You might also say that the increasingly undemocratic representation in the Senate is what the founders of the country created. Yes, of course, those who wrote and adopted the Constitution mandated that all states, big or small or in between, would get two seats in the upper house. And perhaps that provision was necessary to get the thirteen states to meld into one country, but that, of course, does not mean that it is right for today. Those founders, unless they were on substances much different from the copious amounts of cider they drank, could not have imagined states with populations approaching 40 million.
The Constitutional framers did not create a Senate with hopes that a small portion of the population would control the Senate. A national census had not been undertaken when the Constitution was drafted, but the drafters’ views of the relative populations of the states can be seen in the Constitution’s Section 2 of Article I where the document prescribed the allocation of Representatives for the original House. New Hampshire would have three, Massachusetts eight, Rhode Island one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three, for a total of sixty-five.
The framers thought that the three largest states (this calculation included the infamous three-fifths clause) would have twenty-six representatives, indicating the belief that Virginia, Massachusetts, and Pennsylvania had 40% of the population. Both Maryland and New York were allocated six Representatives. These five states, the framers believed, had about 57% of the population. Together, of course, they had ten seats in the twenty-six-person Senate, or about 38% of the Senators, while the states with 43% of the population would have 62% of the Senators. This, of course, was an imbalance, but it was nothing like the coming disparity where 50% of the population is expected to live in just eight states by 2040. They will only have 16% of the Senators, and, of course, the minority of the population will have 84% of the Senators.
Whether or not two-Senators-per-state is a good provision today, it is what we have because of what happened in 1787, not because we of today have determined it is the best policy for our governing structure. But even if almost all of us conclude that we should have some other way of allocating Senators, it won’t be changed. Of course, the Constitution can be amended, which requires approval from two-thirds of each house of Congress and ratification by three-quarters of the states. The states are treated equally, and the lack of approval from thirteen states, no matter what portion of the population they contain, dooms an amendment. The amendment process in general is difficult, but in reality it is impossible for changing the Senate’s composition. The Constitution’s amendment provision, Article V, says that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” I don’t think that I am being overly cynical by concluding that Alaska and Wyoming and other states will not give up their “equal” Senatorial representation.
There is another possibility for ameliorating the increasing undemocratic governmental structure. Large states such as Texas or California could divide themselves into four or six separate states, each with two Senators. The Constitution’s Section 3 of Article IV, however, says that such division can only be done with the consent of Congress. Again, I don’t think that I am being overly cynical by concluding that the Senate, where the overwhelming majority of Senators will come from the smallest states, is not going to approve the admission of such new states into the Union.
So . . . a smaller and smaller minority of the population will select a majority in the Senate. What, if in addition, the electoral college deviates further and further from the majority’s vote? Will “the people” see their government as legitimate? With these governmental structures unchangeable within our Constitutional confines, what will then happen?
The famed philosophers John Lennon and Paul McCartney seemed to advocate a mind change instead of a revolution when change might be desirable but difficult: “You say you want a revolution/ . . . But when you talk about destruction/ Don’t you know that you can count me out/ . . . You say you’ll change the constitution/Well, you know/We all want to change your head/You tell me it’s the institution/Well, you know/You better free your mind instead. . . .” But at least for me, I don’t think I can change my mind so that rule by an increasingly small minority in my country will really be all right. I don’t want to live in the equivalent of a banana republic.
But then what’s left? With no constitutional method for change, perhaps only the words of Jefferson show the path to a better democracy: “I hold it that a little rebellion now and then is a good thing, and as necessary in the political world as storms in the physical. . . . It is medicine necessary for the sound health of government.”
Or perhaps we should contemplate the words of Bobby Kennedy: “A revolution is coming—a revolution which will be peaceful if we are wise enough; compassionate if we care enough; successful if we are fortunate enough—but a revolution which is coming whether we will it or not. We can affect its character; we cannot alter its inevitability.”
We should start considering the extra-constitutional changes we are assuredly going to face.