In Defense of the Senate

By Jay Cost

Sunday, March 21, 2021

 

Frustrated by their narrow majority in Congress, progressives have begun to take their ire out on the legislative branch itself. They claim that the filibuster — the Senate rule that requires a 3/5 vote to end debate — has been abused by Republicans and is a vestige of racism. Never mind that Democrats have made ample use of the filibuster in recent years, most recently to block South Carolina senator Tim Scott’s police-reform legislation from even being considered.

 

Yet some progressives who get paid to write about politics are thinking bigger: The Senate itself is the problem! It is insufficiently democratic! Ezra Klein spoke for many on the left when he tweeted:

 

If Democrats won Senate seats roughly in proportion to how many people voted for Democrats to win Senate seats this would all look very different. The “center” of the Senate is well to the right of the center of the country. And today is the result.

 

Here, there is a temptation for conservative defenders of our constitutional order to roll their eyes and leave it at that. After all, the Left has been complaining about the Constitution since the Left as we know it came into being: Woodrow Wilson was lamenting that our system is insufficiently British all the way back in the 1880s. And whining about the Senate is especially idle, since the equal apportionment of senators is literally the one constitutional provision that cannot be changed by amendment.

 

What’s more, one might be forgiven for assuming progressives are upset that the Senate is insufficiently Democratic, rather than democratic. They did not, as far as I can recall, have any complaints about the upper chamber between 2011 and 2015, when Democrats controlled it. And there was certainly no talk of abolishing the filibuster in 2017 or 2018, when Republicans had control of the White House and both chambers of Congress, and the filibuster was the only toehold on power Democrats retained.

 

Nevertheless, there is a teachable moment here: The Senate does not really require us to defend it, but a defense nevertheless can remind us of some brilliant, and distinctly American, political ideas.

 

At first glance, the American Congress appears to be indefensible on an intellectual level. Indeed, one can go back to the anti-Federalist writings of 1787 and 1788 to see opponents of the Constitution reject the partly federal, partly national nature of the institution. The dissenting delegates to the Pennsylvania ratifying convention of 1787 denounced Congress as a “solecism in politics” — a contradiction in terms. James Madison’s Federalist entries on the general subject of federalism are well argued, but his defense of equal apportionment in the Senate is a little forced, and for good reason — he vehemently opposed the idea at the Constitutional Convention. No delegate came into the Convention with a plan to build Congress as it was actually built, so the institution is reminiscent of the old saw that a camel is a horse designed by a committee.

 

But looks can be deceiving. A closer examination reveals colorful details about the Convention, especially the genius of the “small-state nationalists.” John Dickinson of Delaware and Oliver Ellsworth and Roger Sherman of Connecticut were as committed to a stronger national government as any of the delegates. Indeed, Connecticut, New Jersey, and Delaware all sent their best men to the meeting. They wanted the country to succeed. They knew that it was failing in that moment, and that only a new instrument of government would save it. But they were not willing to allow their states to be swallowed up by a potential Massachusetts-Pennsylvania-Virginia axis. Those three states were so large that they could essentially get whatever they wanted in a strictly democratic system of government.

 

Delegates from those states, especially Madison of Virginia and James Wilson of Pennsylvania, assured the small-state nationalists that they had nothing to fear: The large states were so diverse that they could never possibly agree on anything, and anyway, the only proper model of republican government is the rule of the majority. Yet the small-state delegates persisted, and who could blame them? They could not in good conscience go back home and present a constitution that threatened their constituents’ existences.

 

Though the small-staters were unyielding in their demands, they did not abandon the constitutional project. They stayed and worked through their disagreements — despite the fact that they were increasingly angry, and it was very, very hot in Philadelphia that summer. Ultimately, they embraced the compromise first suggested by Sherman — a House apportioned by population and a Senate apportioned equally. And in so doing, they found something more noble than majority rule: a form of consensus that would become the great bulwark of the American union.

 

It is naïve to think the rule of a simple majority is not potentially dangerous. In a purely democratic system, there is nothing to stop a majority from doing whatever it wants, and if it wants to enrich itself at your expense, you are without recourse. There is no king to protect you, no House of Lords to temper the majority’s greed or avarice. Nothing. But what if a majority were broad, deep, and durable? What if it reflected the considered judgment of a large and diverse segment of the American population, rather than just over 50 percent of the people? Such a majority would represent the consensus view of the American people, a common sentiment that is shared by many. So long as the American people collectively possessed a measure of civic virtue, such a majority could safely govern. There would still be a chance, of course, that it could threaten the common interest or an individual’s natural rights, but the threat would no doubt be diminished.

 

All of the deviations from direct democracy in the American system — Sherman’s representation scheme, the separation of powers across branches, federalism, bicameralism, the unelected judiciary, even the Bill of Rights — require us to forge consensus as a prelude to government action. They force we the people to pause before we act, to consider the views of others, and to try to find common ground.

 

The United States Senate is perhaps the greatest institution of consensus ever designed. Part of this is due to the influence of the Roman republic on the minds of the Founders, which led them to envision the Senate as an elite body, separated from public passions, whose function was to give legislation a second look. But part of it is also due to the apparent obstinacy of Sherman et al. For in a continent-spanning republic, geographical place must be considered when forging consensus.

 

Madison’s rejection of the small-state argument was empirically accurate in 1787, when America was mainly a land filled with yeomen farmers, but history would vindicate the worries of Dickinson, Ellsworth, and Sherman. Though there was no conceivable alliance to be forged among the large states in 1787, the Industrial Revolution created new social and economic cleavages — urban versus rural, factory versus farm, city versus town — that set the large against the small. Sure, the small states of 1787 might not have been swallowed up by the large states, but could the same bs said for the small states of 1817 or 1847 or 1877? Of course not. And why should we have expected western settlers to yield to a distant government into which they could provide no meaningful input, even on matters essential to their interests? After all, the American colonists in 1776 revolted against such a regime. Indeed, there were worries in the 1780s that settlers west of the Appalachian Mountains might be lured away by the Spanish or British.

 

Instead, we expanded rapidly westward before and after the Civil War, and our union held together because the interests of small states were incorporated into the decision-making process — thanks to the Senate. Therein lies the genius of the institution: By ensuring that the consensus has to take account of place, it facilitates the national republic that we enjoy today. It is easy to take that republic for granted. It is easy to imagine we could alter fundamental aspects of our system and still have the same country. But it is a dangerous fantasy. Were it not for the equal apportionment of senators, we would probably not even be a country today, and all the blessings of this union would be lost.

 

So, no, the Senate isn’t democratic. But thanks to Roger Sherman and the small-state nationalists, it is something much, much better: A force for consensus-building and national cohesion.