The US Senate: Where Democracy Goes to Die

by Corey Robin on March 12, 2013

Every once in a while I teach constitutional law, and when I do, I pose to my students the following question: What if the Senate apportioned votes not on the basis of states but on the basis of race? That is, rather than each state getting two votes in the Senate, what if each racial or ethnic group listed in the US Census got two votes instead?

Regardless of race, almost all of the students freak out at the suggestion. It’s undemocratic, they cry! When I point out that the Senate is already undemocratic—the vote of any Wyomian is worth vastly more than the vote of each New Yorker—they say, yeah, but that’s different: small states need protection from large states. And what about historically subjugated or oppressed minorities, I ask? Or what about the fact that one of the major intellectual moves, if not completely successful coups, of Madison and some of the Framers was to disaggregate or disassemble the interests of a state into the interests of its individual citizens. As Ben Franklin said at the Constitutional Convention, “The Interest of a State is made up of the interests of its individual members.  If they are not injured, the State is not injured.” The students are seldom moved.

Then I point out that the very opposition they’re drawing—between representation on the basis of race versus representation on the basis of states—is itself confounded by the history of the ratification debate over the Constitution and the development of slavery and white supremacy in this country.

As Jack Rakove argued in Original Meanings, one of the reasons some delegates from large states ultimately came around to the idea of protecting the interests of small states was that they realized that an equal, if not more powerful, interest than mere population size bound delegate to delegate, state to state: slavery. Virginia had far more in common with South Carolina than it did with Massachussets, a fact that later events would go onto confirm. In Rakove’s words:

The more the delegates examined the apportionment of the lower house [which resulted in the infamous 3/5 clause], the more weight they gave to considerations of regional security. Rather than treat sectional differences as an alternative and superior description of the real interests at play in American politics, the delegates saw them instead as an additional conflict that had to be accommodated in order for the Union to endure. The apportionment issue confirmed the claims that the small states had made all along. It called attention not to the way in which an extended republic could protect all interests but to the need to safeguard the conspicuous interest of North and South. This defensive orientation in turn enabled even some large-state delegates to find merit in an equal-state vote.


As Madison, a firm opponent of representation by states, would argue at the Convention:

 

It seemed now to be pretty well understood that the real difference of interests lay, not between large and small but between the Northern and Southern States. The institution of slavery and its consequences formed the line of discrimination.”


True, Madison made this claim in the service of his argument against representation by states, but for others, his claim pushed in the opposite direction: a pluralism of interests in an extensive republic was not, as Madison claimed in Federalist 10, enough to protect the interests of a wealthy propertied minority.  Something more—the protection of group interests in the Senate—was required. (Which is why, incidentally, I’m always amused by conservatives’ horror at the notion of group rights: what do they think the Senate is all about if not the protection of group rights? This is not to say that there aren’t principled reasons to oppose group rights; I’m commenting merely on the scandalized tone of the opposition.)

And when one considers how critical the Senate has been to the protection of both slavery and Jim Crow—measures against both institutions repeatedly passed the House, only to be stymied in the Senate, where the interests of certain types of minorities are more protected than others—the distinction between race and state size becomes even harder to sustain. Though the Senate often gets held up as the institution for the protection of minority rights against majoritarian tyranny, the minorities it protects are often not the powerless or the dissenters of yore and lore.

Indeed, for all the justified disgust with Emory University President James Wagner’s recent celebration of the 3/5 Clause, virtually no one ever criticizes the Senate, even though its contribution to the maintenance of white supremacy, over the long course of American history, has been far greater than the 3/5 Clause, which was nullified by the 14th Amendment.

This is all by way of a long introduction to a terrific article in the New York Times by Adam Liptak on just this issue of the undemocratic nature of the Senate, and some of the racial dimensions of that un-democracy. Just a few excerpts:

Vermont’s 625,000 residents have two United States senators, and so do New York’s 19 million. That means that a Vermonter has 30 times the voting power in the Senate of a New Yorker just over the state line — the biggest inequality between two adjacent states. The nation’s largest gap, between Wyoming and California, is more than double that.


The difference in the fortunes of Rutland and Washington Counties reflects the growing disparity in their citizens’ voting power, and it is not an anomaly. The Constitution has always given residents of states with small populations a lift, but the size and importance of the gap has grown markedly in recent decades, in ways the framers probably never anticipated. It affects the political dynamic of issues as varied as gun control, immigration and campaign finance.


In response, lawmakers, lawyers and watchdog groups have begun pushing for change. A lawsuit to curb the small-state advantage in the Senate’s rules is moving through the courts. The Senate has already made modest changes to rules concerning the filibuster, which has particularly benefited senators from small states. And eight states and the District of Columbia have endorsed a proposal to reduce the chances that the small-state advantage in the Electoral College will allow a loser of the popular vote to win the presidency.



What is certain is that the power of the smaller states is large and growing. Political scientists call it a striking exception to the democratic principle of “one person, one vote.” Indeed, they say, the Senate may be the least democratic legislative chamber in any developed nation.



Behind the growth of the advantage is an increase in population gap between large and small states, with large states adding many more people than small ones in the last half-century. There is a widening demographic split, too, with the larger states becoming more urban and liberal, and the smaller ones remaining rural and conservative, which lends a new significance to the disparity in their political power.


The threat of the filibuster in the Senate, which has become far more common than in past decades, plays a role, too. Research by two political scientists, Lauren C. Bell and L. Marvin Overby, has found that small-state senators, often in leadership positions, have amplified their power by using the filibuster more often than their large-state counterparts.


Beyond influencing government spending, these shifts generally benefit conservative causes and hurt liberal ones. When small states block or shape legislation backed by senators representing a majority of Americans, most of the senators on the winning side tend to be Republicans, because Republicans disproportionately live in small states and Democrats, especially African-Americans and Latinos, are more likely to live in large states like California, New York, Florida and Illinois. Among the nation’s five smallest states, only Vermont tilts liberal, while Alaska, Wyoming and the Dakotas have each voted Republican in every presidential election since 1968.


The article is long, but it’s worth the entire read. A model of how good journalism can incorporate the insights of historical and institutionalist political science (and not just the number-crunching kind).

{ 194 comments }

1

Josh G. 03.12.13 at 4:00 pm

Hendrik Hertzberg’s great review of Robert Dahl’s equally great book contains some more excellent takedowns of the undemocratic Senate and other flawed features of the US Constitution.

2

Corey Robin 03.12.13 at 4:08 pm

That is a great review, thanks! He’s also got that great quote from Hamilton I should have used as well: “”As states are a collection of individual men, which ought we to respect most, the rights of the people composing them, or of the artificial beings resulting from the composition? Nothing could be more preposterous or absurd than to sacrifice the former to the latter. It has been said that if the smaller states renounce their equality, they renounce at the same time their liberty. The truth is it is a contest for power, not for liberty. Will the men composing the small states be less free than those composing the larger?”

3

Billikin 03.12.13 at 4:19 pm

Well, gee, if corporations are people, why not states? ;)

4

James 03.12.13 at 4:28 pm

The catch is this is already done to some extent in the House. The Voting Rights Act of 1965 proportions congressional districts in several southern states with the intention of producing congressional districts based on race. I am certain your students are officially pro VRA.

If the Senate was allocated by race, how do you deal with proportions that do not results in a whole senate seat? Rounding up or down adversely affects the relative power of the racial senate seat . This also results in taking away relative racial power in Senate votes from Pacific Islanders , Inuit, and Hispanics , and American Indians to transfer this to African Americans, Indian Americans and Asian Americans. Are you purposing increasing the Senate size?

5

Corey Robin 03.12.13 at 4:32 pm

James at 4: Just to be clear, I wasn’t really recommending race-based apportionment as an alternative — much less wanting to explore the pragmatic difficulties or consequences of such a scheme — so much as trying to tease out the theoretical underpinnings that would justify one scheme of representation as opposed to another. And more generally pointing out just how undemocratic the Senate actually is.

6

david 03.12.13 at 4:35 pm

How do your students normally respond?

7

Bill Murray 03.12.13 at 4:37 pm

This seems to me a bit of missing the forest for the trees. Sure it might help if the Senate votes were split differently or if there were no Senate, but if this just results in the Senate being more like the House that doesn’t seem to be much of a win. Neither group is particularly representative of their constituents and I don’t see how changing the Senate alters this at all.

8

Hector_St_Clare 03.12.13 at 4:50 pm

For what it’s worth, India reserves a certain number of seats in Parliament for members of historically oppressed castes or tribes. (Caste isn’t perfectly analogous to race/ethnicity, but it has at least as much in common with race/ethnicity as it does with social class- the recent studies indicate that caste groups really are genetically distinct). Lebanon famously does too, for religious groupings, but I guess there you can convert so it’s not quite analogous to race.

http://en.wikipedia.org/wiki/Reserved_political_positions_in_India

9

Jerry Vinokurov 03.12.13 at 4:55 pm

If states are artificial boundaries that should have no significance with regards to vote apportionment, then districts doubly so. We currently have a situation where Republicans have something like an effective 7% advantage in the house due to the fact that they were able to redraw districts at an opportune time. At least the boundaries of states don’t change every 10 years.

10

ajay 03.12.13 at 4:56 pm

If the Senate was allocated by race, how do you deal with proportions that do not results in a whole senate seat?

Mixed-race senators, obviously. Tiger Woods (for example) counts as a quarter of an Asian senator, half a black senator, one eighth of a white senator and one eighth of an Indian senator.

11

Anderson 03.12.13 at 5:00 pm

The practical question is, what to do about it? Article V of the Constitution expressly forbids amendments that would “deprive each State of its equal Suffrage in the Senate.”

So I guess you’d need at least two constitutional amendments, one to rewrite Article V, then another to revise the Senate.

And amending the Constitution requires either a 2/3 vote in both houses, or a convention. The latter would be a disaster. The former, i.e. 2/3 of the Senate votes to give up equal suffrage, is a non-starter.

