sovereign state, regardless of population. This means that all states have an equal say in any federal legislation that applies nationally. The burden of persuasion is therefore on legislators who advocate for central power. They need buy-in from other senators, willing to share whatever ensuing political risks or policy ramifications may impact their states. Equal representation in the Senate therefore acts as a floodgate between executive authority and the people.
James Madison, who vehemently opposed equal representation, nevertheless identifies its redeeming values: “This complicated check on legislation may in some instances be injurious as well as beneficial.” It acts as an “impediment” that improves protection “against improper acts of legislation.” Given that the “excess of law-making seem to be the diseases to which our governments are most liable” it is conceivable that equal representation may be “more convenient in practice than it appears to many in contemplation.”
The core grievance critics have with the Senate is intrinsic to the chamber’s stated purpose. Critics correctly observe that equal representation inflates the voting power of small states. This is true, but it is not an indictment.
There are two majors flaws with the case against the Senate. First, critics apply the facile approaches to studying disparities popular in modern social justice activism. This misrepresents the Senate and its purpose. Second, such critics falsely believe that senators represent the people—or the country—not the individual states. To back up this argument, they employ bogus metrics based on nationalized data, which disregard state borders, to foment outrage. One key example involves Washington Post reporter Philip Bump. After Brett Kavanaugh’s confirmation, Bump argues that the vote was unjust, because an active majority of the senators who backed Kavanaugh represent only a cumulative minority of the country’s population. Under Bump’s collectivized logic, Donald Trump won the popular vote in 2016, since the states he carried represent a majority of the people. Erroneous macro-analyses of this kind also led to the myth of the “Senate popular vote,” since debunked by the Post and others.
An article on Bump’s data point, in the Atlantic, opines, without evidence, that Republicans have a “built-in advantage in Senate races” and that the states Trump won “tend to be more Republican,” “whiter” and “harder for Democrats to win.” True. And the states Hillary Clinton won tend to be more Democratic, slightly less white and harder for Republicans to win. The implication here is that Democrats have less responsibility to court Trump state voters than Republicans do to court Clinton state voters.
Last July, Norman Ornstein, a scholar at the American Enterprise Institute and critic of the Republican Party, tweeted a data point that was widely circulated by progressives in a number of anti-Senate articles, particularly after the Kavanaugh confirmation:
By 2040, 70 percent of the country will live in 15 states. 30 percent will choose 70 senators. And the 30 [percent] will be older, whiter, more rural, more male than the 70 percent. Unsettling to say the least.
Ornstein implies that the data he cites substantiates the claim the Senate is and will become more rigged in favor of Republicans, on the bases of race, population, sex and age. However, this does not reflect the current composition of the Senate and the parties which have each controlled the Senate over the past half-century or even over the past twenty years. Ornstein presumes that the political landscape will remain static in 2040. However, it may be disrupted. In fact, for virtually the entire existence of America, between 64–67 percent of the country has lived in only fifteen states. This hasn’t impacted Senate competition in any demonstrable way, nor is the Senate less competitive as a result of the demographic criteria Ornstein cites. The reality is that the country is starkly divided and each side believes it is entitled to power it shouldn’t need to earn.
Right now, Senate Republicans undeniably perform noticeably better among a collection of smaller and whiter states, but they are also either leading, or remaining more competitive in the most populous, least white, least male and youngest states than Senate Democrats are in smaller, whiter states. Some Senate Republicans also perform better among African-Americans and Latino voters statewide than their Democrat counterparts. This may be the result of a combination of old-fashioned appeal and recent national changes in black voting patterns, which have returned to slighter lower pre-Obama levels, as well as Senate Republicans’ ability to narrow Trump’s deficit among Latino voters at state level. Nationalized macro-analyses often overlook how and why political contests play out in individual states with unique dynamics.
In another article in the Atlantic, Eric Orts contends that merely passing a law can end equal representation. This argument ignores Article I and the Seventeenth Amendment of the Constitution. Orts argues that the Senate is in violation of multiple voting rights amendments, and may therefore be subject to rectification by Congress. He argues that Article V, which outlines the constitutional amendment process, doesn’t apply here. He also claims that the Senate is biased in favor of “small states with predominantly white populations.” However, the Founders did not organize the Senate in order to consolidate voting power in small or white states. Senators represent states, not the country. It therefore makes no sense to conduct, as Orts does, a “comprehensive empirical review,” which compares the racial make-up of “the national population” with median representation in the Senate. “Whites are the only group the Senate apportionment advantages,” he argues. If, by “advantages,” he means that more white people are running for and getting elected to the US Senate, sure. The Senate therefore “entrenches white supremacy,” Orts claims. There is no evidence for this claim.
