In Defense of the Senate

By Jay Cost

Monday, November 20, 2017

In recent years the United States Senate has become the bête noire of many good-government liberals who believe that increasing disparities in state populations mean that the Senate is becoming more and more of an anti-democratic bastion that undermines the public will.

To a degree, I sympathize with these concerns. However, the Senate is worth defending.

James Madison is often called the “father of the Constitution,” but he was not originally a fan of the Senate. He believed that the only way to temper the excesses of democracy was to widen the sphere of political conflict. By taking in a greater array of factions, the government could balance and check competing interests so that only public-spirited measures would be enacted. He therefore called for proportional representation in both chambers of the legislature. Otherwise, the Senate would be just another version of the Confederation Congress, which was the governing body from 1781 to 1789 and which Madison thought was a failure. The states, Madison argued, had behaved irresponsibly at the national level and had been unjust in dealing with political minorities within their boundaries, so he wanted to cut down their power as much as possible.

As a Madisonian, I find this point persuasive. And I reckon that if I had been at the Constitutional Convention in Philadelphia in 1787, I would have voted with him on matters pertaining to the Senate. But such a government was a non-starter in 1787. A Congress with both chambers apportioned by population would have directly favored just three heavily populated states: Massachusetts, Pennsylvania, and especially Virginia. This was not enough to carry the vote at the Convention, so they formed a political alliance with the southern slave states, which, despite their small populations, believed that they could grow in the future. Yet this coalition was still not strong enough to withstand the demand of the smaller states — especially Connecticut, Delaware, and New Jersey — for equal representation in the Senate, regardless of population.

In fact, if the population disparities between the states had been as large in 1787 as they are now, the small states would have been all the more vehement in their insistence for equal representation in the Senate. After all, their main fear was of being swallowed up by the larger states. If the imbalance had been greater, they would have had more to worry about.

So the United States Senate is the product of one of the first political compromises in our nation’s history. And a necessary one at that. New Jersey, Delaware, and Connecticut would probably have refused to ratify the Constitution. New York was looking for any excuse to vote it down. North Carolina and Rhode Island, which initially balked at the Constitution, would probably have held out, too. And even Virginia might have rejected it. The Anti-Federalists, led by Patrick Henry, opposed the creation of a strong, centralized government, and they fell just a handful of votes short at the Virginia ratifying convention.

One may reply, so what? Who cares about history? The fact is that today’s Senate is an impediment to national democracy — it is undermining the exercise of governmental authority, and we should do away with it.

Three answers in response.

First, the demand to dismantle the Senate is, practically speaking, a fantasy. Article V of the Constitution allows for amendments to the founding document, but only under certain conditions. One of them is “that no state, without its consent, shall be deprived of its equal suffrage in the Senate.” In other words, eliminating the Senate would be impossible unless the small states voted to disenfranchise themselves.

Second, the Founders in 1787 raised the question of whether we would have a national democracy, and they voted it down at the Constitutional Convention. This is akin to what the staunch nationalists — Madison, James Wilson, and Alexander Hamilton — wanted, but they lost the battle in Philadelphia. And they probably would have lost it at the ratification debates as well. Ultimately, the established government was to be a blend of a national government acting directly on the people and a federal compact among the states, which retain a portion of their original sovereignty and equal representation in the Senate.

If this interferes with the efficient exercise of some governmental powers, maybe it is because we have expanded the authority of the government beyond what its structure was ever intended to bear. This is the argument of my most recent book, Republic No More: Big Government and the Rise of American Political Corruption. Our federal government began as a mixed system with limited authority, but has since acquired substantially more power. This imbalance between power and structure lends itself to gridlock, corruption, and inefficiency. Progressives wish to restore a balance by nationalizing our institutions, but I think they have it exactly backwards. Seeing as how the government (or at least the Senate) cannot be redesigned, I think the better response is to devolve certain powers back to the states and communities.

Third, it is tempting to unfavorably compare the government as it is against some ideal that has never been — but this is a false contrast. Why should we assume that such an ideal government would be benevolent in practice? Philosophers since the ancients have appreciated the dangers of unbridled democracy. Perhaps democracy in our system has been so successful precisely because the compromises of 1787 do a reasonably good job of bridling it. Perhaps the Senate, despite being a product of political necessity, has been — on balance — a salutary check on the impetuosity of the House of Representatives.

Here, it is appropriate to draw on the wisdom of Edmund Burke, who, in Reflections on the Revolution in France, made the case for small-c conservatism with regard to institutional tinkering:

The science of government being therefore so practical in itself, and intended for such practical purposes, a matter which requires experience, and even more experience than any person can gain in his whole life, however sagacious and observing he may be, it is with infinite caution that any man ought to venture upon pulling down an edifice which has answered in any tolerable degree for ages the common purposes of society, or on building it up again, without having models and patterns of approved utility before his eyes.

Like David Hume, Burke appreciated that government as we inherit it was not developed ex nihilo but is instead, at least in part, a product of historical contingency. It is therefore easy to criticize it along purely rational lines. But politics is as much a practical science as anything, so we should be mindful of the limits of theorizing. We should be wary of abandoning what has served us well, of casting aside an institution simply because we have some idea about what might replace it.

Burke stands out in contrast to the liberal tradition, which, whether from the left or from the right, has its roots in John Locke’s notion of government as a contract that can be altered under certain circumstances. As an anthropological matter, this is a pure fiction. Practically speaking, a belief in the value of contracts has its uses, because it reminds our rulers that they serve at the pleasure of the ruled. But liberal rationalism can be taken too far, inducing some people to presume that they can redraft the whole of civilization based on an untested, even fanciful theory. Thomas Jefferson, in his unguarded moments, was tempted by this utopian dreaminess. But Burke understood correctly that it was a dangerous tendency.

Our government is no doubt frustrating, and we can probably all agree that it is malfunctioning to a great extent. But the prudent solution is not to upend an institution that was necessary for its very creation in the first place. A sounder strategy would be a sober reevaluation of what we should and should not expect our government to do.

So, if I’m not prepared to give three cheers to the Senate, I’ll at least give it two.