Perhaps it’s better to muse upon problems that can be fixed?

12

marek 03.12.13 at 5:01 pm

Well the good news is that the assertion that

the Senate may be the least democratic legislative chamber in any developed nation

is and will remain hyperbole as long as the House of Lords remains in the UK. Though it certainly avoids any pesky questions about the theoretical basis for representativeness.

13

Jerry Vinokurov 03.12.13 at 5:05 pm

What powers does the House of Lords have when it comes to opposing legislation that the House of Commons wants passed?

14

James 03.12.13 at 5:05 pm

Corey Robin at 5: Fair enough. The historical purpose of the Senate is well known. The theoretical underpinnings of the Senate is an exchange of power. The small colonies got real power in the future government in exchange for joining. The EU attempted something similar in the fact that even the smallest of member nations has veto rights.

Since the whole intent of the Senate is to balance power based on artificial state boundaries, why does it mater that it is unfair to large states? All the current large population states agreed to this division of power as a condition for joining / creating the US.

15

Jerry Vinokurov 03.12.13 at 5:08 pm

All the current large population states agreed to this division of power as a condition for joining / creating the US.

When California joined the Union in 1850, it was not a large population state. Neither was Texas when it joined. And it’s not like those states had any leverage when it came to joining, so it wasn’t exactly a free decision being made (in California’s case especially since it was just annexed outright).

The basic reason that it matters is because unequal representation is fundamentally unjust; is there a separate reason why it needs to matter?

16

Josh G. 03.12.13 at 5:16 pm

James @ 14: “Since the whole intent of the Senate is to balance power based on artificial state boundaries, why does it mater that it is unfair to large states?

Because the world belongs to the living, not the dead. I don’t care who agreed to what 200 years ago; I care whether the result is fair here and now.

17

Corey Robin 03.12.13 at 5:18 pm

Anderson at 11: There is some debate among con law scholars about that provision in the Constitution. FWIW. http://prospect.org/article/lets-abolish-worlds-greatest-deliberative-body

James at 14: I don’t think the historical purpose, or theoretical underpinnings, of the Senate is at all well known. Your formulation itself suggests a certain amount of amnesia. As my OP suggests, one of the issues that may have helped seal the deal was not simply the size of the state but the political economy of that state: slave versus non-slave. Nor do I think the subsequent history of the relationship between the Senate and white supremacy is at all well known or understood. In fact, I got into an argument with a very senior political theorist at a conference last year over precisely this question: he was critiquing the majoritarianism of the House as a threat to liberty, and when I pointed out to him that it was in fact the Senate that repeatedly vetoed anti-lynching bills in the House (and some other civil rights legislation, if memory serves), he simply refused to believe it.

In any event, I think you’re misconstruing the point of the OP. It’s not to say that the Senate is unfair to large states; it’s saying it’s a threat both to majoritarian legislation (acc. to one estimate, politicians representing 6 percent of the population could theoretically veto all legislation; see my second update in the link below) and to important minority rights.

http://coreyrobin.com/2013/03/12/the-us-senate-where-democracy-goes-to-die/

18

marek 03.12.13 at 5:28 pm

@ Jerry

The House of Commons can override the House of Lords under the Parliament Acts, but it is a power not lightly or easily used – if Wikipedia is right, only seven times since its introduction in 1911. Most practical politics, as a result, has to take very real account of the views of the Lords – in the end they can ‘only’ amend or delay, but those are not trivial powers. Nor are they only theoretical: there is a very live issue at present with a proposed new law on defamation, which has strong support in the Commons, but is at risk of being lost because the Lords inserted an amendment which the government is not confident of having the votes to remove.

19

Mao Cheng Ji 03.12.13 at 5:34 pm

“The basic reason that it matters is because unequal representation is fundamentally unjust”

It is fundamentally unjust in a democratic state, but not necessarily in a federation.

20

Anderson 03.12.13 at 5:49 pm

17: “There is some debate among con law scholars about that provision in the Constitution.”

Abolishing the Senate altogether *might* get past Article V, though now you are really talking about something that won’t get 2/3 of the Senate on board. The other arguments are about on par with that lawsuit claiming the filibuster was unconstitutional … actually, that lawsuit had much better arguments.

… Note that Farber isn’t even willing to own that “but the old Senate doesn’t exist” argument. When professors hear good ideas from their colleagues, they take credit for them!

The best hope for the near future is to get rid of the filibuster, but the Democrats are sufficiently afraid of losing the Senate in 2014 not to want to go there; that at least is my inference.

21

Steve LaBonne 03.12.13 at 6:06 pm

The best hope for the near future is to get rid of the filibuster, but the Democrats are sufficiently afraid of losing the Senate in 2014 not to want to go there; that at least is my inference.

What they think will stop the Republicans from getting rid of it if they do win control, I can’t imagine.

22

Anderson 03.12.13 at 6:12 pm

“What they think will stop the Republicans from getting rid of it if they do win control, I can’t imagine.”

They’re Democrats. They have a long record of assuming the best about the GOP.

23

JW Mason 03.12.13 at 6:31 pm

1. I also recommend Dan Lazare’s The Frozen Republic on the Senate and the broader conflict between democracy and the Constitution — for whatever reason it didn’t get nearly the attention of Dahl’s book, but it’s very good.

2. It would be useful analytically to separate the question of one-person-one-vote from teh question of how district boundaries are drawn. The two tend to go together in practice but they don’t have to. An example I like is the way Boards of Supervisors work in some upstate New York counties (and maybe elsewhere, I don’t know.) It used to be that each town supervisor got an equal weight on the board, but when that was found to violate the Voting Rights Act, most counties replaced their boards with legislature based on equal-popualtion districts. But in some counties the link between the supervisor and the town seemed worth keeping, so rather than changing the election of supervisors, they weighted the vote of each one on the board by their town’s population.

I’ve always wished this kind of thing got more attention in discussions of election reform, because democracy doesn’t just require elections, it requires some kind of community of interest, collective deliberation, and accountability — at the least, people need to know what district they are in, who else is in it and who their representative is. Drawing district boundaries that correspond with more salient geographic divisions really helps here. But, as with the Senate, that runs up against one-person-one-vote — unless you drop the requirement that each representative gets one vote.

Of course, as a proposal for Senate reform in the foreseeable future, that’s a non-starter. Which brings me to…

3. It’s really important that we talk about things like the anti-democratic nature of the Senate even when there’s no immediate prospect of changing them. We can’t judge the value of practical, incremental reforms unless we think seriously about our long-term goals. And what’s impossible today may not be as impossible tomorrow. Slavery, as Corey says, is a big part of the context here. Well, how long did it take to get from (a) a clear but politically hopeless anti-slavery position to (b) a political context where abolition was possible? Decades, right? But I don’t think you ever would have had (b) without first having (a).

As Milton Friedman used to say, “The role of thinkers is to keep options open, so when events make change inevitable, there is an alternative available.” Smart guy, old Milton.

24

Jerry Vinokurov 03.12.13 at 6:36 pm

“The basic reason that it matters is because unequal representation is fundamentally unjust”

It is fundamentally unjust in a democratic state, but not necessarily in a federation.

I’m sort of taking it for granted that I’m communicating with small-d democrats who see rights as the sorts of things vested in people rather than arbitrary contours on a map.

25

JW Mason 03.12.13 at 6:46 pm

26

JW Mason 03.12.13 at 6:46 pm

(oops link close failure.)

27

Mao Cheng Ji 03.12.13 at 6:56 pm

“I’m sort of taking it for granted that I’m communicating with small-d democrats who see rights as the sorts of things vested in people rather than arbitrary contours on a map”

But what happens sometimes is that people use their rights, vested in them, to organize smaller democratic states, and then join them in a federation, where each state has, usually in one of the chambers, equal representation. Would that be a wrong way for them to exercise their right?

28

CJColucci 03.12.13 at 7:04 pm

If you’re going to have a bicameral legislature at all, and one house is more-or-less democratically elected on the bais of population, then the other house ought to be different in some way or combination of ways: either the length of term (6 yrs v. 2), the basis of selection (originally by state legislatures until the 17th amendment), or the basis of representation (states v. districts). The Senate is now elected in the same manner as the House, but for a longer term and by state rather than district. I agree with everyone who is upset that a handful of small states can effectively prevent measures that appeal to much greater population represented in a half-dozen large states, but I wonder what would be a sensible but different basis for representation — if, that is, we are to have a Senate at all. Assuming we insist on retaining a Senate, the only practicable suggestion I have seen that makes sense to me is to keep state representation, but to have a significant number (30-50?) of “at-large” seats for which all Americans can vote. (I have seen different proposals for how to set up the at-large vote, like weighted or cumulative voting or the Hare system, whatever that is , but I leave that to experts on that sort of thing.) I suspect the candidates with a chance of winning would be people of national reputation not necessarily tied to any geographic area, which would probably favor large states. And I suspect that few people would mount a national campaign for essentially 1 vote out of 130-150 in the Senate, so we would probably have a more-or-less self-selected elite, a sort on non-hereditary House of Lords.

29

James 03.12.13 at 7:14 pm

Josh G @16 Because the world belongs to the living, not the dead. I don’t care who agreed to what 200 years ago; I care whether the result is fair here and now.

Of coarse you mean, excepting Social Security, Medicare, Affirmative Action, or any other law that transfers power or resources from one group to pay a cost or complete a contract entered into by their ancestors.

30

Mark Field 03.12.13 at 7:26 pm

@28: Another option would be to combine states which lack sufficient population for a Senator on their own. For example, you could give CA 30 Senators, while WY, SD, ND, and MT could collectively elect 1.

31

Mark Field 03.12.13 at 7:27 pm

Sorry, math error. CA would have 12 Senators. Brain fart.

