Monday, November 26, 2018

A Tentative Burkean Defense of Something Like the Senate: A Response to Professor Primus

by Michael C. Dorf

A couple of weeks ago, I argued in this space and on Take Care that the US Senate is less anti-Democratic than it might currently appear. That capital "D" is intentional. The core of my argument was that while the Senate currently over-represents Republicans, that is likely an ephemeral phenomenon. As a structural matter, the Senate over-represents small states; over time, the parties' positions will continue to evolve in ways that seek to maximize their total influence.

To be clear, I did not deny that the Senate is substantially anti-democratic with a small "d." As I wrote, whatever might be said in favor of a system that deviates from strict population-based representation, the very out-of-balance ratios one sees in the US Senate cannot be normatively justified.

Professor Richard Primus wrote a thoughtful response to my essay. It also appeared on Take Care. Acknowledging that he might not actually be disagreeing with me, Primus pushed back against the idea that the apportionment of two seats can be justified. Here I'll respond in turn.
Primus and I both think that American federalism has a number of virtues, but, he argues, the 2-Senators-per-State rule does not actually contribute to those virtues. He asks to imagine a Senate apportioned on a population basis and supposes that while particular policy outcomes would change, there would be no systematic undercutting of federalism's virtues. He writes:
State governments would continue to be elected by their local populations and to have budgetary and policymaking power not derived from national authority, just as is the case today.  State governments would continue to be the primary policymakers in education, crime control, land use, and all the other areas in which state governments are now the primary policymakers.  The entire bundle of federalism-based judicial doctrines, from anticommandeering to sovereign immunity to dormant commerce to the various forms of statutory preemption, would, for better and for worse, be exactly the same.  In short, federalism—the division and sharing of power between the national and state governments—would remain undisturbed.
I'm not sure that's right about judicial federalism. Indeed, to the extent that at least some of modern federalism doctrine (such as the rule in the Garcia case) rests on what Herb Wechsler called the "political safeguards of federalism," changing the representation formula in a way that courts perceive to be weakening state participation in the national government (regardless of whether it actually weakens their participation) could lead courts to think that judicial safeguards must be strengthened. So one impact of abandoning (or of never having) the 2-Senators-per-State rule might be more aggressive judicial enforcement of federalism norms.

On the larger question, I wonder whether there might be a Burkean argument against Primus's position. The US is not the only federal system in the world that over-represents small states. In Canada, Ontario, Quebec, and the Maritime provinces each have the same number of Senators, even though the population of Ontario is about 70% greater than the population of Quebec and roughly seven times the population of the Maritimes. In the German Bundesrat, the ratio of the number of people per voting member of the largest state (North Rhine-Westphalia) to the number for the smallest state (Bremen) is 13 to 1. Australia's Senate is apportioned on a one-state-one-vote basis (excepting the two territories), leading to a per-voter ratio of over 15 to 1 between New South Wales and Tasmania.

Now it's worth acknowledging that the upper house of each of these federal systems plays a different role, and Primus in fact acknowledges that a deviation from one-person-one-vote might be justified in any particular federal system. Yet we might still think that the convergence of federal systems on the notion that the upper house should give small states more representation than they would enjoy in a one-person-per-vote apportionment scheme reflects a kind of wisdom of the ages or wisdom of the crowd. Can the designers of all these federal systems have been acting out of a kind of blind obedience to custom?

That's possible, but where there is at least a prima facie plausible justification for the practice, I think the burden would rest with those who want to challenge it. And to me, the prima facie plausible justification goes like this: Whether or not states' representatives in the federal government's upper house are chosen by the state institutions themselves (as in the US before the 17th Amendment) or directly by the People (as in the US following the 17th Amendment), those representatives will cast votes that prevent the interests of the large states from dominating those of small states.

I hasten to add that the foregoing is only a prima facie plausible justification for some sort of small-state bonus. As I said in my original post, I don't think the sorts of ratios we see in the US between the very large and very small states can be justified on this or any other basis. But including some sort of state bonus is at least a prima facie plausible way to design an upper house.

Whether Primus and I are disagreeing at all remains unclear to me. My main point is that something like the US Senate can be justifiable in theory. I don't read him to disagree. His main point is that the actual US Senate is not justifiable, either on direct normative grounds or as a kind of normative implication of our history. I don't disagree.

Where we might converge, then, is on how we urge people to argue about the Senate. Insofar as there is practical political advantage to be made from attacking the Senate, I don't think that it suffices to note that it is undemocratic. Plenty of at least somewhat undemocratic institutions (like the courts and an independent central bank) can be justified as fitting reasonably comfortably within a larger system of constitutional democracy. Accordingly, the charge should be that the particular package of undemocratic features we see in the contemporary Senate do not fit any sensible conception of constitutional democracy. I think Primus and I agree about that.

Of course, as I also argued in my original essay, it's not clear that there is practical political advantage to be gained from criticizing the Senate, given that it is effectively unchangeable under our Constitution. But I do not claim any particular expertise in knowing where there is or is not political advantage to be had.