A few weeks ago, the New York Times columnist Jamelle Bouie assessed the flaws of the U.S. Constitution. His column included this complaint: “The final clause of Article 5 of the Constitution—‘no State, without its Consent, shall be deprived of its equal Suffrage in the Senate’—is an insurmountable obstacle to ending the distortions caused by equal state representation in that chamber.” Not long after, James Fallows wrote a similar lament, citing the same provision to say that the Senate can’t be reformed.
They are right, in practical terms, in the near future; given the current state of the parties, Senate Republicans would filibuster any proposed amendment—and the “equal suffrage” provision works in favor of enough small states to block an amendment abolishing the Senate. But that is only in practical terms and only for the near future; it doesn’t necessarily mean that we are stuck with the present Senate in its full squamous glory.
If you are the kind of person who greets every suggestion of constitutional amendment with shouts of “Never going to happen!”—feel free to move on. Throughout American history, people have tried to shut down reform proposals with that mantra. Critics have refused to let that silence them, and there have been constitutional reforms in the past nonetheless, although they took long, hard political work to attain. Beyond that, discussing possible changes is a good way to examine the flaws of the Constitution, and ways to improve the American system of government, even if they are never adopted.
As Marco Rubio would say, let’s “dispel with” false notions that even educated people parrot about the Senate. It isn’t a key feature in guaranteeing minority rights, nor is it really a noble “great compromise.” Instead, it was the product of the most cynical kind of legislative logrolling at the Philadelphia Convention, extorted from the body when some small-state delegates threatened to walk out and publicly blow up the entire effort to write a new Constitution. The concept of “equal suffrage” thoroughly disgusted James Madison, the “father” of the Constitution. He warned the Philadelphia delegates that under the “compromise” of equal representation, “the new government would be rendered as impotent and as short-lived” as the clumsy Confederation it was designed to replace.
What’s more, the particular rule that “equal suffrage” can never be amended is a constitutional obscenity. Yes, white men of the Founding generation had the political authority to set up a system of government—but what sane political theory argues that one generation can proclaim a political rule that no future generation can change, even when the authors have been dead for centuries? The sleaziness of “unamendability” should be clear when we note that only one other provision of the 1787 Constitution was “unamendable” (at least, as the document said, until 1808)—which guaranteed “the migration or importation of such persons as any of the states now existing shall think proper to admit”—or, in regular English, the provision solidified the brutal international slave trade for another 20 monstrous years.
The damage of equal suffrage is made worse because the Senate is a uniquely powerful institution. It has the power to “advise and consent” to executive nominations, including Supreme Court justices and lower-court judges. And one-third of the Senate plus one vote can block a treaty made by the president. It can also thwart measures—even very popular ones—passed by the House, and has equal power of the purse with the House. In constitutional matters, a proposed amendment must obtain approval by two-thirds of the senators voting. Each state, no matter how tiny, gets two extra electoral votes for its senators. In the event of a stalemate in the Electoral College, the Senate will choose a new vice president, while the House chooses the president.
As we have seen in recent years, a rogue Senate majority can simply refuse even to consider executive nominations or bills passed by the House. The “bicameralism” provisions mean that every statute or measure that has the form of a law must pass both houses. The rationale of this level of power for the Senate is that it provides a chance for a legislative body to take a second look at measures and retard the “tyranny of the majority.” In other words, the function of the Senate is to ensure that “we the people” don’t get the policy changes we vote for.
It’s hard to confront that fact without wanting to wreck the whole edifice by screaming, like Lewis Carroll’s Alice, “Who cares for you? You’re nothing but a pack of cards.” But the “unamendable” language makes such alternatives as simple abolition (“I got your equal suffrage right here—none!”) or some other coup de main.
When I was a first-year law student, my classmate, the feminist critic Rosanne Kennedy, left our professor speechless when she proposed language like this: “The word ‘equal suffrage’ in Article V of this Constitution shall mean ‘proportional to population.’” I’d support that one.
But could someone object that this is still compromising “equal suffrage”? Self-style “originalists” on the bench might think so, and thus rule a constitutional amendment, for the first time, unconstitutional. I propose sticking closer to the present text. Here’s the key: The Constitution provides unamendable “equal suffrage” in the Senate, but it does notprovide that the powers of the Senate are unamendable. There is no constitutional requirement that the two houses of the U.S. Congress shall have identical functions, and indeed they do not—the Senate has a good deal more say over foreign relations and executive nominations than the House.
