More on the Unprincipled Nature of the Senate: Further Conversation with Professor Dorf (Guest post by Richard Primus)

by Richard Primus

In a series of blog posts (here, here, and here), Michael Dorf and I have been conversing about the justifiability of each state’s getting two representatives in the U.S. Senate.  As a general matter, neither of us argues that the current system is justified (except in the brute sense that current law requires it).  That’s not because we think that the only justifiable ground for allocating representatives in a legislature is on the basis of population (that is, on the basis of the principle we know as “one person, one vote,” and which I’ll call OPOV for short).  We both think that other factors could, in appropriate circumstances, justify departures from OPOV.  Instead, our sense that the current system for the Senate is unjustified rests on our sense that the Senate’s enormous deviation from OPOV is not justified by any argument applicable to the facts of this particular case.  In other words, we don’t think that under all imaginable circumstances every representative in a legislative body must represent a constituency of the same size as every other representative, so far as mathematically possible.  But we also don’t think that anything about the United States in 2018 justifies a system in which some senators have nearly 70 times as many constituents as other senators, and in which more than one-third of the entire represented population elects just eight out of a hundred senators.  

That said, Dorf and I are at least emphasizing different things.  He is identifying things that might in principle be reasons justifying deviations from OPOV.  I am more concerned with showing that none of those reasons helps justify the U.S. Senate, even if some of them might justify deviations from OPOV in some legislature somewhere.  But this contrast between us might make our conversation more of a cooperative effort than a real debate.  To persuade people that the Senate makes no sense, it’s necessary to shoot down a lot of possible defenses of the existing system.  One way to describe this conversation is to say that Dorf is identifying possible defenses—defenses that would need to be rejected if people were to be persuaded that the Senate should be reapportioned—and I’m then explaining why those defenses should be rejected.

In his most recent post, Dorf raises three considerations that might support deviations from OPOV.  One is about the interests of small states, and one is about federalism, and one is about something like Burkean humility.  So I’ll say something about why none of those considerations, as applied to the United States, justifies giving each state two senators.  I do not argue that those sorts of considerations could never justify deviations from OPOV anywhere—just that they don’t justify, or even contribute a little bit to justifying, the present system for allocating senators among states

(1) The interests of small states.  Dorf’s point about the interests of small states, which he describes as a prima facie plausible justification for deviations from OPOV, is that allowing each state the same number of senators helps prevent the interests of big states from dominating the interests of small states.  I think this idea does important work in persuading people not just that deviations from OPOV might be permissible in principle but also that the actual system of having two senators from each state makes sense.  So it’s important to specify clearly why this idea cannot justify the current system for apportioning senators.  Because it can’t.

It’s undeniably true, of course, that giving each state the same number of senators makes each small-state electorate more powerful than it would be under OPOV.  But it doesn’t follow that the current system prevents “the interests of small states” from being dominated by “the interests of big states,” in part because small states and big states are (with exceptions addressed below) not helpfully thought of as rival interest groups.  Nor is it clear why preventing the interests of small states from being dominated by those of big states—if that was in fact occurring—should be considered a justification, even of a prima facie kind.  Someone’s interests are going to be dominated by someone else’s, and it requires an argument to explain why small-state interests (if they existed) would be entitled to a special exemption from that potential fate.

* * *

Any allocation other than OPOV strengthens the hand of some minority.  Imagine, for example, a Senate that was not geographically based at all; instead, voters whose last names started with A would elect two senators, and voters whose last names started with B would elect two senators, and so on for each letter of the alphabet.  The vote of each voter whose last name started with Q or X would thus be worth a lot more than the vote of each voter whose name started with M or S.  Put differently, voters whose last names started with Q or X would be better positioned than they would under OPOV to defend their interests in the face of the contrary interests of voters whose names started with M or S.  But that wouldn’t provide any sort of justification for the system, because voters whose last names start with Q and X do not comprise an interest group with a legitimate claim to resisting the outcome of majoritarian politics.  

The question, then, is why we should think of the small states as the possessors of shared interests with a legitimate claim to special protection.  Ever since the Constitutional Convention, people have spoken as if the small states do have such interests, and this rationale has accordingly been used to defend the apportionment of senators.  But I doubt this line of argument ever made sense.  Neither then nor now, nor at any time in between, have small states or big states been united by shared substantive interests.  

At the Convention, the group we think of as the big states had three members: Virginia, Massachusetts, and Pennsylvania.  Those three states were not a natural interest group then any more than California, Texas, and Florida are a natural interest group now.  The three big states in 1787 had different political cultures and different economic interests.  On trade, on slavery, on the Western Territory, on the future of relations with Great Britain, the three big states in 1787 were in conflict.  Massachusetts shared more interests with Connecticut (a small state) than with Virginia (a big one).  Nor did the small states share interests as such: Georgia, Delaware, and New Hampshire wanted different things in 1787, just as Vermont and Wyoming do today.  Madison at the Convention recognized perfectly well that the idea that the big states were a cohesive interest group was a ruse designed to bolster the small states in their bid for additional power.  To the extent that groups of states had shared interests that differed from those of other groups of states, he recognized, it was on the basis of geographical section, not size.