32

Norwegian Guy 03.12.13 at 7:32 pm

It’s not unusual that more lightly populated areas have a larger representation in parliaments than the more densely populated areas have, and most federal states gives the smaller states a disproportional high number of representatives in, at least in one chamber. I doubt slavery was the cause of this in every country, so there must be a few other explanations/justifications as well. What makes the US upper chamber special is more its power compared to the lower chamber than its composition.

And was it really the equal number of Senators per state that made it difficult to pass civil rights legislation? There was a larger proportion of Representatives (120/435) than of Senators (27/100) that voted against the 1964 Civil Rights Act. As far as I kind see it was the filibuster that was the largest obstacle, not the composition of the Senate.

By the way, if there had been no Senate wouldn’t conservatives have had more power at the moment? After all, the Democrats have a majority in the Senate and the Republicans in the House of Representatives.

33

James 03.12.13 at 7:32 pm

Corey Robins @17 I have read your alternate link. Of coarse a portion of the debate on the structure of the government was over slavery. The slave states wanted to count slaves for the purposes of state voting power but wanted to treat them like cattle for everything else. The 3/5 allocation in the house was a nod to this. Established small states where lobbing for the New Jersey Plan to the end. In order for the creation of the Senate to be driven by the slavery issue, you would have to demonstrate how the plight of the slaves was a significant and popular political concern for the population of the small states. It seems far more reasonable to assume that the small states where focused on keeping as much power for themselves.

O, and Hamilton was wrong. Power and Liberty are often tied together. Without power, an individuals liberty is at the mercy of the good conscious of those with power.

34

Jerry Vinokurov 03.12.13 at 8:14 pm

But what happens sometimes is that people use their rights, vested in them, to organize smaller democratic states, and then join them in a federation, where each state has, usually in one of the chambers, equal representation. Would that be a wrong way for them to exercise their right?

This seems like a good place to invoke that whole path-dependence theme I’ve got going on in the austerity thread. Namely, that 250 or so years ago, some people (and let’s not forget who didn’t count as people: women, slaves, native Americans) decided on a particular federal structure whose partial if not complete goal was the preservation of slavery. Today we are living with the consequences of those choices. If, in some theoretical abstract future, some theoretical abstract full complement of democratic citizens voted to partition their unified nation into a series of arbitrarily shaped administrative units which would possess voting power that didn’t scale with their population, I suppose then we could have this debate (for the record I still think it would be wrong, much in the same way that I think being able to sell yourself into bondage for infinity years should not be allowed no matter what). But in reality, none of that ever happened and so we don’t need to worry about it. The current system is deeply undemocratic (by design) and I think that’s bad and we should do away with it.

35

christian_h 03.12.13 at 8:16 pm

James (29.): Or, one might think that Social Security and Medicare are actually fair and sensible policies. In fact come to think of it – that is what their defenders are saying. It’s one thing to score cheap points, but another to try and miserably fail to score cheap points…

36

Mao Cheng Ji 03.12.13 at 8:42 pm

“Namely, that 250 or so years ago, some people (and let’s not forget who didn’t count as people: women, slaves, native Americans) decided on a particular federal structure whose partial if not complete goal was the preservation of slavery.”

Surely the complete goal was to find an acceptable compromise, so that all the states would agree to join? Anyway, you’d have a better case if this was a unique arrangement, but it’s not. Switzerland, Canada, the EU, the UN, etc.

For a federation, the senate an ordinary institution. You just need to say that you don’t like that the US is a federation, and that should be the topic of this discussion. Otherwise it gets messy.

37

Jerry Vinokurov 03.12.13 at 8:53 pm

Um, I guess I don’t like that the US is a federation then? I’m pretty sure we could remain a federation and not have the Senate, but you know, I’m not hung up on that label or anything.

38

Anderson 03.12.13 at 8:59 pm

We could always just cut to the chase and have the House elected by those making under, say, $100K a year, and the Senate elected by those making $100K or over.

39

Ted Lemon 03.12.13 at 9:08 pm

Speaking as a Vermonter, I’m really glad that we have two senators, and as others have mentioned here, proportional representation doesn’t exist in the House either. The disparity may be smaller, but it is not _materially_ smaller. So the presence of a completely disproportionate delegation in the senate from a small liberal state is actually a big win.

Also, if we didn’t have that representation in the Senate, we’d be even more screwed by unjust federal laws that displace local control. For example, the state of Vermont as a democracy is virtually unanimous in our opposition to the renewal of the Vermont Yankee operational license, but because federal law supersedes state law, we can’t do anything about it. If we didn’t have our senators, I suspect that there would be many more impositions of this sort.

The relationship between the House and the Senate—the requirement that they both come to agreement—also complicates the issue. But the bottom line is that it seems to me to be pretty clear that even though the Senate is far from one-person-one-vote, it actually represents a more accurate cross-section of the population than does the House. So an analysis that ignores this and simply concentrates on the statistics isn’t a very deep analysis. I think it would be worth considering the possibility that weirdos are a valuable part of any political system.

40

Jerry Vinokurov 03.12.13 at 9:19 pm

But the bottom line is that it seems to me to be pretty clear that even though the Senate is far from one-person-one-vote, it actually represents a more accurate cross-section of the population than does the House.

It’s not actually all that clear, I don’t think. I mean, that’s kind of what’s being debated here. How do you figure the Senate represents a more accurate cross-section of the population than the House?

41

Anderson 03.12.13 at 9:28 pm

“I think it would be worth considering the possibility that weirdos are a valuable part of any political system.”

I gotta grant, that has a distinctly American sound to it.

42

Ted Lemon 03.12.13 at 10:18 pm

Jerry, the popular vote for both the president and the House favored the democrats. The Democrats took the Senate as well. At least by that rough measure, the Senate reflects the popular vote more closely than the House does, even though the popular vote numbers we talking about are for the House, not the Senate.

Of course it’s not really that simple, but my goal here was to call into question the premise that the Senate is especially anti-democratic, and I think the numbers support my rejoinder.

43

Andrew F. 03.12.13 at 10:19 pm

So Rakove’s argument, if I understand it correctly from the excerpt, is that the larger states were persuaded to endorse a fixed number of votes per state in the Senate by their examination of regional interests during the consideration of the 3/5ths compromise.

I took a look at Madison’s records of the debates and voting on June 11, 1787. On that day, all the states but two (NJ and Del) approved of the 3/5ths compromise. Shortly after a vote on that question, a vote was entered on the question of whether representation in the Senate ought be on a one vote per state basis. And on that question, the vote was: Connecticut, New York, New Jersey, Delaware, Maryland, aye-5; Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, no-6.

The record itself is here: Avalon Project.

This seems to me strong evidence that certain states, by virtue of large and expanding populations, favored proportional representation in both houses; and that smaller states opposed. Note the opposition of the southern states (who, I believe, expected growing population and perhaps territory as well) to a by-state representation in the Senate, and their favor of proportional representation.

I also think there’s more validity than granted in the post to your students’ instincts about racial representation versus state representation in government, but my comment is long enough already!

44

Tom Hurka 03.12.13 at 10:39 pm

A bizarre feature of Canadian politics in the 1980s and 1990s was a push, primarily from politicians in Alberta, for a Triple-E Senate, i.e. equal, effective, and elected, just like the US Senate.

Since Alberta has roughly 10% of the Canadian population and there are ten provinces, it would have had proportional representation in this new Senate. But the equality rule would have given massively disproportionate influence to the four Atlantic provinces, which are by far the smallest — PEI has 150,000 people vs. 13 million in Ontario — and tend to have interests diametrically opposed to those of Alberta.

The Albertan proposal wasn’t based on racial politics, more on stupidity.

45

Jerry Vinokurov 03.12.13 at 10:48 pm

Ted, that’s not a good comparison, because only a third of the Senate is up for election during any cycle.

46

Mark Field 03.12.13 at 10:53 pm

@42: June 11 is the right place to start, but the debate didn’t end there. It continued until roughly July 23. At that point, both the 3/5 clause and equal representation in the Senate were approved. Along the way, there were lots of related points discussed: direct taxes at the same 3/5 ratio; Congressional power to control foreign commerce; the inablility to bar the import of slaves until 1808; and (outside the Convention) the Northwest Ordinance. Reading between the lines, it appears that the smaller Northern states made a deal with the deep South states to support the 3/5 clause and the slave importation clause (and probably the fugitive slave clause, though that’s unclear) in return for equal representation in the Senate, the NO, and the ability to regulate foreign commerce other than slaves. It was all part of a complex series of trade-offs.

This makes the Senate all the more indefensible for me, but some people like to glorify compromise.

47

Jerry Vinokurov 03.12.13 at 10:55 pm

More to the point, the anti-democratic nature of the Senate lies in the fact that it’s possible for a minority representing a small fraction of the population to render the government effectively nonfunctional. I can’t really see how that’s justifiable, and what’s more, history shows that the Senate’s anti-democratic feature have repeatedly been used to thwart progressive goals, and rarely, if ever, to advance them.

48

Jeffrey Davis 03.12.13 at 11:00 pm

Unicameral legislature. It’s just confirmation of American insanity that we don’t have one.

49

rea 03.12.13 at 11:25 pm

The slavery-protection role of the Senate is particularly shown by the history of admitting new states leading up to the Civil War. In 1812, there were 14 states, split 7-7 between slave and free. In 1820, the admission of Missouri as a slave state was balanced by the admission of Maine as a free state (as part of the famous, “Missouri Compromise”) Thereafter, states were admitted roughly in pairs until the Compromise of 1850, when California was admitted as a free state, breaking the tie in the Senate.

50

Ted Lemon 03.12.13 at 11:34 pm

Let’s not confuse the senate election process and the filibuster…

Jerry, do you think it’s likely that if the full Senate went out for election this year, the balance would shift in favor of the Republicans after the election? (I will admit that I haven’t done the math, but I’m skeptical. And of course I’m completely ignoring the anti-democratic effect of the two-party closed-primary system itself.)

