The Proper Role of the Senate.

AuthorYoo, John C.
PositionThirty-Ninth Annual National Student Symposium

The Framers were wise to design a second house. The original version of the Constitution proposed a Senate that was elected by the House so that it still retained an indirectly majoritarian character. (1) But, of course, the Great Compromise between the large and the small states brought today's Senate into being as the price of having the Constitution. (2)

It is important to remember that the Founders were suspicious of democracy. (3) James Madison was against having a Senate elected by state legislatures. (4) In fact, he wanted to have a Council of Revision that would have brought together aspects of the national government to continuously exercise not just judicial review, but policy review over all the acts of the state legislatures. (5)

Indeed, Madison and the other leaders of the Constitutional Convention and the ratification debates had come together because they thought that democracy had gone too far in the states. (6) You might recall James Madison wrote a memo right before the Constitutional Convention called "The Vices of the Political Systems of the United States." (7) He did not call it a memo, but James Madison would have been an inveterate memo writer today. We would have been sick of getting all of his emails.

In that memo, he wrote an analysis of what had gone wrong during the Critical Period between the Revolution and the Constitution. (8) That diagnosis was excessive democracy. (9) The democracies that existed under the state constitutions looked very much like governments with no upper house, other than an upper house controlled by the lower house; (10) governments with a weakened Executive, again, controlled by the lower house; (11) and governments that looked much more like parliamentary democracies as we see them in Western Europe. (12) It is no accident, then, that not just the Senate but many aspects of the Constitution have this anti- democratic feature, or at least have the goal of trying to channel and limit democracy. (13)

So if Democrats have objections to the Senate, they also ought to have objections to having House seats allocated by states. (14) They ought to have objections to the judiciary and judicial review and the Electoral College, and so on. (15) In fact, they should disagree with the idea of having power divided between a federal and state government at all and wonder why we don't have a system more like France or Japan where all power just flows from a singular national government. (16) And then what we really have is just decentralized administrative units rather than semi-sovereign states.

One of the questions is, "Is it really worth undoing all that?" It is hard to say what the consequences would have been if we had not had a Senate or if we had not had a Senate where every state had two seats. The best you can do, I think, is compare and look at what happened to other countries that have adopted much more democratic or majoritarian systems or ones without a non-democratic branch of the legislature. And the best ones you can look at might be Western Europe or Japan. You could look at countries like the United Kingdom, France, Germany, Italy--countries which are much more democratic in their design than ours (17)--and ask, in the last one hundred years or so, have their outcomes consistently been better?

Regardless of whether it is the states that are there or some other non- democratic means of selection, the Senate has the effect of slowing down the ability of the United States to adopt public policies. (18) Some might say that adds to greater deliberation. (19) Other people might say it also allows entrenched interests of the status quo to stay in effect--that there is a bias against change. (20)

But is rapid change so good when you look at what happened over the last one hundred years in Western Europe? The Senate may prevent, for example, quick action for public policy problems, but it also might prevent the adoption of wild schemes and bad ideas. You might say that is what happened in England in the last fifty or sixty years with their swings between nationalization, privatization, and free markets, back and forth, back and forth. (21) Does that lead to better public policy? Our Constitution is a risk-averse decision-making system of which the Senate is a crucial part. (22)

That brings me to my second point: the Senate performs a number of functions that are not about representing the states. I would not say, based on voting patterns, that the modern Senate really represents the institutional interests of the states. It represents what the constituents in those states happen to...

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