The only issue on which the big states and the small states were interest groups at the Founding, or are so now, is the issue of the allocation of power itself.  That is, the small states prefer a system in which each small state has more power, relative to the nation as a whole.  But “We want more power” can’t be the kind of interest that constitutes an interest group whose interests deserve special protection.  After all, any deviation from OPOV creates an interest group united by its preference for maintaining its disproportionate power.  Per the hypothetical example above, people whose last names start with Q or X have a common interest in allocating representation on the basis of the first letters of people’s last names.  So the interest in having each state get the same power in the senate can’t be the kind of interest that justifies giving each state that power.  The arrangement would only be justified as a means of protecting small-state interests if the small states were going to use that power to protect some other interest—some legitimate substantive interest—that deserved special protection.

Is there some such shared interest of small states?  The answer may well be no.  And if there isn’t, it’s hard to see how shifting the Senate to OPOV would bring about the domination of small-state interests by the large states.  

Suppose that the Senate were reapportioned to conform with OPOV.  For present purposes, imagine that the reapportionment involved the creation of one hundred districts, each with a population of a little more than three million, each of which would elect one senator every six years.  (Yes, that means that some states would not elect their own senators.  Their voters would be combined into senatorial districts with voters from other states, much as judicial districts from different states are now combined into multistate circuits without otherwise affecting the separateness of the relevant states.)  What would the consequences be for small-state interests?  If the reapportioned Senate had a Democratic majority, the preferences of the average Idaho voter (on tax policy, health care, abortion, climate change, international relations, and so on) might be served less well, but the preferences of the average Rhode Island voter might be served better.  And to the extent that the preferences of the average South Dakota voter wound up on the losing side, the defeats would come not at the hands of a big-state steamroller.  They would come because one coalition of voters from big and small states (say, California and New York and Hawaii and Vermont) outvoted a different coalition of voters from big and small states (say, Texas and Florida and Alaska and Wyoming).  And vice versa in all respects if the reapportioned Senate had a Republican majority.  Whether the voters of any particular small state came out ahead or behind would depend on whether they were part of a national majority—just as it would for the voters of any particular big state.  

It does not follow that reapportioning the Senate would not change federal policy.  On the contrary, federal policy would probably change a lot.  Two of the predictable patterns of change might seem like they implicate the problem of big-state interests dominating small-state interests.  The first is about the distribution of federal spending under general appropriation statutes.  At present, a disproportionate share of federal spending occurs in small states.  That system would probably disappear.  But an interest in maintaining more per-person spending in one’s own state, like the sheer interest in having more political power, is not the kind of interest that could justify the current system.  It’s hard to see why the people of Oklahoma deserve to have more federal dollars per person spent in their state than in Texas.  Second, reapportioning the Senate would shift power significantly toward urban areas, and that shift might seem to tilt the playing field dramatically toward the interests of big states.  Indeed, most of what makes big states big is that they include America’s major cities.  (Each of the ten biggest metropolitan areas in the United States is bigger than more than half of the states.)  

The urban-rural axis is probably the single most important dimension along which federal policy would shift if the Senate were reapportioned to conform to OPOV.  If the Senate were reapportioned in that way, we should expect (for example) more federal money to be spent on mass transit and less on agricultural subsidies.  Social policy would shift away toward those of the average urban voter, and that shift would probably be significant, given the contrast between the older, whiter, more Christian population of rural America and the younger and more racially and religiously diverse population of urban America.  But for two reasons, an interest in preventing this shift does not seem like a reasonable justification, even prima facie, for giving each state the same number of senators.  

The first reason, which is normative, is that it isn’t clear why rural voters, rather than (say) poor voters or young voters or voters whose first language is not English, are entitled to special solicitude in the political process.  If any groups are entitled to such solicitude, then there are plausible cases to be made for each of those other groups—cases at least as good as any case that could be made for rural voters.  And one cannot defend a choice to give special protection to rural voters but not to (say) those other groups on the ground that it is better to protect some minority interests than to protect none, because the very measures that inflate rural political power relative to urban political power harm those other groups.  A normative argument for why it makes sense to privilege rural interests over all of those other minority interests is needed, and I don’t see an obvious one being offered.

The second reason, which is descriptive, is that it is a mistake to equate an increase in the political power of urban areas with a heightened ability of “the interests of the big states” to dominate “the interests of the small states.”  Such an equation would be misleading in two ways: first, because an increase in urban power would not mean that the interests of small states as such were in greater peril, and second because it would not mean that the interests of big states as such were being better vindicated.  