51

Watson Ladd 03.12.13 at 11:39 pm

Jerry, I don’t think we can structure legislatures to advance bills we want advanced. We could require the Constitution to put democrats in power all the time, but that would be wrong. Constitutions should be about basic rights.

52

derrida derider 03.13.13 at 12:16 am

When Australian states decided to federate in 1900 they looked hard at other federations’ constitutions and picked and chose from them. One thing they borrowed from the US was a Senate with a fixed number of senators per state. The reason for this was that the politicians from the smaller states made it clear at the constitutional convention that they would veto federation entirely rather than give up their influence; I suspect exactly the same personal considerations operated at the US constitutional convention, democratic niceties be damned.

Perhaps you should have one of your Presidents speak of your Senate in the contemptuous way one of our PMs did of ours – he dismissed them as “unrepresentative swill”.

53

Jerry Vinokurov 03.13.13 at 12:33 am

Ted,

Jerry, do you think it’s likely that if the full Senate went out for election this year, the balance would shift in favor of the Republicans after the election? (I will admit that I haven’t done the math, but I’m skeptical. And of course I’m completely ignoring the anti-democratic effect of the two-party closed-primary system itself.)

Yes, I absolutely believe that. I think I’m on pretty solid ground for thinking this, given that commentators are already talking about the live possibility of the Democrats losing control of the Senate in 2014. I’m quoting numbers off the top of my head, but as I recall, there are over 10 potentially vulnerable Democratic senators in 2014 and almost no vulnerable Republicans. Of course counterfactuals are hard, there are waves, conditions can change, etc. but I believe that if every senator had been up for re-election this year, the balance would probably be something like 53-47 Republicans.

Jerry, I don’t think we can structure legislatures to advance bills we want advanced. We could require the Constitution to put democrats in power all the time, but that would be wrong. Constitutions should be about basic rights.

And yet, remarkably, all the same people who bleat continuously about basic rights (basic rights for whom, exactly? an arbitrary piece of land?) are exactly the same people who have worked the hardest to deny basic rights to actual, living, breathing human beings. This whole argument is transparent post hoc justification. Instead of doing the stupid thing you sarcastically suggest (“hurr put democrats in power by default”) we could, if we were willing, engineer a more progressive electoral system. Because while you can’t choose the bills your legislature will pass (and who thought you could?) you can learn from history, and what history teaches is that if you build anti-democratic measures into the structure of your system, you will, to the surprise of absolutely no one ever, get anti-democratic policies out of it.

54

Corey Robin 03.13.13 at 12:41 am

Ted at 38: I have no doubt that you as a Vermonter are fortunate to have the Senate protect your interests in the way it does. The question is what normative justification can one provide for you being protected in this and not for, say, African Americans being protected in this way? And if you want to see what kind of protections for African Americans the Senate has stymied, here’s just a small sample (I believe most if not all of these passed the House): laws to punish lynching; laws to enforce the voting rights of African Americans; laws to outlaw the poll tax; laws to ban segregation in schools (these passed the House in the 1950s, before even Brown I think) and basic civil rights legislation, which passed the House several times (often by wide majorities), only to be defeated in the Senate, before the final bill of 1964.

Andrew at 42: I myself don’t know all the ins and outs of the Convention — I’m taking my cues from Rakove — but I believe Mark at 45 gives some necessary context. The compromise over the issue — apportionment by population in the House, by state in the Senate — was something the leaders of the Convention hammered out (along with several other compromises on slavery), and even though Madison was one of the strongest proponents of by-population representation going into the debate, and throughout, he ultimately voted for the compromise and against by-population representation b/c it was assumed that that was the only way to get the document passed. We know that Madison continued to dislike the compromise b/c even though it’s defended in the Federalist Papers, the fact is that his analysis in Federalist 10 completely undermines the theoretical basis for that compromise by showing that a pluralism of interests (and a host of other mechanisms, none of which include by-state representation) will automatically make majoritarian tyranny impossible.

55

Mao Cheng Ji 03.13.13 at 1:05 am

” The reason for this was that the politicians from the smaller states made it clear at the constitutional convention that they would veto federation entirely rather than give up their influence”

I don’t think so. Not politicians, actual people, I believe, much prefer (assuming away the possibility of a foreign aggression) to live in smaller states. In small independent states; as small as possible, and as independent as possible. To compromise and join together, voluntarily, with larger states, these small states need some guarantee of autonomy, something like the senate. Vermont doesn’t want to be ruled by California, New York, and Texas, why should they. It wouldn’t surprise me if they’d rather split.

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Jerry Vinokurov 03.13.13 at 1:13 am

I don’t think so. Not politicians, actual people, I believe, much prefer (assuming away the possibility of a foreign aggression) to live in smaller states. In small independent states; as small as possible, and as independent as possible.

1. That’s an awfully big thing to assume away.
2. Say what? I’ma have to ask you to cite some, you know, facts in support of that.

To compromise and join together, voluntarily, with larger states, these small states need some guarantee of autonomy, something like the senate. Vermont doesn’t want to be ruled by California, New York, and Texas, why should they. It wouldn’t surprise me if they’d rather split.

Yes, but why should California, New York, and Texas be ruled by Vermont? The answer to the other question is actually quite easy: it’s because they have more people and you’re all citizens of the same country.

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Mark Field 03.13.13 at 1:15 am

“We know that Madison continued to dislike the compromise b/c even though it’s defended in the Federalist Papers, the fact is that his analysis in Federalist 10 completely undermines the theoretical basis for that compromise by showing that a pluralism of interests (and a host of other mechanisms, none of which include by-state representation) will automatically make majoritarian tyranny impossible.”

Actually, Madison was less subtle than that, though Federalist 10 certainly undermines any theoretical “justification” for the Senate. He argued in Federalist 62 that the Senate should be accepted in the spirit of compromise “instead of indulging a fruitless anticipation of the possible mischiefs which may ensue….”

58

Collin Street 03.13.13 at 1:22 am

The actual problem with discussing US senate reform is practical: the US house of representatives is rendered more-or-less useless for representational purposes by constantly-retuned gerrymandering. The US senate is malapportioned, yes, quite severely[1], but right now senate malappotionment isn’t the biggest problem.

And then you’ve got the [i]shape[/i] of the potential reform: US political tradition is fairly hostile to multi-member electorates [there's historical use of at-large plurality. but they've been more-or-less abandoned as being even more bound to party power frameworks than even the current system], so you’d be looking at districting, and districting in today’s context means subjecting the US senate to the same pressures that gets you the US HoR’s rather problematic map.

[see also the push from certain elements to restore indirect elections of senators by [gerrymandered] state legislatures]

The problems with the US senate are significant and worth mentioning, but there’s no point discussing fixes until you know how you’re going to fix the even-more-broken bits.

[1] And deliberately so, most obviously seen in the process of how you wound up with two dakotas. But that’s a sideissue and — importantly — in the past where it can’t respond to current pressures.

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Hector_St_Clare 03.13.13 at 1:29 am

We could, of course, fix up some fancy system where there’s state representation *plus* racial/ethnic representation in the senate. You could have like 200 seats, 26 for Black people, 20 for Latinos or whatever, 1 for Native Americans, and the remaining ones apportioned by states. Or you could have a senate like we have but then require after the fact that 13% be Black people.

I’m not certain if the senate disproportionately favours Republican states anymore, but it certainly favors *white* states.

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Mao Cheng Ji 03.13.13 at 2:20 am

“I’ma have to ask you to cite some, you know, facts in support of that.”

Separatist movements all over the place, but hardly ever a movement in an independent state to join another one (unless it’s a loose federation, like the EU). Nothing, as far as I know, in San Marino, or Lichtenstein, Monaco, or Luxembourg.

How stupid should those San Marinians be to not wanting to join the great Italian democracy, to be ruled by the fully democratic (and therefore, of course, extremely wise, competent, and benevolent) government down in Rome?

” it’s because they have more people and you’re all citizens of the same country.”

But, again, they are not. There are citizens of Vermont, and citizens of California.

300 million people, that’s way too many to govern by a unified central government. It also makes this government too belligerent, too ambitious on the international arena. It’s not good for anybody. I’d say, even 10 million is too many.

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JW Mason 03.13.13 at 2:36 am

<iI’d say, even 10 million is too many.

Mao Cheng Ji, I got the impression from some earlier comment of yours that you live in Switzerland. Am I imagining that, or is that right? In which case you would at least be consistent on this point…

62

The Tragically Flip 03.13.13 at 2:54 am

I love the idea of abolishing the senate (all senates) but failing that they should be subordinate to lower houses in important ways. Australia’s senate can be overridden and isn’t allowed to amend or initiate money bills. The US is quite rare in having a more powerful upper house which only magnifies the injustice of the thing. The house of lords can’t block cabinet nominees.

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The Tragically Flip 03.13.13 at 2:58 am

Aren’t the microstates just parasitic tax havens for the wealthy of the real countries? I can see why they don’t join bigger states but it has little to do with what we’re discussing here.

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Jerry Vinokurov 03.13.13 at 3:04 am

I don’t know anything about San Marino, and my entire knowledge of Italian politics is limited to what my Italian coworker tells me (he hates Berlusconi, so I trust him). I’ll just say that it would take a fanciful reading of American history indeed to support the claim that “actual people… much prefer… to live in smaller states. In small independent states; as small as possible, and as independent as possible.” Whatever reasons Lichtenstein might have to not be part of, say, Switzerland, don’t seem really transplantable to the American context. And anyway, even if this were in general true, it wouldn’t have much to do with how and why the Senate actually got established.

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Jacob McM 03.13.13 at 3:10 am

By the way Corey, while you’re here, I thought you and everyone else might get a kick out of this article in the Financial Times from Russian conservative Aleksandr Dugin.
http://www.ft.com/intl/cms/s/0/67fa00d2-874b-11e2-9dd7-00144feabdc0.html

Since you need to register to view it, I’ll post it here:

—————-
This conservative is no friend of a tired status quo, writes Alexandr Dugin

Liberals, to paraphrase Leo Tolstoy, are all alike; but conservatives are all conservative in their own way. While liberals insist on universal human rights and the pursuit of a globalised world, conservatives value national uniqueness, sovereignty and identity, defending their exceptionalism from a single, encroaching world order.