Those who perceive a lack of democracy in the Senate usually demand more democracy, i.e. more visibly reciprocal results relative to votes cast. This seems unobjectionable, but in fact it would be a highly undesirable outcome. More of a thing (or more access to a thing) does not increase its value. We usually understand democracy as a verb: to vote. But American democracy is first and foremost a noun phrase: a regulated marketplace for power.
Scarcity gives power value. Checkpoints, like the Senate, that impede the acquisition of central authority protect democratic self-governance against a system that seeks to remove such impediments through populist appeals to democracy that necessitate the centralization of authority. America is a qualitative democracy. It provides citizens with power currency that has value in a maximum number of arenas.
In an autocracy, the value of power is so high only one person can afford it. Majoritarianism devalues power by making it abundant beyond utility. As a result, power depreciates and this facilitates the hoarding of power at the top levels by hyper-partisan tribes, who enact and repeal one another’s agendas. Autocrats and populists benefit from systems of authority that produce short-term gains for ideologues, while transferring the medium to long-term costs to everyone else, especially constituencies with mixed interests.
The Founders taxed majority power and redistributed it downward to the people, whose power would otherwise have been diluted by an unregulated, majoritarian market of vulture power capitalists. Equal representation in the Senate provides a kind of universal basic income of political capital for small states.
Anti-Senate proposals also present design problems. Centralizing power increases systemic risk. Systems that secure the division of power distribute risk. Systems that distribute risk survive.
In his book Antifragile, Nassim Taleb writes that the opposite of fragility is not robustness but antifragility: people or things that are not merely resistant to, but are enhanced by, the volatility and organic dynamism of the social and economic marketplace. Antifragile people and systems can competently leverage volatility over the short and medium term to provide long-term stability. Conversely, fragile systems frantically seek to eliminate variation and disparities by artificially suppressing volatility with uniformity. These systems limit their survival by preferring (perceived) short-term gains over long-term risks. The Senate is one key component in America’s antifragile structure.
Taleb’s antifragility theory has parallels in disciplines including human development, physiology, finance, thermodynamics and civil engineering. Suppressing organic variation with uniformity and confining power in fewer places fragilizes children, weakens immune systems, triggers austerity, widens gender gaps and collapses buildings.
If the Democratic Party drifts towards viewing central authority as the only tool through which to implement a progressive agenda of nationalized programs that backload risk, they may view American democracy’s risk dispersal structure as an impediment. This may lead them to argue against democratic institutions like the Senate, which make a uniform agenda more difficult to enact. Anti-Senate progressives may also simply be attempting to keep the Democrats’ Senate campaign strategy moving in a progressive direction. Inconveniently, however, the status quo requires them to moderate their discourse in order to regain seats in some of those red states—Iowa, Arkansas, Missouri, Indiana, Louisiana, and others—that they lost ten years ago.
Equal representation is a vital part of America’s risk management strategy. The disadvantages of having a Senate are a tiny price to pay relative to its benefits: more avenues for self-governance at more accessible levels of government combined with significantly reduced chances of a long-term, party-aligned Congress and president ruling through sweeping majorities. In such a polarized country, the optimal use of these avenues of effective self-government is crucial.
This isn’t an argument against the federal government. This is about maintaining a system that can competently mitigate long-term risk. When we talk about government institutions, what we are talking about is legally binding power over others. The American system is designed to protect us from people who are certain they know best and that nobody has better intentions than they do. Even when they are elected president.
Lawmakers and the commentariat would better serve the public by addressing what is really wrong with American democracy. To do so would enhance the reputation of the federal government and its employees. The problems include: the troubling amount of unilateral power concentrated in the presidency; the disproportionate influence of the lobbying class; the excessive amount of time Congress spends on fundraising; the partisan grandstanding enabled by televised hearings; the elimination of the Senate filibuster; the lawmaking done by undemocratic bureaucracies; the former and future corporate executives who write and then game federal regulations; and the winner-takes-all rules of the Electoral College.
Ultimately, what is most dysfunctional about American democracy is the misplacement of influence and responsibilities. The structure itself serves its intended purpose and, as a result, remains improbably resilient. It will remain so as long as the people understand why division of power is necessary and how they can engage in effective self-governance. Equally, democracy will depend on ensuring those that we elect have skin in the game and that they faithfully perform the duties of their office by representing their constituents first and foremost.
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