Several small states are not especially rural.  Hawaii, Rhode Island, Nevada, and (yes) Utah, for example, are considerably more urban than the national average, and more urban than five of the ten biggest states (Texas, Ohio, Georgia, North Carolina, and Michigan).  And it is not at all clear that the voters of Hawaii or Rhode Island would feel that their interests were less well served by the reconfigured Senate than by the present one.  Their states would likely experience drops in per-capita federal spending, but federal policy overall might be more to their liking, and many voters care more about general policy issues than about where the money is spent.  

Conversely, the fact that the big states are home to the biggest metropolitan areas does not mean that the interests of the big cities are tantamount to the interests of the big states.  All of the big states have significant populations outside the biggest cities.  Within most or perhaps all big states, the big-city vote leans Democratic and the rural vote leans Republican—and in several big states, the rural vote is regularly part of the winning coalition in statewide elections.  Houston, Dallas, San Antonio, and Austin vote for Beto O’Rourke, but Texas as a whole re-elects Ted Cruz.  The point generalizes: in the next Congress, the twenty senators from the ten biggest states will be split evenly between the parties, with ten Democrats and ten Republicans.  So it seems much too quick to say that shifting federal policy toward the priorities of the big metropolitan areas is in the interests of the big states as such, because it doesn’t make sense to say that such a shift is in the interest of Texas (or Florida, or Pennsylvania, or Ohio, or Georgia, each of which is relevantly similar).  It’s much more accurate to say that those big states are internally divided between big-city interests and other interests, such that a shift of federal power in a metropolitan direction would be good for some constituencies within the state and bad for others.

To be sure, one significant effect of electing one senator each from a hundred equipopulous districts would be a shift of political power toward the interests of metropolitan areas.  But calling that a shift from small to big states masks what it would really be: a shift in favor of the biggest cities, at the expense of non-city voters in big states as well as small ones.  It is not “small-state interests” that stand to lose: it is the interests of rural voters in all states, big as well as small.  

If the small-state/big-state dichotomy is a poor proxy for the rural/urban divide, and if there is no good reason why the interests of rural voters (rather than young voters or poor voters or voters whose first language is not English) are entitled to special solicitude in the political process, then it is hard to see why giving each state the same number of senators can be justified on the grounds that it prevents the interests of small states from being dominated by the interests of big states.  Yes, fewer federal dollars would flow to small states, but there is no general reason to think that people in small states would wind up with fewer federal dollars per capita than people in big states.  Yes, federal policy would be less solicitous of the rural voters of Wyoming and Vermont than it presently is.  But it is hard to see why those rural voters deserve more policy solicitude per capita than the rural voters of inland California, or upstate New York, or the black rural voters of Mississippi, who are largely frozen out of the Senate at present—or than the urban voters of Memphis and Atlanta.  The idea that there are competing interests of small and big states as such is simply too crude to be helpful, and the fear that certain voters would have their legitimate interests ignored turns out to be mostly indistinguishable from a fear that those voters would have their interests weighted in the same way that everyone else would.  

This last point bears a bit of unpacking.  The average Wyoming voter would be entirely rational to think that a Senate apportioned on the basis of OPOV would pay less attention to his preferences than the Senate currently does.  Indeed, the prospect of his state’s going from electing 2% of the chamber’s members to becoming just one-sixth of the electorate for a single senator might seem catastrophic.  Why, this voter might think, would anyone pay attention to my interests, or those of my community, if my (our) voting power is so small?  But the answer to that question is straightforward.  The six hundred thousand people living in Wyoming will have influence in the Senate roughly comparable to six hundred thousand people living anywhere else.  The question, still unanswered, is why anyone should think that those six hundred thousand people deserve more influence than six hundred thousand people in the Rio Grande Valley, or in Queens, or in downstate Illinois.

(2) Judicial federalism.  In my previous post, I argued that nothing about the architecture of federalism would change if the Senate were reapportioned.  I put the crux of the matter this way:
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.
In his most recent post, Dorf quotes this language and raises a question about it, as follows:
[T]o 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.

Note that Dorf is not here arguing that Garcia and similar decisions sensibly rest on the idea that each state’s having two senators helps safeguard the architecture of federalism.  That’s to his credit, I think, because that part of the Garcia analysis is irrational: as I argued in my previous post, the fact that each state elects two senators does nothing distinctive to protect federalism.  Instead, Dorf is arguing that even if that portion of Garcia’s reasoning doesn’t make sense, judges might think it makes sense, and if they do, reapportioning the Senate might prompt them to think that federalism had lost an important support, thus prompting them to revisit Garcia and things like Garcia.