During his third term as president, Vladimir Putin is starting to distinguish himself as a Russian conservative. Understanding this will have considerable benefit for those seeking clues to the country’s future.

The swing towards conservative ideas is partly a response to what is happening in the world. As Francis Fukuyama has shown, it is the statist right, rather than the radical left, that has won the battle of ideas in the wake of the global financial crisis. But it is also in large part the result of their inherent popularity at home, and the unique relationship of the Russian masses to their leaders.

Russian conservatism can be traced to the time of the monarchy and is known by a simple formula: “Good tsar, bad elites.” It has always depended on giving the leader control in exchange for reining in the petty nobility. This was true of Ivan the Terrible and Joseph Stalin. It was true, too, of radical reformers such as Peter the Great and Vladimir Lenin, equally authoritarian but widely approved of because their target was the elite.

One sees echoes in Mr Putin’s policies. In his first term, he cut the oligarchs down to size. Now he is chastising his own ruling group over petty corruption, symbolised by the firing of defence minister Anatoly Serdyukov after his ministry was embroiled in a corruption scandal.

Modern Russian conservatism is both anti-communist and anti-liberal. It is not the same as the US version, which values a small state. Here, conservatives value undivided political power, with economic power rooted in and subordinate to it. They value the traditions of established religion, sovereign foreign policy and the guarding of great power status.

For his first 12 years in power, Mr Putin’s conservatism was tempered by the need to appeal to an influential liberal elite. But with the desertion of this class to the ranks of anti-government protesters since 2011, he is finally making his true views known. This should not be seen as winding back the clock, however. Russia is in transition from the pure totalitarianism of the Soviet era; this conservative moment represents a rethinking of what comes at the end of the transition.

Russia cannot return to the Soviet model other than on a symbolic level – such as reviving the Soviet anthem or socialist rhetoric. Likewise, we will not see the rebirth of the Tsarist empire with the Orthodox Christian tradition as the official ideology. Today, we are a multi-ethnic society with a growing Islamic population.

It is also worth noting that, while liberals are a numerical minority, they are influential. The government is controlled by moderates, with Dmitry Medvedev as their head. The oligarchs, who by and large espouse liberal ideas, retain much power.

If we put these facts together, Mr Putin’s presidency is pragmatic – conservative mainly in the sense that it does not share globalists’ optimism. It is not trying to guard an exhausted status quo. His ideas, by and large, do not transgress the limits of moderate western-type nation-building.

Mr Putin’s conservatism has been moulded by foreign pressure, symbolised by the passage in the US of the Magnitsky law, which creates a travel blacklist for certain Russian officials. It has been moulded from inside by the desertion of the middle class from the ranks of his supporters and the growth of a liberal protest movement.

In the face of these challenges, Mr Putin will move in the direction of being a conservative moderniser at home and a realist abroad. He will insist on state sovereignty, distrust globalisation, limit liberalisation and keep democracy strictly within a sovereign, national framework.

The term “balance of power” is the key to understanding Mr Putin’s version of conservatism, which will define politics in his third and presumably fourth terms. He will pursue the national interest, regional and global power, protectionism and mercantilism. Having lost the cold war, Russia will try to revise the status quo using all available opportunities.

The writer is chairman of the department of the sociology of international relations at Moscow State University

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Bruce Wilder 03.13.13 at 3:30 am

I think it would make sense to re-draw the boundaries of the States, and reduce their number. 10 States or 30 — each with boundaries describing some kind of geographic economic system, with at least some pretense to becoming a community, with a shared common-wealth and unity of shared interests or identity. Or, maybe 7 to 10 federal Regions, with 30 to 40 or so autonomous States — the Regions, creatures of the Federal government, and the States on their own bottoms.

Many of the symptoms of political dysfunction in the U.S. have to do with having too centralized a government for a vast continental country. The archaic Senate just accentuates the problems of the archaic character of the States, themselves, which make serious decentralization of governance so implausible.

Even if the Senate were more majoritarian, it doesn’t make sense for New York City to dictate to Utah on say, gun control. I’m not saying gun control doesn’t make sense; just that a suitable regime needs a more decentralized framework.

The Federal government stumbles in trying to administer many programs, mandates them to the States, which are ill-suited to carry them out — being awkward and ill-drawn Departments. All kinds of Regional problems involve struggles to put together loose ad hoc organizations, and the divided character of many States with major, but fractured urban areas facing off against regions with which they have little in common.

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Jerry Vinokurov 03.13.13 at 3:48 am

Shorter Dugin: Putin is a fascist, but he’s our fascist.

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Joshua Holmes 03.13.13 at 3:54 am

Not only all of this, but the Senate has miserably failed at the one good thing it had the structural power to do: check the power of the Presidency. The Presidency has accrued a vast amount of power, the extent of which is secret, and the Senate hardly flinches.

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Witt 03.13.13 at 5:04 am

I admit to being curious about an off-topic question: At what point in the semester do you introduce this discussion? (Apologies if I missed this somewhere in your post.)

The reason I’m asking is that if I were a student, and a professor floated this idea, I’d be exceptionally wary that they were setting in motion a chain of racialized class discussion that they wouldn’t be adept at controlling.

In order to engage in the discussion, I’d want to have seen the professor in action for a couple of months and established a good foundation of trust. To be able to believe at the professor would not let the discussion stray off into ignorant and/or hurtful hypotheticals, or otherwise not have the backs of students who might get metaphorically bullied into a corner by another student’s “just asking questions” approach.

Maybe I just have too many memories of damaging and hurtful “just a hypothetical” discussions from my college days. Somehow there always seemed to be some folks in the room who took a professor’s thought experiment as license to float their most nasty prejudices.

If you feel this is too much of a tangent, feel free to ignore this comment.

70

Chris Mealy 03.13.13 at 7:17 am

Admitting new states is easy, all you have to do is pass a law. If you’re splitting up an existing state you need that state to agree to it. Eventually somebody is going to figure this out and the Senate will wind up with a zillion rotten boroughs. You could split California into 10 states gerrymandered around its big cities. Or split all of the NYC council’s 51 districts into their own state. Whichever side figures this out first is going to be able to run up such a lead in the Senate that the other side will never be able to admit its own new states.

71

reason 03.13.13 at 9:48 am

It is interesting being an Australian in this – because Australia also has equal representation of unequal states in the Senate. It does have more senators per state, elected by a quite advanced electoral system (multi-member single transferable vote) and the differences in size are not quite so extreme). But the big difference in Australia, is that the vast majority of the Australian population is Coastal Urban, regardless of state.

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floopmeister 03.13.13 at 12:12 pm

Reason – although if you’re not part of Western Sydney you’re inclined to feel a little left out of our political landscape at the moment

:)

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Corey Robin 03.13.13 at 12:15 pm

Jacob at 63: Thanks for that; hadn’t seen it.

Witt at 67: It’s a con law course that’s organized developmentally/historically — begin with Articles of Confederation, move to Constitutional Convention, then Marbury, etc., all the way down to US v. Lopez, etc. — so it has to come in the second week of class. That said, race is a through-line for the course (as it is of American history), in which we talk, among other things, about the development of national state power in relation to slavery, abolition, Jim Crow, civil rights. (The other through line is the development of capitalism.) So rather than being an awkward, fraught moment where we suddenly discover there are white and black people in the room — and remember I teach at Brooklyn College; I don’t know where you went to school but the demographics of our student boy are such that students seem to be able to handle these discussions of race with slightly greater aplomb than perhaps they would elsewhere — it is a substantive line of inquiry that students are encouraged to examine from a theoretical and scholarly view rather than as an opportunity for mutual exorcism and recrimination. And as I said in the OP, almost all of the students, regardless of race, agree with each other on this, so the class seldom divides in the ways you’re suggesting. If anything, they seem to enjoy a moment where they can all band together to suggest to me that I’m out of my mind.

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Bloix 03.13.13 at 1:57 pm

The US Senate favors rural interests in another way: even the most urbanized states have large rural and ex-urban areas. New York has upstate, Illinois has downstate, California has the Central Valley. If New York City were a state, it would be twelfth in population, but it constitutes only 42% of the population of New York State. No senator can be elected from New York without the support of a significant percentage of upstate rural and suburban voters. And the same is true of other large cities and states.

On the other hand, many states have no truly large urban areas.

And so, even senators from New York and California have to be moderate, reasonable, and sensible on guns, gay rights, voting rights, state support for religion, abortion, climate change, environmental protection, and many other issues, while senators from Wyoming and Oklahoma can be as full wing-nut as their little hearts and big campaign contributors could ever desire.

And this characteristic of the Senate wouldn’t change by giving big states more senators.

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Watson Ladd 03.13.13 at 2:07 pm

So I think I have an explanation for the intuition why geographic representation is less undemocratic then racial. Democracy is not simply about numerically superior majorities imposing their will. Rather, it presumes a formation of a common interest and identity. In the case of geographic divisions, such a commonality is enhanced, while racial quotas encourage the kind of strife that historically has not been good for anyone. This of course is a very contingent argument: regional strife can exist in legislatures as well.

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DaveL 03.13.13 at 2:18 pm

#68 Chris. I think your scheme fails because Congress must also approve the newly gerrymandered State of the 47th Ward.

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Mark Field 03.13.13 at 2:34 pm

“Democracy is not simply about numerically superior majorities imposing their will. Rather, it presumes a formation of a common interest and identity.”

Your position is that of the classical theory of republics found, e.g., in Montesquieu:

“It is natural for a republic to have only a small territory; otherwise it cannot long subsist. In an extensive republic there are men of large fortunes, and consequently of less moderation; there are trusts too considerable to be placed in any single subject; he has interests of his own; he soon begins to think that he may be happy and glorious, by oppressing his fellow-citizens; and that he may raise himself to grandeur on the ruins of his country.