This imbalance of functions can be changed, or entirely reversed. Right now, the Senate is, as New Republic editor Michael Tomasky recently wrote, “Where democracy goes to die.” In his other capacity as editor of Democracy: A Journal of Ideas, Tomasky recently convened a body of eminent constitutional scholars to write an entire new Constitution for the United States, which he christened “the Democracy Constitution.” It’s a brilliant document and worthy of study. Among other things, it re-creates the Senate, providing that no state shall have fewer than one or more than six senators.
That, of course, only underlines the regrettable fact that the only way to get rid of “equal suffrage” would be to replace the entire Constitution with a new one, a proceeding that would be, as the Georgetown University law professor David Super recently wrote, “a dangerous adventure” and probably one that should happen only if there is no alternative.
With the Senate, at least, I see an alternative.
My proposal is a constitutional amendment transferring most of the Senate’s powers—over nominations, treaties, impeachment, and even ordinary legislation—to the House. The Senate would also be cut out of its functions in the selection of a president in the event of electoral deadlock, and in approval of a new vice president. Senate concurrence would not be necessary for a bill that passed the House and was signed by the president (though under my proposal the Senate could record its support or opposition for such a bill and request the executive, or the House, to reconsider it).
This idea is not as outlandish as it might seem at first glance. The British House of Lords was originally formed to represent the peerage, and its functions and powers were distinctive and often more important than those of the House of Commons. (For decades, the House of Lords served, among other things, as the closest thing Britain had to a Supreme Court.) Gradually, these powers have been reduced by the popularly elected Commons. Judicial functions, which had been filled by an “appellate committee” of the Lords nominated for that purpose, have now been transferred to a new Supreme Court that has no connection to the Lords. The reactionary influence of the hereditary nobility has been reduced by provisions allowing the government of the day to nominate “life peers” who sit in the House but cannot bequeath their titles to their heirs. (The late mystery novelist P. D. James, for example, was “created” in 1991 as Baroness James of Holland Park.) The Lords may vote against legislation, but the Government—which is the leadership of the Commons—may present certain kinds of bills to the Crown for assent even if the Lords withhold approval. The Lords may not originate money bills.
Imagine now the U.S. Senate reformed as an American House of Lords—a consultative body in which, as “Lord Mountararat” sings in Gilbert and Sullivan’s Iolanthe, “Noble statesmen do not itch / To interfere with matters which / They do not understand.” Such a body would be invited to offer its wisdom to the president and the House of Representatives; in such a role, the Senate might become a jewel adorning, rather than an abscess disfiguring, the American body politic.
So, herewith my draft amendment, which adopts as much as possible of the original document’s language (my changes are underlined):
Amendment ____ The Senate.
- The United States Senate shall consist of two senators from each state elected by the people thereof, and each senator shall have one vote. The electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislatures. When vacancies occur in the Senate by resignation or other cause, the executive of the state represented by the senator shall issue a writ of election for prompt replacement by the people of the state
- The vice president of the United States shall be president of the Senate, but shall have no vote, unless they be equally divided. The Senate shall choose their other officers, and also a president pro tempore, in the absence of the vice president.
- Notwithstanding Article II, the president shall have power, by and with the advice and consent of the House of Representatives, to make treaties; and he or she shall nominate, and by and with the advice and consent of the House of Representatives, shall appoint ambassadors, other public ministers and consuls, justices of the Supreme Court and judges of such inferior courts as Congress may from time to time ordain and establish, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the House may by law vest the appointment of such inferior officers, as they think proper, in the president alone, in the courts of law, or in the heads of departments. The Senate shall have the power by resolution to express approbation of or disagreement with any appointment made by the president and the House of Representatives. Before such an appointment shall become final, the Senate may request either the president or the House to reconsider it, and either or both may do so at their sole discretion. The president shall have power to fill up all vacancies that may happen during the recess of the House, by granting commissions which shall expire at the end of their next session.
- Notwithstanding Article I, all bills shall originate in the House of Representatives; but the Senate may by resolution recommend such measures to the House or advise on bills originating in the House.
