Thursday, November 29, 2018

The End of the Two-Senators-per-State Rule: Thoughts on the Dorf-Primus Non-Debate

by Neil H. Buchanan

The U.S. Constitution includes a compromise provision that created an upper legislative house with two senators representing every state.  Notwithstanding its mere existence, does that provision make sense?  I suspect that most people would respond to that question initially from a purely realpolitik standpoint.  Specifically, because that arrangement currently favors Republicans, Democrats hate it and Republicans fiercely defend it.

But if asked to justify it on some other grounds, my sense is that most Democrats would feel the need to sound conciliatory and say that there is something about a non-proportionally-delineated legislative body that could make sense.  Maybe it has something to do with preventing the tyranny of the majority, they might say.  Or perhaps something about states' rights (stripped of the racist overtones of that particular two-word phrase).

Perhaps, however, I am projecting my own ill-formed intuitions onto others, in which case I am simply confessing that I had never quite taken the time to think clearly about the two-senators-per-state rule (which I will call 2SPS here).  In any case, I have learned a great deal from the recent non-debate between Professors Michael Dorf and Richard Primus, which they have waged this month here on Dorf on Law and on Take Care.  (The first column was written by Dorf, followed by Primus's first response, then Dorf's reply, then Primus's epic summation.  I do not know whether either side plans to write again on this topic.)

Here, I want to fill in some pieces of the argument against 2SPS, focusing in particular on a comparison between bicameral state legislatures and Congress.  This comparison, I think, strengthens the (already extremely strong) case that both Dorf and Primus have laid out against the current structure.

Before I get to my small contribution to the discussion, I will allow myself to indulge two urges.  First, I should say that it is fun to read Professor Primus's work, not only because it is nuanced and powerfully argued, but also because he is a former student (when I was a graduate student, many years ago).  He was an obvious star even when he was a Freshman in college, and it surprised no one that he quickly became a top constitutional scholar at a top law school, now in the middle of a brilliant career. That he is able to toss a word like "equipopulous" into a highly accessible intellectual exercise is merely one stylistic example of his intellectual facility.

Second, this exchange between Dorf and Primus is proof that intellectual progress can be made without engaging in classic debates of the Point/Counterpoint ("Jane, you ignorant sl_t!") variety.  In the title of this column, I refer to this as a non-debate, and I mean it.  Both scholars take special care to emphasize the limited nature of their apparent disagreements and point out that they might not ultimately disagree at all.  Yet the process of sorting everything out has clarified issues and enlightened readers.  Being disagreeable is not necessary to make intellectual progress, and it is a pleasure to watch two insightful minds interact agreeably and productively.

So much for the preliminaries.  The stakes here are, as both Dorf and Primus concede, entirely hypothetical in the sense that there is no serious prospect of our current arrangement being abandoned anytime soon.  The people upon whom 2SPS bestows advantages will use the other counter-majoritarian structures of the Constitution to prevent the loss of their unearned benefits, and the dead hand of the founding generation will thus continue to misrule the country.  But that does not mean that the debate is not important in its own right.

Primus's most recent contribution hits all of the important arguments (and makes clear his convergence with Dorf's point of view), and it deserves to be read in its entirety by a wide audience.

To me, Primus's strongest arguments are that the usual justification of 2SPS -- that it protects small states from the predations of big states -- is utterly incoherent both as a normative matter and as a descriptive one.  I will elaborate momentarily.

Before I do, however, it might be useful to look at a recent example of the big/small argument in the popular press.  A few weeks ago, Paul Krugman devoted his New York Times column to this subject, arguing that there is a difference between "Senate America" and "Real America."  His point was simply that the Senate is (by design) highly unrepresentative of America, which distorts policy decisions.

In response, an enraged reader wrote a letter to the editor that was a veritable study in small-state grievance.  I am reproducing it in full here because it is so useful in showing both the angry tone and the lack of actual arguments in favor of 2SPS:
As a resident of “Senate America,” I shouldn’t be surprised by Mr. Krugman’s column. It’s simply more confirmation that when results don’t go the way the leftist elites want, they start talking about unconstitutional desires. The Senate was designed to prevent the very thing Mr. Krugman wants: large population centers (like New York, California and Illinois) being able to ignore the wishes of the rest of the nation.
We live different lives here in flyover country. But one thing that we have in common with New York is that we are equally represented in the Senate. We are not “real America” or “Senate America”; we are simply America.
Our founders got it mostly right. They knew what could happen if protections like the Senate and the Electoral College weren’t put into the Constitution. They knew that without that check, the largest states (primarily on the coasts today) would be able to completely ignore the rest of the nation.
My suggestion to liberal elites like Mr. Krugman would be this: Quit whining about how stupid the voters are and work harder to convince us in flyover country that your policy beliefs are the best way forward for our nation. I promise that I will work harder to convince you that your policy beliefs are wrong.
Note the whining tone with which the writer accuses "liberal elites" of whining.  Marvel at the defensiveness with which he invokes memes like "flyover country."  The fact is that Krugman's use of the term "real America" was a deliberate riff on the partisan deployment of that phrase by Sarah Palin (who can still best be thought of as the beta version of Donald Trump).  "Real America" per Palin is white people in small towns in small states.  Krugman replies that, no, America is really a fairly urban country.

Indeed, if America were truly what Palin says it is, 2SPS would not be counter-majoritarian.  But Palin, of course, was merely using this framing to stoke the culture wars, and the letter writer who scolds Krugman thinks that he makes a great point by saying that "we are simply America."  (I wonder if he knows that he is echoing Barack Obama.)  And he is right: we are America, but some Americans are more politically powerful than others, because the Constitution set that inequality in stone.  And that is wrong.