In an extensive republic the public good is sacrificed to a thousand private views; it is subordinate to exceptions, and depends on accidents. In a small one, the interest of the public is more obvious, better understood, and more within the reach of every citizen; abuses have less extent, and, of course, are less protected.”

This was the argument Madison had to overcome in order to get the Constitution ratified. For example, the anti-federalist writer Brutus, citing Montesquieu, wrote that “If respect is to be paid to the opinion of the greatest and wisest men who have ever thought or wrote on the science of government, we shall be constrained to conclude that a free republic cannot succeed over a country of such immense extent, containing such a number of inhabitants, … as that of the whole United States.”

Madison wrote Federalist 10 specificially in order to counter this argument and to justify republican government in a large and diverse territory: “In the extended republic of the United States, and among the great variety of interests, parties, and [religious denominations] which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good….”

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mds 03.13.13 at 2:41 pm

Steve LaBonne @ 21:

What they think will stop the Republicans from getting rid of it if they do win control, I can’t imagine.

The fact that Democrats are unlikely to obstruct the majority party’s agenda on the scale that the GOP has done since 2009? They’ll “keep their powder dry,” form bipartisan Gangs of N (where N represents the number of preening wankers), etc.

Anyway, the route to doing a massive overhaul of how the Senate functions is extremely fraught, since it requires amending the Constitution in some way. How about focusing on the increasingly undemocratic nature of the House, with its cap of 435 members? Shifting representatives from states whose population grew more slowly than other states overemphasizes the impact, and meanwhile, the guarantee of at least one House member per state replicates the small-state Senate disparity (Wyoming gets one representative for about 500,000 people, while California gets one representative for over 700,000 people). So why not focus on a campaign to repeal the Reapportionment Act of 1929? Sure, it’s a bit of a circular problem, because a Republican-controlled House is unlikely to approve anything that increases urban representation in Congress, or makes gerrymandering less of a sure thing for them, but they’re even less likely to approve a constitutional amendment weakening Idaho’s power in the Senate.

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Barry 03.13.13 at 3:09 pm

Actually, the reasons that the GOP Senate won’t get rid of the fillibuster are:
1) The Democrats, with or without Blue Dogs, will never obstruct business like the GOP does.

2) Whenever the GOP threatens Dem Senators, they cave.

80

ponce 03.13.13 at 4:36 pm

Harry Reid was a rather feisty minority leader.

81

Sebastian H 03.13.13 at 5:02 pm

A big part of the problem with the thought experiment, and this happens a lot in law classes and social science classes, is that it gets the magnitude all wrong. There are two basic issues with the Senate, small states are individually over represented by population (Montana gets the same votes as California) and there are lots of little states with similar interests in the East while the same types of interests in the West get clumped (the New England gets lots of votes while California gets two issue). So the first issue is of Senate votes compared to population. The second problem is Senate votes as a total share of the institution. Montana gets 1/50th of the votes.

But even as bad as the Senate is, the race proposal would be much worse. There are six categories in the US census. So positing 12 Senators, Native Hawaiian/pacific islander gets two Senators with about 0.15% of the population. American Indians/Alaskans get two votes with about 0.9% of the population and whites get two with about 63% of the population. That is already much worse than the Senate in terms of over representation. But since you additionally shrunk the institution, you also made it worse on institutional share of power. In the race situation one percent of the population is getting about 1/3 of the Senate vote share, while 63% of the population gets 1/6th. As bad as the senate is, it isn’t nearly that bad.

Magnitudes make a difference. You can compromise on one thing, but think the compromise would be ridiculous if you inflate it by an order of magnitude. There are lots of things that could settle out of court for $2,000 that wouldn’t settle for $20,000.

And I write all this as someone who thinks the Senate is pretty ridiculous.

82

Hector_St_Clare 03.13.13 at 5:21 pm

Re: There are six categories in the US census.

This is a tangent, but we really need more categories. South Asians like me are biologically quite a distinct racial group than East Asians or Middle Easterners, and it’s rather silly to group them into an ‘Asian’ racial group.

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JE McKellar 03.13.13 at 6:17 pm

How about an “open confessional” system? The Senate could be divided into 50 ‘classes’, each just listed out by number (#1, #2, etc). Candidate sign up to run for a particular class’ Senate seat, and voters can only choose to vote for one Senate seat. Essentially, voters get to pick (or self-identify) what class they belong to each election cycle. Custom and media circus will generate labels for each particular class (Libertarian, Green, Farmer, Freeper, Soccer Mom, Grizzly), but they can easily change with the times, following the ability of a candidate to mobilize enough popular support to unseat an incumbent.

The original state system worked as well as it did when the economy was more or less organized state lines (agricultural hinterlands connected to trade-port/capital city hub), but today’s economies (and communities) are a lot more fluid, and spread out across many different states.

84

CBrinton 03.13.13 at 8:01 pm

The supposed “post-Civil War shift from ‘The United States are’ to ‘The United States is'” never happened. A look at the relevant Google ngrams shows that the latter form was already more common (in the US English corpus) by 1830.

http://books.google.com/ngrams/graph?content=United+States+is%2C+United+States+are&year_start=1800&year_end=2000&corpus=17&smoothing=3&share=

85

Wonks Anonymous 03.13.13 at 8:14 pm

An Ottoman-style millet system would make sense to have proportional representation by ethnic group. But in the U.S it is states that are political units.

JW Mason, that is apparently a linguistic myth.
http://languagelog.ldc.upenn.edu/nll/?p=1794

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Mao Cheng Ji 03.13.13 at 8:24 pm

“but today’s economies (and communities) are a lot more fluid, and spread out across many different states.”

If that’s the argument, then you better bring 500 (or so) new senators from China, to make it fair.

75 Madison: “In the extended republic of the United States, and among the great variety of interests, parties, and [religious denominations] which it embraces, a coalition of a majority of the whole society could seldom take place on any other principles than those of justice and the general good….”

Well, it’s not working as he promised. Obviously (as we all know), both ‘justice’ and ‘the general good’ can be easily spun six ways to Sunday.

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nick s 03.13.13 at 8:26 pm

virtually no one ever criticizes the Senate

Hm. Not sure about that. One example: this Harper’s piece in 2004 arguing that it should be abolished.

The Canadian regional apportionment, or something like the Bundesrat. I’m actually less opposed than many on the left to the pre-17th amendment system of state legislatures appointing senators, but only if it’s accompanied by two things: independent apportionment of state legislative districts, and Americans giving a shit about their state legislative elections. The accountability vacuum at the state level is, I think, significantly more problematic than the distortions of the US Senate, as demonstrated by the relish with which ALEC and similar wingnut legislative shops have focused on the mediocrities, incompetents and easily-bought boobs in state office.

is and will remain hyperbole as long as the House of Lords remains in the UK.

As others have said, you have to factor in the powers (and internal rules) in that calculation, not just the manner to which its members are chosen. Appointed chambers can be functionally less anti-democratic if they’re relatively powerless.

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CharleyCarp 03.13.13 at 8:32 pm

As a native of one small state (CT) and resident of another (MT), I’ll say what I always say when this comes up: cold dead hands. This was the deal, and it was a big step forward from the state vetoes under the Articles. You can’t tell me that I should be happy to ruled by California and Texas because they have more people and we’re in the same country, because we’re only in the same country on the basis of a deal that was made, and explicitly carved out as unbreakable.

And you can’t combine my state with another without our consent. Stop talking about that, big state people: we’re not going to do it.

There is a solution, and it’s astonishingly easy: the Maine option. People in big states who don’t like the representation they’re getting in the US Senate are welcome to organize themselves to take a shot under Art. IV sec 3, and secede (with approval from Congress and their current state capital) from their existing state. I don’t see a good reason that Buffalo and Long Island, or San Diego and Alturas, need to be in the same states. And I see good reasons for them not to be: not just the US Senate, but their own self-government would be more effective at a ratio more like ours. [One can win a seat in our state house with under 3,000 votes. That means the candidates come to my house to talk to me, and are not spending money on TV advertising, mostly. They answer my emails, and discuss issues with constituents during and between sessions. You people want me to give that up, in favor of the poor representation generally that you claim you're getting from the Senate. No thanks. Cold dead hands.]

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Corey Robin 03.13.13 at 8:36 pm

Sebastian at 79: I think the problem is that once you apportion votes on the basis of states, and say that states have coherent interests/identities to protect, completely independent of the size or composition of their populations, you lose all grounds to make any complaint on the basis of the basic democratic principle of one person-one vote. You’ve now entered a different terrain where you have to make your justifications on other grounds. The classic justification is that small states need protection by virtue of their populations being numerically outgunned. They lack political power, understood as numerical votes (with no reference whatsoever to the actual stature or social power of the residents within them). Once you go down that road, then, it seems quite reasonable to say, well, fine, what about historically subjugated groups: do they not lack power as well? Not only numerical power but also social and economic power? That a Senate representing them would only exacerbate the problem of un-democracy is really neither here nor there b/c you’ve already abandoned that as your starting point in justifying apportionment on the basis of states. If we can live with — and many people are happy to justify — a situation where a person from Wyoming has 60 times the voting power as someone from California, why can’t we say that a black person should have x (I’m terrible at math; maybe you could do the calculation for me?) times the voting power as someone who is white? That the latter is more undemocratic is not an argument one can resort to in this situation — unless one is fully prepared to say that the Senate is an illegitimate and unjustified institution, which most people are not prepared to say — because the institution is by design undemocratic.

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Jerry Vinokurov 03.13.13 at 8:40 pm

As a native of one small state (CT) and resident of another (MT), I’ll say what I always say when this comes up: cold dead hands. This was the deal, and it was a big step forward from the state vetoes under the Articles. You can’t tell me that I should be happy to ruled by California and Texas because they have more people and we’re in the same country, because we’re only in the same country on the basis of a deal that was made, and explicitly carved out as unbreakable.

