Last year (October 9), I wrote about the long-term crisis facing the country in the form of a US Senate that was out-of-whack with democratic principles; a Senate where the 582,000 people of Wyoming had the same clout as the 30 million of Texas (ditto: Delaware with California). For constitutional reasons this is not easily changed, but today I talk about a few ways to think about better allocating this power.
The incremental solutions involve letting each state have one senatorial seat (just for chuckles, let’s include DC and Puerto Rico), so that’s 52. Then the balance could be distributed on the basis of population, so that California would have six in total, and Texas would have five, New York and Florida four each, 27 with two or three and 21 with one. Or, more modestly, you could divide the states into three groups and give three seats to the those in the top third, two seats to those in the middle, and one to those states in the bottom third. Both these approaches are plausible, sensible, and inadequate to meet democratic norms.
The underlying problem is the hoary notion that we are the United…States; a group of independent jurisdictions who have banded together to deal with common problems and the external world. The debates at the Constitutional Convention of 1787 are full of concerns about the joining of the 13 states into one union. The previous system (the Articles of Confederation) had proved inadequate to most people at the time and a greater degree of integration was the core of the new Constitutional structure. The elites in each state secured their power in the new government by reserving half of the legislative power to themselves (as chosen by their representatives in the state legislatures).
Somewhere between the Civil War and WWII, it became pretty clear that this wasn’t actually the case anymore. The national government was dealing with a majority of significant issues and, more importantly, people identified as “American” more than they did as Floridians or Michiganders. However, our national mythology is pretty sturdy, so we like to pretend that states are not only important but essential to the organization of our society. This was perpetuated by such anti-democratic inter-state contests such as Miss America and the staunch supporters of the University of Texas Longhorn Football Team and of its many counterparts.
Now, there is much to be said for localism/tribalism and, indeed, for local political communities to control local political issues; but promoting those groups to national political status is problematic, since they vary widely in size and equal power (one person, one vote) is the essential element of democracy.
Many countries have this federative aspect to their histories; smaller pieces were amalgamated and, over time, merged into a national whole. The exceptions are those (usually ex-imperial colonies) that were defined as a whole for administrative purposes at the time of their creation and those whose amalgamation is relatively recent. The result is a strong “federalism” and can be seen not only in the US, but also Belgium, Canada, and Germany. The US is the oldest of these and so, its founding structure is most outdated.
There is another rationale for constitutional federalism, however, that isn’t rooted in historical quirks and which retains considerable vitality today: separation of powers.
When most of the people who think of separation of powers (admittedly a small group), do think about it, they think (a la Locke and Montesquieu) of keeping the executive, legislative, and judicial powers independent of each other. All well and good. However, the idea of dispersing power to different groups can also operate at the ‘vertical’ as well as the more traditional ‘horizontal’ mode. We have lots of experience with constitutionally protecting states’ rights and powers from federal overreach. There is no reason why this can’t continue and no reason why its continuation has to depend on the use of states as electoral constituencies for the federal legislature. In other words, the two aspects of federalism: electoral and administrative, can be handled differently. The distribution of power and responsibility to the states can be constitutionally protected; electoral districts for the Senate can be different.
Senators and Representatives from large states and small states have a long history of arguing to limit federal overreach. Indeed, such an argument isn’t based on the state-defined nature of their electoral district; it’s based on a belief that too much power in any one power center is dangerous to others and to individual liberties.
In other words, Senators and Representatives can be effective in representing the individuals and local communities in their constituencies, regardless of whatever intermediate political entities those individuals are also part of. No one worries that a Representative’s district covers three cities and parts of two counties; why worry that a Senator represents parts of multiple states.
What would this look like? In principle, the solution is no different than what we have for US representatives: (more-or-less) equally-sized electoral districts. At the current level of population, this would mean fifty districts of about 6.6 million people each. Some would be entirely within one state (e.g., the Senator from Houston), but most would overlap multiple states (e.g. the Senator from Washington-Baltimore).
Imagine if California changed its Constitution so that each of the 58 counties had one State Senator, whether LA County (10M people) or Amador (~1100 people). It would be held up as a travesty of democracy and struck down as unconstitutional. Well, the Article I of the US Constitution cannot be, by definition, unconstitutional; but it’s still a travesty.