Note that the letter writer makes the big/small state argument twice within one short letter: "The Senate was designed to prevent the very thing Mr. Krugman wants: large population centers (like New York, California and Illinois) being able to ignore the wishes of the rest of the nation.," and "[T]he largest states (primarily on the coasts today) would be able to completely ignore the rest of the nation."

And this is where Primus's two-part dissection of the supposed "protections" of small states against big states, which is what 2SPS supposedly provides, becomes important.  As Primus points out, there is simply no reason in political theory to believe that people in small states deserve protection against majority rule.  They are not a discrete and insular minority.  They are simply people who live in small states. In Primus's words: "The question, still unanswered, is why anyone should think that those six hundred thousand people [in Wyoming] deserve more influence than six hundred thousand people in the Rio Grande Valley, or in Queens, or in downstate Illinois."

What, as a normative matter, makes an unprincipled compromise in the late eighteenth century sacrosanct in a country that purports to believe in one-person-one-vote?  Primus shows us that 2SPS allows some people to "completely ignore" the wishes of other people just as much as any other rule that gives disproportionate power to a political minority would do (and just as much as majority rule supposedly does), but without justification.

It is thus especially ironic that the letter writer chides Krugman and condescendingly tells him that liberals must "work harder to convince us in flyover country that your policy beliefs are the best way forward for our nation."  The question is why, other than the undemocratic design of the Senate, liberals should have to work harder to convince Missourians and Alabamans to come around to their point of view, when the majority of the country already has seen the light.

Moreover, Primus points out descriptively that there really is no content to the presumption that big states and small states have identifiably different interests.  What exactly does it mean to say that, for example, Oregon has different interests than California -- interests so fragile and threatened by majority rule that Oregon deserves to be over-represented in the national legislature?  States do not have interests, Primus says.  Regions do.

And that brings me at long last to my modest contribution to the discussion.  We have already had this debate before, and the Supreme Court ruled 8-to-1 in 1964, in Reynolds v. Sims, that state legislative districts (both lower and upper houses) must be drawn so that they have roughly equal populations.  Both Berkeley Law's Dean Erwin Chemerinsky and NYU Professor Rick Pildes have called that case "the best Supreme Court decision since 1960" for good reason.  Pildes added that Reynolds was "perhaps the most radical decision in [the Court's] history[,] requir[ing] every legislature in the United States, and the U.S. Congress, to be dramatically restructured so that representatives to any elected body represent the same number of people."

If we can make judgments based both on one's enemies as well as one's friends, it is notable that Reynolds came in for harsh treatment from Robert Bork, who saw no problem with legislative districts being based on "rocks and trees" rather than people.  The idea that the founding generation approved more generally of this anti-democratic concept by virtue of having accepted the 2SPS rule simply misunderstands the nature of political compromise -- especially at the founding of a new nation.  It is also profoundly un-American -- and illogical -- to say that any deviation from democracy justifies every deviation from democracy.

Notably, a Republican Senator from Illinois criticized Reynolds at the time by saying that "the 6 million citizens of the Chicago area would hold sway in the Illinois Legislature without consideration of the problems of their 4 million fellows who are scattered in 100 other counties. Under the Court's new decree, California could be dominated by Los Angeles and San Francisco; Michigan by Detroit."  In short, then, the argument is that four million Illinoisans have a fundamental right to greater political power than the other six million have, simply because of where they live.

But even beyond the absurdity of that argument as a matter of political philosophy, we now have over a half-century of experience to test whether the people in the big cities have trampled the interests of those in small towns and rural areas.  Is Michigan's political system so dominated by Detroit that its policies "ignore" of the rest of the state, as the letter writer in The Times put it (twice)?  And if Michigan is a bad example because of the extreme decline in Detroit's population, what about Illinois and California or other states?

It is not enough to say that some state's legislatures are majority-Democratic, because the pro-2SPS argument is that majority-Democratic legislatures will systematically ignore the interests of everyone but the people in the population centers.  Have they?  When I lived near Boston, I certainly recall hearing about complaints from other parts of the Commonwealth that Boston dominated the State House, but there was simply no evidence that the legislature was making decisions "without consideration of the problems of" Springfield, Worcester, Lowell, the Pioneer Valley, or the Berkshires.

Similarly, are California's agricultural interests being ignored?  It seems unlikely that they are, and in any case, no one has made a systematic case that these states (some of which still swing Republican in state-wide races) are politically harming non-city interests.  And to adapt Primus's descriptive argument, it is not at all clear that "city interests" and "rural interests" are even coherent categories.  Do, say, Grosse Pointe and its wealthy, populous suburbs have more policy interests in common with Detroit or with The Thumb?  Is Montgomery County, Maryland more aligned with the City of Baltimore or its suburbs or the Eastern Shore?

No matter the answers to those questions, would state governments' policy priorities be different if they did still have senators representing rocks and trees?  Of course they would, but that is merely evidence of the point that Primus and Dorf emphasize, which is that any change in political representation will surely change political decisions.  What is needed is an affirmative argument that the decisions that would be made by legislators from non-proportional districts are to be preferred to something more closely resembling actual democracy.  And there still are no such arguments.

In short, we need not speculate about what happens when large political jurisdictions that include cities and rural areas are forced to honor the one-person-one-vote principle.  In the laboratory of the states, we have seen that different states have different political cultures that produce different partisan mixes in their legislatures.  If the U.S. Senate were turned into a democratically representative body, the American people as a whole would be more accurately represented.  But the people who currently benefit from their unwarranted advantage will never allow us to see what that world would look like.

1 comment:

Joe said...

TBH, except as a matter of trying to make lemons out of lemonade since we appear to be stuck with it, I'm not sure how much at all there is to a case to retain the U.S. Senate as we now have it. So, on some level, I sorta feel Prof. Dorf's position is a devil's advocate position.