A bad deal to protect a bad institution was made hundreds of years ago and therefore we have to honor it because REASONS.

You’re free to personally acknowledge that you like the overrepresentation that the system gives you, as a CT resident, but the notion that old compromises represent some sort of irrevocable contract in perpetuity is absurd.

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JW Mason 03.13.13 at 8:43 pm

As a native of one small state (CT) and resident of another (MT), I’ll say what I always say when this comes up: cold dead hands. This was the deal

It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.

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Anderson 03.13.13 at 8:57 pm

CharleyCarp: “People in big states who don’t like the representation they’re getting in the US Senate are welcome to organize themselves to take a shot under Art. IV sec 3, and secede (with approval from Congress and their current state capital) from their existing state.”

Maine is an interesting example because the balance of the Senate was no less contentious then than now – moreso, perhaps. Maine got in only because the slave-state Missouri was part of the same package.

Nowadays, look at the diehard opposition to giving D.C. two Senators. (I wonder how many of the people now railing vs. the undemocratic Senate can be googled up as favoring D.C. statehood?) Any change that would tend to favor one party or the other would be a non-starter, such as splitting New York so that instead of two Dem Senators, you get two Dem and two GOP.

Like I said upthread, we’re stuck with the Senate, barring a constitutional convention. And one can only shudder at that prospect.

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Sebastian Holsclaw 03.13.13 at 9:04 pm

“I think the problem is that once you apportion votes on the basis of states, and say that states have coherent interests/identities to protect, completely independent of the size or composition of their populations, you lose all grounds to make any complaint on the basis of the basic democratic principle of one person-one vote. “

This is what I mean about compromise and magnitude. I don’t at all see why compromises mean you lose ALL grounds to make ANY complaint against ANY magnitude on the basis of basic democratic principles. So we really can’t object to dictatorship (putting all of the voting power into one person) just because we don’t perfectly reflect it between New York and California? That seems to take logical rigor a bit too close to rigor mortis.

If I injure you and fairly think that the injury is worth $20,000, while you think it is worth $30,000, we might have some compromise potential. If I think it is worth $20,000 and you believe it is worth $2,000,000 we probably don’t have compromise potential because you are two orders of magnitude off from me (for the non math inclined think ‘adding two zeros’).

The problem with your analogy is that you take a particular problem (the voter differential between Montana and California as expressed through the Senate) and essentially add two zeros. The thing about compromises is that inflating the difference between the positions doesn’t just expose highlight the differences, it fundamentally alters the nature or potential of the compromise.

Now you can argue that the compromise ought not have been made. You can argue that the compromise is too big. You can argue that the compromise may have been ok at the time but that populations have drifted too far for it to still be fair. Anything in that vein would make sense to me. Hell I’d probably agree with arguments in that vein, though I’m not sure what I’d agree to do about it.

But you shouldn’t really be surprised that inflating the compromise by about an order of magnitude or so doesn’t strike people as a good argument. You’ve fundamentally altered the nature of the compromise such that most people won’t recognize you as talking about the same thing at all.

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Anderson 03.13.13 at 9:28 pm

93: Absolutely correct. Hyperbole is poor constitutional law.

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Jerry Vinokurov 03.13.13 at 9:34 pm

If you don’t like the race-based Senate allocation thought experiment, you could always divide it by income level. According to my estimates, something close to 95% of senators are pretty rich, while none are poorer than upper middle class. How’s that for misrepresentation?

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Wonks Anonymous 03.13.13 at 9:35 pm

nick s, David Schleicher has shown that voters tend to know what party their governor belongs to and which party controls Congress, but NOT which party controls the state legislature. Furthermore, cities tend to have one-party rule because party identity at the national level is so salient. The obvious solution is to abolish the national government so that more of their mindshare is available for local politics.

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mpowell 03.13.13 at 9:41 pm

SH@93: I agree with you on the scale of things mattering, but I don’t think that’s why the students responded so poorly. I doubt they ever got that far in the process. They responded poorly because they think American gov is great because that’s what they’ve been taught so of course the Senate should have two representatives from each state. That’s the right thing to do because that’s how the US does it and the US is always best. I doubt any critical thought is involved in the gut level response.

I love the argument that the US is really a federation and “that was the deal damn it!” If this was a federation, then the big population states would kick out all the small states and then reclaim the territory by force of arms or just by establishing punitive trade measures until the small states willfully surrendered. The US does not generally do right by its neighbors. But people think of themselves primarily as Americans and our politics operate accordingly by and large except to the extent that they are forced not to by the rules of the Senate.

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Bloix 03.13.13 at 9:48 pm

“As a native of one small state (CT) and resident of another (MT), I’ll say what I always say when this comes up: cold dead hands. This was the deal.”

So you’d die before seeing Montana merged with Idaho? Why? What thing of genuine benefit would you lose by living in Mondaho?

Two of the smallest states, Connecticut and Delaware, are among the highest contributors per capita to the federal government. It’s true that Montana is 41st (it’s contribution is negative), and many states toward the bottom are small, but this is because they are poor, not because they’re small.

The main thing you get by living in a small western state is the right to have your legislators bought and sold by big out-of-state corporations. As a Montanan, you should be well aware of this situation. see http://www.courthousenews.com/2012/06/25/47765.htm

And, if you’re an urban Montanan, you get to have your city starved of federal funds because urban issues aren’t important to the Senate. Crop support, yes. Public transportation, no. And if you’re an academic, you’d be much better off if NY and Cal had ten senators each – funding for higher ed would certainly go up.

I’ve never found the argument that 50% + 1 has moral superiority over other means of governance particularly compelling, and it wouldn’t bother me on principle that the Senate is anti-democratic. The idea of geographic representation in a large and very diverse country seems reasonable.

The problem is that the Senate is anti-democratic in a consistent fashion, biased in a rural, western, conservative, resource-exploiting, anti-minority, anti-intellectual way. The natural gas boom notwithstanding, most of the plains states have been emptying out for decades. They’re left with old, unambitious, uneducated, insular white people who don’t have a clue how the modern world works and care more about their guns than their country.

If there were as many Connecticuts and Delawares as there are Wyomings, Alaskas, and North Dakotas, this wouldn’t be as big a problem, but there aren’t. There are a lot more small rural western states than small urban eastern ones.

Yes, it’s true that often the Senate is controlled by Democrats, but many are conservative Dems. A more representative Senate would push the center of the political spectrum to the left, not by electing more Dems, but by making the average Dem more liberal and the average Republican more moderate.

And other than history there’s no reason for this. The western states aren’t real sovereigns. They’re not like Virginia or Massachusetts, which existed for more than a hundred years before the US and had identities that they didn’t want to sacrifice. They’re just chunks of land that were cut up arbitrarily for administrative purposes. Why are there two Dakotas? Why do we need a Wyoming and a Montana and an Idaho? Take a look at Canada, or Alaska – there’s no reason not to have geographically large entities if the populations are small.

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CharleyCarp 03.13.13 at 9:51 pm

the notion that old compromises represent some sort of irrevocable contract in perpetuity is absurd.

And yet, in this case, the law.

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Jerry Vinokurov 03.13.13 at 9:54 pm

And yet, in this case, the law.

So what? “It’s the law,” is actually worse than your last response, which at least has the virtue of claiming some kind of benefit for yourself. Lots of things were the law once and aren’t anymore.

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Mao Cheng Ji 03.13.13 at 9:58 pm

“But people think of themselves primarily as Americans”

But in fact they don’t. And if they did, then this horrific oppression of the People of Texas by ruthless Vermonters wouldn’t have even existed: all the Senators, no matter who elected them, think as Americans, nothing to worry about. You can’t have it both ways.

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Jerry Vinokurov 03.13.13 at 10:04 pm

But in fact they don’t. And if they did, then this horrific oppression of the People of Texas by ruthless Vermonters wouldn’t have even existed: all the Senators, no matter who elected them, think as Americans, nothing to worry about. You can’t have it both ways.

Do you live in America? Serious question. Because I just can’t imagine anyone with actual knowledge of American politics saying this and meaning it.

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CharleyCarp 03.13.13 at 10:04 pm

Would being ruled from Boise be worse that being ruled from Sacramento? I’m not going to say it necessarily would be, but I’m not interested in finding out.

A hundred years of statehood is enough to make a distinct polity. I don’t think anyone in Wyoming or Idaho is confused about the very substantial differences between them, and between either of them and Montana. The beauty of the current arrangement is that I don’t have to convince you that they exist, or are sufficient to justify resistance to consolidation. The simple fact is that we here know they do, and I doubt you could get 10% on a ballot measure combining states in any of the 3.

Yes, Citizens United and especially is bastard step-child American Tradition Partnership are affronts to a free people. We did what we could in ATP; the result wasn’t our idea. We had a ballot measure to ask for a US Constitutional amendment to get rid of it, and it got something like 75% of the vote. What’s your state doing?

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CharleyCarp 03.13.13 at 10:31 pm

(A friend of mine who served as a delegate to our most recent constitutional convention [40 years ago now] tells a lurid tale of how we came to split off from Idaho — something about bags of fake gold nuggets carried east to show (give to?) Lincoln, and misrepresentations of the political and sectional inclinations of respective residents. Not any more relevant today than the differences between the grants to the Penn family and the settlers of West Jersey, but here we are. And here we stay.)

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Mao Cheng Ji 03.13.13 at 10:31 pm

Sorry, that came out a bit too sarcastic. But yeah, what people think of themselves, it depends on the context. In this particular context, they think of themselves as citizens of the state they live in. No question about that.

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Mark Field 03.13.13 at 11:15 pm

“Well, it’s not working as he promised. Obviously (as we all know), both ‘justice’ and ‘the general good’ can be easily spun six ways to Sunday.”

