Leslie Ogden, in her op-ed printed in the April 5 issue of The Tufts Daily, argued that, as a result of population shifts during recent years, the Senate has become biased in favor of small states. Ogden then goes on to state that this bias is responsible for many of today’s political problems, including an inability to pass immigration reform. However, she misses the point entirely throughout her argument.
She claims that the House of Representatives was created by the delegates at the Constitutional Convention as a body that was to have its membership based on population,and that the Senate was created as a body that was to have its membership based on proportionality. The problem is, though, that this is not the case. Yes, the House is supposed to be, and is, based on population, with each state receiving a number of seats proportional to its population relative to that of the other states. However, the Senate is supposed to be, and is, based on a principle of equal representation for each state. Every state receives two seats in the Senate, regardless of population, land area, or any other measure one cares to mention. If you’re a state, you get two seats, always.
In fact, the principle that every state should receive equal representation in the Senate is codified in the Constitution itself. In Article V, it states that: “… Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” These two provisions represent the only two types of constitutional amendments explicitly prohibited, to any extent, in the Constitution. The first of course has been expired for more than 200 years, but the second is still in force today. No state may be deprived of its equal suffrage in the Senate, meaning that every state shall be guaranteed the same number of votes in the Senate as every other state. The only way to deprive a state of this guarantee is to obtain that state’s explicit consent. Of course, no state is likely to voluntarily allow itself to receive less than the number of votes in the Senate that the others receive, so such an amendment is incredibly unlikely to ever be passed.
The Senate was never intended to represent the population proportionally. In fact, for most of its history, senators were elected by the legislatures of each state, not by the voters directly. It was not until the ratification of the 17th Amendment to the Constitution in 1913 that the people could directly elect senators. It seems fairly clear that the Senate was never intended to be, nor has it ever actually been, representative of the populations of each state.
Furthermore, Ogden herself states that the largest states (the nine largest, to be precise) have a majority of the vote in the House. Thus, while a bias towards smaller states may exist in the Senate, a bias towards larger states exists in the House. This is, of course, by design. The Constitution affords an equal vote to each state in the Senate as a measure to balance the overwhelming power of the large states in the House. Therefore, it would be incredibly infeasible to change the balance of power in the Senate to correct the claimed bias, and, even if it were feasible, it would be ill-advised as it would defeat the purpose of the Senate as a check on the power of the most populated states.
The Senate does need to be reformed, but it should not be done by changing its fundamental nature. Rather, procedural changes, which, although difficult to pass, are much more feasible than fixing any claimed small state bias, need to be made. For one, the elimination of the filibuster would go a long way in ensuring that individual senators do not possess too much power over the passage of legislation. In addition, the abolishment of so-called Senate holds (which can sometimes even be anonymous) would also go a long way in achieving the goal of reducing each individual senator’s power over the proceedings of the Senate. The outlawing of lobbying in both houses would, of course, also be quite useful in combating the power of special interest groups. Some of these proposed changes are more pie-in-the-sky than others, but none of them would be as difficult to achieve, nor as ill-advised, as changing the fundamental nature of the Senate itself.