In 1928, the Senate stopped the bill that would have given WWI vets their bonus then rather than in 1946. Mass protests for weeks by thousands of vets on the U.S. Capitol may have swayed the U.S. House, but the Senate was undaunted: passage of the bill would be economically disasterous . Such a scenerio is exactly what the delegates in the U.S. constitutional convention in 1787 would have predicted. They designed the House to reflect the passions of the people, and the Senate as a check on such passion where it is intemperate. Looking back at Shays’ Rebellion in Massachusetts, the delegates feared excess democracy. No supporter of the Senate, Madison nonetheless points out that “a numerous body of Representatives were liable to err also, from fickleness and passion. A necessary fence against this danger would be to select a portion of enlightened citizens, whose limited number, and firmness might seasonably interpose against impetuous councils” (Madison’s Notes, p. 194).
However, the delegates also designed the U.S. Senate “to represent the wealth of the Country” (Pinkney, in Madison’s Notes, p. 198). Col. Mason claimed that “one important object in constituting the Senate was to secure the rights of property” (Madison’s Notes, p. 200). Does being wealthy make one temporate or enlightened? Madison observes that “wisdom & virtue” are among the objects of the proposed Senate (Madison’s Notes, p. 195). Does being wealthy mean that one is apt to stand up for virtue? Does wisdom come from having inherited or earned wealth?
As if these two purposes etched in the design of the U.S. Senate are not sufficiently disjoined, the delegates also intended that the Senate represent the State governments so as to proffer them a means of defending their turf against encroachment by the U.S. Government. Senators were selected by State governments before the ratification of the 17th Amendment in 1913. It was debated in the convention whether popular election would give the senators a sufficient incentive to protect their respective State governments. The delegates concluded that it would be insufficient, and history has proved them right–as the governments of the States have steadily lost power to the expansive U.S. Government.
So, the U.S. Senate was designed as a check on the excess democracy possible in the U.S. House, to protect the interests of property, and to represent the State governments and protect the balance of power so crucial to the viability of federalism. It is not clear to me that these three functions are mutually-supporting or even compatible. I don’t see evidence in Madison’s Notes of Debates in the Federal Convention of any consideration of the assumed compatibility.
Just as any human institution is apt to subtly morph if it endures for a sufficient time, the U.S. Senate has changed through the centuries. As a result of the 17th Amendment wherein U.S. Senators are now popularly elected (by State), the U.S. Senate is more democratic–hence more like the House. The six year senatorial term is a buffer, to be sure. However, re-election is never too far off to be absent from a given Senator’s political and legislative calculation. Hence we are unwittingly leaving ourselves vulnerable to our own excesses. Are we assuming that our passionate, spur-of-the-moment, collective impulse cannot be reckless and ultimately not in our own best interest?
I have already pointed to the implications for the State governments, and we have seen their eclipse through the last century. What about the protection of property? How does this mix with the more-democratic “structural tendency” in the Senate? Are Senators more oriented to the upper-class voters while soothing the rest as if we too are being represented? In other words, is there a sort of duplicity built-in to this combination?
In my opinion, the U.S. Senate can represent the State governments while simultaneously serving as a check on the intemporate excesses possible in the U.S. House. Property is sufficiently represented in the U.S. Government as a whole, given the small number of elected and appointed officials relative to the entire population. I would look to the commensurate European Council in the E.U. The Council not only represents the State governments, the chief executives of the States (or their ministers when specialized topics are decided) sit on the Council. It is a viable check on the European Parliament, which is commensurate with the U.S. House (i.e., elected representatives by the people of the EU). We could do better by emulating the European Council.
Accordingly, I recommend that the governors sit in the Senate (which would meet periodically…with the governors’ respective staffs doing the leg work), with the relevant members of the States’ cabinets meeting on specialized topics. This might seem confusing, but it works in Europe. Essentially, officials in the respective State governments would meet in a common council. 50, not 100 members. The latter number is too numerous for a council. Because governors are elected, democracy would not be shirked even as the Senate would be a viable check on the excesses in the House (because the governors acting in a council are “two degrees” from the voters while the U.S. Reps are only one). To be sure, the Senate would not be meeting every day, but meeting periodically to decide the major points.
The Senate representing the State governments would distinguish the Senate from being a replica of the House. Do we really need two Houses? Strictly speaking, proportional representation applies where citizens are being represented. In contrast, in an intergovernmental council each government is a member–a person, as it were–regardless of how much each weights (e.g., different populations, territorial size, or wealth). The European Council deviates from the “intergovernmental council” model because the number of votes assigned to the governments is influenced by its population. I don’t see why the Senate would no longer be an intergovernmental council just because the votes are proportional; the key would be that governments would be voting, so the one vote per government could be relaxed. Because proportional represention is the rule in the U.S. House, the big States can protect themselves. So I don’t view the one vote per government in the Senate as problematic in terms of the Congress as a whole. In general terms, the more we can distinguish the two bodies of the Congress, the more we enrich our system of government by taking advantage of the unique contributions from different forms of polity. If there is a downside to proportional representation, a Senate not partaking of that method would automatically be a check (and vice versa, of course).
