Whom does the Senate represent?

The above question is incorrectly framed. We ought to ask not who but what does the Senate represent. The answer is the 50 states. The Constitution says that each state, no matter its geographical or demographic size, sends two senators to the Capitol. Senators do not represent the people. As law professor Sanford Levinson showed in his 2006 book, “Our Undemocratic Constitution,” this arrangement extends to two other branches of government.

A president may not reflect the people’s will when the electoral vote fails to match the popular vote. George W. Bush in 2000 and Donald Trump 16 years later lost the popular vote, but won the presidency. This also occurred in the elections of 1824, 1876, and 1888. The same is true for the federal courts, including the Supreme Court. The president nominates judges, and the Senate alone has the constitutional authority to confirm them or not. The people have no say.

The Constitution makes the House of Representatives the sole democratic institution: The people in their districts directly elect its members. Gerrymandering the districts to reflect the will of a majority in the state legislatures, however, undermines democracy in this institution as well. Case in point: Registered Republicans make up 48.9 percent of the Wisconsin population, but the Republican Party controls 64 of 99 seats through gerrymandering. Democrats engage in gerrymandering too, but not as skillfully as Republicans.

The Senate today is highly unrepresentative of the American people. One example: California has 68 times the population of Wyoming, but both states have two senators. As Norm Ornstein, a political scientist at the American Enterprise Institute, has often pointed out, the hole that the framers of the Constitution dug in 1787 is only getting deeper and deeper. “By 2040 or so, 70 percent of Americans will live in 15 states. Meaning 30 percent will choose 70 senators. And the 30 percent will be older, whiter, more rural, more male than the 70 percent. Unsettling to say the least.”

The Weldon Cooper Center for Public Service at the University of Virginia and David S. Birdsell, the dean of the school of public affairs at Baruch College, CUNY, have confirmed this statistic in population studies (see bit.ly/USdemographicsmap and bit.ly/globalthreats).

Ari Berman, author of “Give Us the Ballot: The Modern Struggle for Voting Rights in America,” observes that this discrepancy played out in the recent failed impeachment trial of former President Donald Trump: “Senators voting to impeach represent 61.6 percent of Americans (202 million); senators voting to acquit represent 38.2 percent of Americans (125 million).” (See bit.ly/Impeachdata).

The reason for this lies in the debates at the 1787 Constitutional Convention in Philadelphia. Delegates from the small states feared domination by the larger ones. They even threatened to walk out. The result was the so-called Great Compromise.

The small states initially demanded that representation in both houses of Congress be based on an equal footing. In October 1787, James Madison told Thomas Jefferson, then serving as the American ambassador to France, that “the little states insisted on retaining their equality in both branches, unless a compleat [sic] abolition of the state governments should take place; and made an equality in the Senate a sine qua non.” For Madison from Virginia, a large state, and others at the convention, at least one branch of the government had to represent the people. Otherwise, that outcome would undermine the very meaning of a democratic republic. 

Madison knew the states were here to stay as he was developing his science of federalism. So today, some states, like Delaware, Montana, and Wyoming have more senators (two) than they have representatives (one) because their respective populations are so small. Not everyone was at that time happy with this decision. As Madison noted, “It ended in the compromise … very much to the dissatisfaction of several members from the large states.”

To complicate matters even more, since the 19th century, the Senate has recognized the filibuster, so any senator may extend debate to stall or prevent a vote on a measure unless the Senate can muster a supermajority called a cloture. Filibustering is not in the Constitution. Senate rules created it. At one time, it required a senator and his colleagues to speak nonstop for hours upon hours. Today all a senator need do is to object to a measure, and everything is halted. Originally, cloture required 67 votes. Today it stands at 60.

The filibuster originally referred to someone engaged in an unauthorized war against a nation: In 1807, former Vice President Aaron Burr was accused of warring against the U.S. (He was acquitted).

So what to do about the unrepresentative nature of the Senate? Or presidential elections or the appointment of judges to the federal courts? The answer lies in the ingrained history of our nation: We can and will complain that the people should be able to voice their preferences by a democratic vote. But that will never happen. It takes a constitutional amendment to reform the election of the president and senators and the appointment of judges, and a rules change to end or modify the filibuster. For the time being, we are stuck with this undemocratic, constitutional arrangement.

Jack Fruchtman, who lives in Aquinnah, taught constitutional law and politics for more than 40 years.