- Every Bill which shall have passed the House of Representatives, shall, before it become a law, be presented to the Senate, and at the same time presented to the president of the United States. If the Senate within five days shall recommend against signing, it shall forward to the president and to the House of Representatives its objections to it, which objections shall be published and entered into the journal of the House. If the Senate fails to object within five days, and if the president approve he or she shall sign it, but if not shall return it, with objections, to the House of Representatives. Upon receiving objections from the president, the House shall enter the president’s objections at large in their journal, and proceed to reconsider it. If after such reconsideration two-thirds of the House of Representatives shall agree to pass the bill, it shall become a law. But in all such cases the votes of the House to pass the bill shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each house respectively. If any bill shall not be returned by the president within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the House of Representatives by its adjournment prevent its return, in which case it shall not be a law. Every resolution of the Housefor an amendment to this Constitution that shall pass the House with a two-thirds vote shall be promptly transmitted to the Senate, which shall provide immediately to its advisability. If a majority of the Senate disagree with the amendment within ten days of receiving it, the president of the Senate shall transmit the results of that vote, along with a statement by the members of their objections, to the House for reconsideration. If the House shall re-adopt it by a two-thirds vote, it shall be sent to the states for approval and, upon approval of three-quarters of the state legislatures or conventions called for that purpose, shall become for all intents and purposes part of this Constitution.
- The House shall have the sole power of impeachment by a majority vote of the members present and voting, and shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the president of the United States is tried, the chief justice shall preside: And no person shall be convicted without the concurrence of two-thirds of the members present.
- Notwithstanding Article II, electors shall be assigned to each state according only to the number of representatives in each state.
- Notwithstanding Article II, when the electors transmit their votes as provided above, those votes shall be sent to the House of Representatives, which shall count said votes in the presence of both houses, and to announce the result. If any candidate secure a majority of votes for president, he or she shall be elected, and likewise if any candidate secure a majority of the votes for vice president, he or she shall be elected vice president. If no candidate for president receives a majority, the House shall then choose a new president and vice president, and voting shall be per capita. No candidate shall be elected without receiving a majority of the members present and voting.
- Notwithstanding Amend. XXV § 4, when a dispute arises under that provision that a president is unable to discharge the powers and duties of the office, the House of Representatives shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the House, within twenty-one days after receipt of the latter written declaration, or, if the House is not in session, within twenty-one days after it is required to assemble, determines by two-thirds vote that the president is unable to discharge the powers and duties of the office, the vice president shall continue to discharge the same as acting president; otherwise, the president shall resume the powers and duties of the office; provided that, in all cases, the Senate may at its election provide its advice to the House in the form of a resolution.
There you have it: The “World’s Greatest Deliberative Body” would be safely tucked away in the chimney corner where it belongs, no longer able to hurt itself or anyone else.
I recognize that this amendment leaves some other objectionable features of the Constitution in place—most importantly the survival of the Electoral College. I’m down with getting rid of that; it’s a reform that came within a few votes of passing Congress in 1969. But there’s an argument that an omnibus amendment that amends too many parts of the Constitution is not an amendment at all, but an end run around the constitutional convention provisions of Article V, so my amendment focuses on fixing what’s wrong with the Senate. I call it the “Let’s Get Rid of the Disgusting Charade That Is the Senate Amendment” (perhaps to be given another title later). By no means does it represent my sole aspiration for reform.
If readers will consider this proposal (without the usual churlish screams of “Never going to happen!”), it might generate new insight into the strengths and weakness of our system of government, and into strategies to reform it.
And who’s to say what will happen in five, 10, or 20 years? In 1906, the muckraking journalist David Graham Phillips published in Cosmopolitan a piece entitled “The Treason of the Senate,” laying out in excruciating detail how the original Constitution’s provision for legislative appointment of senators had generated a body dominated by robber barons and special interests. The piece was later expanded into a book of the same name; both publications gave added urgency to the long-standing drive to require senators elected by the people. By 1912, this popular mobilization drove the Senate to do the unthinkable—in essence, to do away with the system by which its members had gained their office.
(Here’s a reminder of the general loathsomeness of the very idea of the Senate: Recall the original resolution sent from the House that contained what was called the “race rider”—a provision authorizing southern states to elect senators without allowing Black people to vote. Popular outcry forced the deletion of this, which should serve as a historical reminder that the Senate itself had its roots in the slave system and was seen as key to maintaining white supremacy even after the Civil War.)
Once passed by the Senate, the amendment was approved in the states in very short order.
If nothing else, discussion and endorsement of my proposed amendment would be a way to express that this miserable chamber has been a disaster almost since the beginning of the Republic, disfigured by wheelhouse, courthouse loafers, party hacks, and corporate lickspittles, and by actual monsters like John C. Calhoun, Jefferson Davis, Huey Long, Theodore Bilbo, Joseph McCarthy, Richard Russell, Strom Thurmond, and Mitch McConnell.
I know people who wax rhapsodic about the Senate’s role in thwarting the will of the majority. They are wrong. I say it’s spinach. To hell with it.