Part II
Part II
The US Senate is “absurd.” So said Katie Connolly of MSNBC in 2010. She was referring to Sen Shelby (R-AL) being able to singlehandedly place a hold on all pending nominations. Citing a congressional scholar, Johathan Chait noted that a blanket hold has never been used before. Connolly argued that Shelb was doing it “because he wants a European corporation to build some planes in his state.” Such a reason would be ubiquitous if not squalid enough in either body of the US Congress, so it is certainly plausable. One might recall the money Sen. Ben Nelson got for Nebraska by agreeing to the health care reform bill. In needing all 60 votes from the democrats and two independents, that bill gave us all a reminder of what an international body is like where each member has a veto. In singlehandedly blocking all pending nominations before the US Senate, Sen Shelby was drawing on this theory as well. While it is easy to trounce on each Senator (or each state) having a veto, I would argue that it is far less sordid than Shelby’s reason (i.e., more pork). Because every state in the Union is semi-sovereign (and enjoys residual sovereignty as per the tenth amendment), there is constitutional support for any state represented in the US Senate having a veto on any legislation or appointment. Because the veto is based on governmental sovereignty (i.e., the US Senate being in this respect an international body—unlike the US House), Alabama can use its veto even for reasons we might find disgusting.
So if each Senator (who represents his or her state as a political body even though he or she is elected by the citizens of his or her state) having a veto makes the US Senate “absurd” (and I join with those who are frustrated by it), we might want to consider the consequences that would be involved in depriving the political members of the Union of their vetos in the General Government (ie., Washington). We could expect an acceleration in the consolidation of power in the General Government at the expense of the state governments—resulting in one size fits all in a heterogenous empire-scale Union (i.e., empire). Any state government objecting to Washington taking over yet another domain of power would be powerless to stop that train without breaks running down the tracks toward a central state. Meanwhile, that train would be able to pass more legislation through the US Senate, further accelerating its speed.
Some time back, I asked Sandra Day O’Connor of the US Supreme Court why she wasn’t objecting to the US Government going beyond its enumerated powers. She replied to the small group that Congress was acting like a state legislature. Disgust was palpable in her voice. In a sense of futility, she added that it takes five on the US Supreme Court to have a majority decision (meaning that a majority would not go along with her on the enumerated powers matter). You might be wondering what is wrong with Congress acting like a state legislature. The problem is that the US is in scale (and its make-up) commensurate with an empire by today’s standards. In other words, most of our states are equivalent to countries. You just can’t (or shouldn’t) run a combination of countries as though it were one country. For one thing, a combo is inherently diverse. Also, its center is further from the people. It means less democracy or republican principles of representation because there are far fewer US Reps and Senators than state Reps and Senators. Also, the US Government is designed as an empire-level polity. Whereas the states’ Senates represent citizens (just as the states’ assemblies do), the US Senate (unlike the US House) represents political entities (the states) rather than US citizens. In other words, both US citizens and US states are members of the US. The US Government isn’t fashioned like a state government because the Union is a combination of such states (whereas a state is not a combo of republics in turn).
So we ought to be very careful about kneejerk reactions to fix the “absurd” US Senate. To be sure, holding up appointments to get pork is squalid even by a pig’s standards, but turning the US Senate into a state senate would drastically alter what the US are. Even though we use “the US” as a singular noun, the entity itself and its government were formed and designed with it as a plural noun (the states) in mind. The US constitutional convention delegates invented modern federalism to suit this new genus of an empire: the Union. The EU has since come into being along similar principles because it is of the same genus. To treat either the US or EU as though it were commensurate with one of its states would be to treat something other than what it is. That can only lead to a downfall. So perhaps rather than change the US Senate to fit our understanding, we might alter our understanding to fit what the US are. This would entail taking the pressure off of the US Senate by returning most of the domestic legislation to the state governments (where there is more democracy). Consider the coherence in having the US Senate mainly involved in foreign policy (and regulating between the states) and having a filibuster (which is close to the principle of international organization). That is, the state governments meet in the US Senate technically on an international basis. Moreover, the U.S. Constitution forms a hybrid between or composed of international and national governance. This unique situs fits with the empire-scale of the United States, especially as they have expanded to fifty.
Treating the US Senate as a state legislature…legislating on everything from healthcare to education…is a gross departure from this coherence. It is indeed absurd—only we have the arrows reversed. It is our use of the US Senate that is absurd—not the Senate’s principles (even though they can be abused, such as by Nebraska and Alabama). Treating the US Senate (and the Union) as other than what it is can only lead to the fall of our empire…our Union of States. To be sure, every empire that rises must fall. So why write? I’m merely trying to stay the fall a bit, but the outcome is certain. In the meantime, let’s not help it along. This will take more humility and much less presumptuousness in what we think we know about our system of public governance. With more humility, perhaps more of us will be content to get involved in our state governments. As it is, we overlook them and advocate changing the US Senate into our own image of what it should be, presuming the extant Senate is "absurd" (perhaps it is sheer hubris to make such a summary judgement?).