I’m not worried.  To be sure, Dorf is right that people sometimes act on ideas even when those ideas make no sense, so the fact that giving each state two senators does nothing to sustain the architecture of federalism does not prove that judges don’t think it does.  As it happens, though, I doubt many judges really think that doctrines like the one announced in Garcia rest on the composition of the Senate.  I suspect that most judges either (a) think that the Garcia-like ideas are sensible even without that prop, or (b) are skeptical of Garcia as it is.  But there is a deeper reason why I don’t think a reapportionment of the Senate would prompt a revisiting of federalism doctrine of the kind Dorf imagines.  It is a matter of the conditions that would have to obtain for the Senate to be reapportioned.

Dorf’s scenario might be plausible if we woke up tomorrow and discover that the Senate had been reapportioned.  The judges reacting to the change would be judges as they exist today.  But if we are going to imagine what the judiciary might do in response to a reapportionment of the Senate, we have to imagine not the judiciary as it exists today but rather a judiciary that had lived through the process of change leading to reapportionment.

At present, the apportionment of senators is sustained in substantial part by hazy traditional thinking about a cluster of issues, federalism included.  Given the text of the Constitution and the brute reality that people don’t like giving up power, it would be extremely difficult to change the composition of the Senate.  It could only be done if accompanied by a transformatively successful campaign to get Americans to stop thinking irrational things about the Senate.  In a world where conventional thinking about the Senate had improved far enough to enable a reapportionment, I’d think that the federal judiciary would be able to think clearly enough about the Senate to know that Blackmun’s argument about the Senate’s role in federalism is untenable.

In other words, if the American political class in general came to re-understand the Senate in a way that brought about reapportionment, the transformation would involve an internalization of the idea that the present system of apportionment does no important work for federalism.  In a world where the American political class in general had internalized this important change in understandings, it’s hard to see why the specific subset of that decisionmaking class that holds judicial office wouldn’t get it, too.  The idea that having two senators from each state is an important support for federalism would have been consigned to the ash heap.  So it’s hard to imagine circumstances under which reapportioning the Senate would provoke the judiciary to act on the (mistaken) idea that a Senate with two members from each state does important work for process federalism.

(There’s one other possibility, of course: a successful movement to reform the Senate could succeed even if people continued to think that the current system for choosing senators is important for federalism if people downgraded the importance of federalism generally.  This would be less rational than the scenario I described above, but that doesn’t mean it’s impossible.  But it makes no present difference.  In this scenario, it’s hard to see why a judiciary that had lived through the change in attitudes would be motivated to alter doctrines in order to make federalism stronger.)

(3) Burkean humility.  Finally, Dorf notes that several other federal systems—Canada, Germany, Australia—have upper houses whose apportionment is geographically based and does not conform to OPOV (though in none of them does the deviation get anywhere close to the 70-1 ratio that exists between California and Wyoming).  On the theory that a practice engaged in over time by many decisionmakers should not be too lightly discarded, Dorf suggests that the idea of something like the Senate might have something going for it.

I do not know enough about the origins and functions of the upper houses in those other systems to speak authoritatively about the conditions that might make their systems of apportionment sensible.  As noted above, it’s not my view that every legislative house everywhere must conform strictly to OPOV.  And I’m all for Burkean humility, in the proper proportion, by which I mean that it’s worth pausing to think carefully before discarding a widespread or inherited practice.  But when one has considered the question carefully and decided that the practice under scrutiny cannot be justified, I’m all for forward-looking rationality.  

On that point, I think Dorf and I are in agreement.  He says not that Burkean humility provides an adequate justification for the Senate but merely that where there is a prima facie plausible justification for a practice, the burden of persuasion should rest on the party advocating change.  I can sign on to that formulation.  I would then apply it to the present case by saying that all of the justifications offered for giving each state two Senators (other than the brute fact that that’s now the rule) are easily overcome.  

So for example, one could say (with Dorf) that an interest in preventing the interests of big states from dominating the interests of small states provides a prima facie plausible justification, thus shifting the burden of persuasion to those who advocate reform.  If so, the recognition that no such legitimate interest actually makes sense of the current system (as explained above) suffices either to carry the burden of persuasion or, if you prefer, to render the ostensibly plausible prima facie justification implausible.  It comes to the same thing.

And what it comes to is this: the Senate is apportioned at it is due to a specific historical contingency, that is, because a certain set of people a long time ago extorted something that was to their benefit.  Once the extorted terms were written into the Constitution, they became difficult to dislodge, partly because it’s hard to get people to give up power and partly because generations of Americans have resolved the cognitive dissonance that would result from admitting the truth about the Senate by spinning and believing rationalizations, rationalizations that have become orthodox within the wider culture.  But the rationalizations do not bear scrutiny.  Having two senators from each state is not justifiable, and we should be willing to say so.  On that bottom-line point, it seems that Dorf and I agree.