A Constitutional Non-Starter

Professor Larry Sabato of the University of Virginia’s Center for Politics has written a book entitled “A More Perfect Constitution” with 23 proposals for revising the Constitution in order “to restore equity for ordinary citizens” and reform “outmoded provisions.”

Among these is this proposal:

Expand the Senate to 136 members to be more representative: Grant the 10 most populous states 2 additional Senators, the 15 next most populous states 1 additional Senator, and the District of Columbia 1 Senator.

Professor Sabato explains this proposal further (the emphasis is his):

In the early years of the Republic, the population ratio of the most populated state, Virginia, and the least populated state, Delaware, was 12 to 1. In 2004 that ratio was an incredible 70 to 1 between California and tiny Wyoming. Therefore, the current Senate is absurdly skewed in the direction of the small states. Theoretically, if the twenty-six smallest states held together on all votes, they would control the U.S. Senate, with a total of just under 17 percent of the country’s population!

Additionally, on most crucial policy votes, such as the Iraq resolution example that opened this section, the arcane rules of the Senate permit 41 of the 100 senators to prevent a final vote on the floor by means of a filibuster–that is, continuous debate. Therefore, just 21 states can provide the 41 senators necessary to block action. The 21 most lightly populated states comprise a mere 11.2 percent of the nation’s population as the Senate is currently constituted.

The key to keep in mind is that under the Constitution’s bicameral system for the legislature, nothing passes without Senate assent. Therefore, the Congress has a one-house veto on legislation, and to control the Senate is to control the legislative outcome, and indeed much of what the federal government actually does. James Madison foresaw this dilemma, and he vigorously argued, during the Constitutional Convention, for proportional representation by population in the Senate, not just the House. Madison‘s fears have been validated as the gap between small and large states has grown to the point that states with fifty-one times the population as others have the same representation.

Let’s forget for a moment that the smaller states ratifying such an amendment would be like the turkeys voting for Thanksgiving and examine Professor Sabato’s contention that population/representation disparities have grown. In truth, the Senate has always been “absurdly skewed in the direction of the small states” to an extent little different from the present.

Professor Sabato’s own University of Virginia has helpfully put historical census data online. Just after the 1790 census, with Vermont and Kentucky admitted as states, a majority of Senators (16 of 30) came from states with 24% of the population. Fifty years later, 28 of 52 Senators came from states with 26% of the population. In 1900, 46 of 90 Senators came from states with just 19% of the population. And if you think that today’s 70 to 1 ratio of the populations of California and Wyoming is bad, a century ago the ratio between New York’s population and that of Nevada was an incredible 172.

How troubling have these disparities been in the history of the Republic. 37 states have been admitted to the Union since the Constitution was established. Most were admitted with sparse populations relative to those of the larger states. In some cases the debate over their admittance has been controversial: over issues of slavery (Missouri, Texas, Kansas), over religion (Utah), over economic viability and remoteness (Alaska) and because of out-and-out racism (Hawaii). But that admitting a territory as a state would increase the skew that Professor Sabato describes has never, as far as I know, been a bone of contention.

If this disparity is really a problem, the less constitutionally subversive solution would be to divide larger states into a number of smaller ones, just as West Virginia and Kentucky were split from Virginia and Maine was hived off Massachusetts.

And yet the population of states waxes and wanes. Pennsylvania, which had 36 representatives between 1913 and 1933, is down to 19 and will probably lose more after the 2010 census. At the beginning of World War II, Florida had just 5 representatives; now it has 25. Who knows? Maybe there’s hope for Wyoming yet.

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