Sandy Levinson has a new book out entitled Our Undemocratic Constitution, which spells out various aspects of the document that he believes are indefensible in our current age. The title is misleading to the extent that it suggests that an “undemocratic” Constitution is a bad thing. We live in a “republic” in which the people (demos) do not simply rule (cracy), but are checked and balance along with every other group involved in our governance. This might in some fashion promote a type of “democracy” (briefly put, an equal liberty to govern our lives), but we do not live in a true “democracy,” as the term is usually understood.
We live in a republic, Levinson et. al. like the idea, but are concerned that things have gone too far a field from the democratic aspects of our system.* This is likely true enough in various respects, though one can dispute some of the arguments found in his book. Consider out bicameral national legislature (two houses), which both are in some fashion divided into state delegations, states serving as rough dividing lines that gave our country its name. The way said delegations are divided is questionable, especially given the current policy of political gerrymanders. This can be altered under our system, if we had the gumption, but other aspects are less flexible.
Each state has to have at least one representative, which results in underpopulated states to have a benefit. This, however, seems like a respectable balance. Less so, at least in Levinson’s mind, is the Senate. Each state has two senators, which was logical in the days when one’s state often was deemed in large part one’s “country,” and national unity was in many respects hard to come by. All the same, even James Madison – who supported bicameralism – wanted the Senate to be apportioned by population. This was in a day when the population contrasts were much less glaring than today (cf. DE vs. VA and WY v. CA). But, the two senator rule was deemed so sacred that all states must agree before it is abolished. A similar rule respecting amendments was just ignored when the Constitution was enacted.
Regional concerns are worthy of some note, consider the idea of “senatorial courtesy” over local nominations, but they might not warrant that much concern in this day and age. Various amendments have made democracy more important (e.g., the people now elect senators) and court rulings have required state legislatures to be equally apportioned, even upper houses that in part represented regions. It also has been noted that the current policy skewers the Senate, giving certain more thinly populated regions of the country (following tradition, more conservative ones) a controversial veto. Thus, it took two close elections to match party control with the party that represented states with a majority of the population. And, such factors made it fully appropriate for Senate Democrats to do all it could to block overreaching that cheapened the Senate as an institution, partially to promote a President elected by a minority of the voting public.
I think it appropriate to have a Senate set-up for a somewhat different purpose than the more “popular” House of Representatives, including small numbers, senators serving longer terms and representing states as a whole, and (still) a somewhat more collegial/deliberative personality. It also seems useful to have them do certain things, such as handling nominations, treaties, and so forth. Finally, if they also provide a check on the House in some fashion, this too can be useful. All the same, does this require the Senate having the power to directly block every piece of legislation, including money bills that by constitutional rule must arise in the House? I think not – it can be conceived that in various cases, the Senate could temporarily block legislation, or require a supermajority of the House to pass such things. I’m not expected a 28th Amendment any time soon, but you know, as a thought exercise of sorts.
Likewise, more evenly apportionment is possible. While discussing this matter, one person proposed a start in getting around that troublesome anomaly in Art. V (two other provisions involving slavery are now obsolete) was to in effect water down the Senate. Give more and more of its duties to the House alone. I found this dubious, if we are talking about those duties constitutionally given to them, which retain significant value. But, we can play around with the roles somewhat. And, simply put, that oddball provision can be ignored. This sounds like cheating, but again, if it was okay with Madison, who felt such an absolute rule (when it concerned one of thirteen) was an “absurdity.” Federalist No. 40.
Are we to instead make the Senate a shell, since we are allowed, thus each state retains an equal vote to do nothing? Seems silly to me. Various ideas come to mind. The most thinly populated regions might retain some regional representatives – the Southwest Four, for instance, probably do not require eight senators between them. Thickly populated states might merit another senator or two, thinly ones only one (per the House rule). Certain matters might justify a “majority” vote of the Senate not mean a mere majority of senators, but perhaps at least forty percent of the country’s population. Senate rules might be allowed to provide an exception if a matter is held to affect certain regions in particular. And so forth.
Note that pure “democracy” is not the test here, but it is favored among other concerns. Lani Guinier (remember her? Quota Queen? yeah, ancient history) in Tyranny of the Majority spoke about the usual habits among friends. Simple majority rule might allow four to win out against one or two minority voices. But, we share. Second choices might be used in various cases if in the process the minority sometimes obtains their favored choices. And, certain things are simply not done. Cf. The idea of human rights. Majority rules might very well be the default and going beyond it too much generally deemed a bad idea. But, pure democracy is not the rule either.
Democracy is not quite our way – but going too far a field does cause problems. The balance is the rub.
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* Thus, a co-blogger supports court rulings – current statutory law aside – protecting intimate relationships, including requiring civil unions in those states that already protect same sex couples in numerous ways. Nonetheless, he does not think our society has developed to the point to which marriage should be court mandated. This arguably often only gives democracy a push – various firewalls delay legislation that the people as a whole are ready for – but majority rule is ultimately not the only test. The blog’s opposition to recent military commission legislation underlines that point in spades.