Well, Madison vehemently opposed equal representation in the Senate precisely because it undermined the benefits of republican government. As an example, here are his remarks on July 14:

“Mr. MADISON expressed his apprehensions that if the proper foundation of Government was destroyed, by substituting an equality in place of a proportional Representation, no proper [federal government] would be raised … It had been very properly observed by [Mr. Patterson, the sponsor of the New Jersey Plan] that Representation was an expedient by which the meeting of the people themselves was rendered unnecessary; and that the representatives ought therefore to bear a proportion to the votes which their constituents, if convened, would respectively have. Was not this remark as applicable to one branch of the Representation as to the other? … He enumerated the objections against an equality of votes in the [Senate], notwithstanding the proportional representation in the [House]. 1. the minority could negative the will of the majority of the people. 2. they could extort measures by making them a condition of their assent to other necessary measures. 3. they could obtrude measures on the majority by virtue of the peculiar powers which would be vested in the Senate. 4. the evil instead of being cured by time, would increase with every new State that should be admitted, as they must all be admitted on the principle of equality.”

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Corey Robin 03.14.13 at 12:37 am

Sebastian at 93: Let me take a second pass at this. The point of the thought experiment I raise with my students — and it is just a thought experiment, not a proposal — is to get them to think about the legitimacy of the basis for apportionment in the Senate.

The underlying principle of apportionment in the Senate is not democratic, understood as one person, one vote. By that I don’t mean the disparity between Wyoming and California; that is just a consequence of something else: the fact that apportionment is on the basis of a corporate identity, namely, states. So the question is: why are states legitimate entities for representation as opposed to races and ethnic groups?

The usual justification — protection of numerical minorities from the oppression of numerical majorities — apply to African Americans much more than they do to small states. So why not go that way? To then say that it is undemocratic is to invoke a principle — democracy, again understood as one person, one vote — that has already been scrapped. Not compromised; scrapped.

I want to stress that b/c you put so much emphasis on compromise. You’re right that the Senate is the result of a compromise, but the compromise is that population size has zero — zero — role in the apportionment of senators. It’s not a compromise between a little democratic and a lot democratic; it’s not democratic (again, understood in the way we’re talking about here) at all.

To claim that apportionment on the basis of race/ethnicity would make it more undemocratic than it already is also makes no sense because any fluctuation in population — which happens all the time — can make the Senate more undemocratic than it already is. In fact, as Liptak points out, that’s already happening, as more and more people move to urbanized areas in large population states.

Your response to that is to say it’s a question of magnitude, how much of a compromise are you ready to make. To which I repeat: the Senate was never a compromise over how much un-democracy you’re willing to tolerate; given demographic shifts, that is simply something one has zero control over.

But I’ll add another point: Let’s say I concede that the Senate is a compromise between some tolerable level un-democracy and an intolerable level of un-democracy. I’m curious what your threshold is for when we’ve gone from the former to the latter. The 1:60 ratio I mentioned in my previous comment seems to be perfectly acceptable to you (or at least acceptable relative to what the ratio would be in the case of apportionment by race). I find that bizarre; it so violates any notion of democracy that I’m familiar with that I hardly can see it as a compromise at all. But if it is okay, then when does it become not okay? And on what basis? Give me a specific ratio that’s intolerable and give me the justification for why it’s not tolerable (and explain how that justification would not apply to the 1:60 ratio).

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Archer 03.14.13 at 2:20 am

Regarding your thesis, would you say the reverse is true for the US House of Representatives? That representatives from large states are gaining power/advantage at the expense of the small?

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Anderson 03.14.13 at 2:34 am

This is a weird discussion. Essentially, the argument seems to be that the Senate would not figure in any constitution a poli-sci prof wrote.

That’s a good thing! The Senate is a drag.

But the Senate has its origin in history, not theory. The Constitution wasn’t imposed by academic fiat or philosopher-kings. It had to be ratified by -state- conventions. It was drafted by -state- delegates. “States” are quaint no doubt, but in 1789 they were the political reality.

It’s telling that the Constitution provides that only two provisions can’t be amended away: equal state suffrage in the Senate, and the slave trade’s guarantee until 1808. Both were self-evidently suspect at the time. But they were, as CharleyCarp says, part of the deal. America wasn’t immaculately conceived – which I take as Prof. Robin’s point for his students – but excessive shock at that fact suggests a lingering faith in miracles.

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Corey Robin 03.14.13 at 2:53 am

Anderson at 108: Sure, but that ratification process was not without arguments, without reasons provided, without justifications offered. Hell, that process spawned one of the very few books in the American canon that even has a claim to be taken seriously as political philosophy. So this notion that the Constitution — and the Senate — is just a deal, a compromise, and nothing more, and that nothing more need be said about it, is just silly. I mean, what do you think kids should be talking about in a poli sci class about the Senate? How a bill becomes a law? The poverty of our education around politics in this country might be one of the reasons why we have such an impoverished politics in this country. But the irony of your comment — and some of the comments of a similar nature on this thread — is that this post was inspired by an article in the New York Times, a very long article I might add, that reports on how seriously some of these issues (the proposal are not quite as far as I would like to go, but the underlying theoretical questions that are being raised are identical to those I raise here) are now being discussed and debated. Not in a seminar room but among real political actors. So it’s hardly the case that we’re a bunch of idle speculators sitting around a room imagining how we would draw up our platonic republic; I at least was responding to a very real debate that’s happening right now.

If you want a better version of what I just said, read Josh Mason’s comment at 23. If you want a shorter version of what I just said, read Josh Mason’s comment at 91.

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Corey Robin 03.14.13 at 2:56 am

Sebastian at 93: By the way, I just re-read that Times piece I linked to. On that 60:1 ratio (it’s actually 66:1), this is what Yale political scientist Robert Dahl had to say about it: the only countries in the world with *less* democratic chambers are Brazil, Argentina, and Russia. So on the scale of undemocracy, the Senate is pretty damn high. Again, I have no idea of what your metric of compromise is, but if only three countries are less democratic, I’d say you’ve hardly achieved a golden mean between democracy and un-democracy.

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Jonathan Carp 03.14.13 at 3:43 am

So the Senate obstructs the functioning of the government and hinders government action. What is the problem again?

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John C. 03.14.13 at 3:56 am

Democracy is overrated. Majorities frequently change and frequently err. Sure, beneficial laws are harder to pass, but improper laws are too. There’s good reason to be concerned about an impassioned, energetic and overactive majority. Bad laws can be far more destructive of the country than the absence of good ones. Lastly, the Senate provides greater stability to the democratic process and our institutions since laws aren’t as frequently undercut by later majorities.

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Hector_St_Clare 03.14.13 at 4:41 am

Re: On that 60:1 ratio (it’s actually 66:1), this is what Yale political scientist Robert Dahl had to say about it: the only countries in the world with *less* democratic chambers are Brazil, Argentina, and Russia

Did they include the Irish Senate? Maybe they’ve changed it recently, but wasn’t that chamber explicitly meant to be nondemocratic?

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CharleyCarp 03.14.13 at 6:33 am

One man one vote isn’t the only value in play. Autonomy of smaller polities was considered, by them, to be important enough to preserve unbreakably at the time of the Constitution and, I’m quite sure, would be considered worth a battle today if anyone was really going to try to do something. In Vermont and Hawaii every bit as much as in Montana and Idaho: it’s not partisan.

Comparing the oppression you big state folks (and hey, folks should keep citing the writings of delegates from big states to the Constitutional Convention — they’re no less convincing today that they were at the time) are forced to endure to slavery is a little over the top, don’t you think? It’s not like anyone is preventing you from moving to Connecticut or Delaware, and I’m not aware of small states preventing Long island from seceding from New York.

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Mandos 03.14.13 at 12:34 pm

It’s not like anyone is preventing you from moving to Connecticut or Delaware, and I’m not aware of small states preventing Long island from seceding from New York.

“Well, no one is forcing you to shop at Wal-Mart.”

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ajay 03.14.13 at 2:38 pm

Democracy is overrated. Majorities frequently change and frequently err. Sure, beneficial laws are harder to pass, but improper laws are too. There’s good reason to be concerned about an impassioned, energetic and overactive majority. Bad laws can be far more destructive of the country than the absence of good ones.

Basically the Senate is Frank Herbert’s Bureau of Sabotage?

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Jerry Vinokurov 03.14.13 at 2:42 pm

Oh look, it’s the “democracy blows” brigade:

So the Senate obstructs the functioning of the government and hinders government action. What is the problem again?

I can see that if you subscribe to a libertarian mysticism according to which governments don’t carry out essential functions or represent their constituents you might believe this. Back here in the real world, we have actual expectations that the things we vote for might plausibly be enacted.

Democracy is overrated. Majorities frequently change and frequently err.

But aristocracies never change and never err!

Sure, beneficial laws are harder to pass, but improper laws are too. There’s good reason to be concerned about an impassioned, energetic and overactive majority. Bad laws can be far more destructive of the country than the absence of good ones.

Yeah, I mean, if it weren’t for the Senate, we might have had, I don’t know, some kind of meaningful financial reform circa 2010 (or at least a higher probability of it), which would clearly be unacceptable (because it’s government doing something, which from John C. above we know is always a bad thing). But I’m sure you can come up with a lot of instances where the Senate prevented some horrible monstrosity that had previously passed the House from becoming law that is at all comparable with literally shutting down government operations because they were opposed to treating black people like human beings.

Lastly, the Senate provides greater stability to the democratic process and our institutions since laws aren’t as frequently undercut by later majorities.

A claim frequently made but unsubstantiated by any evidence whatsoever.

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Jerry Vinokurov 03.14.13 at 2:56 pm

One man one vote isn’t the only value in play. Autonomy of smaller polities was considered, by them, to be important enough to preserve unbreakably at the time of the Constitution and, I’m quite sure, would be considered worth a battle today if anyone was really going to try to do something. In Vermont and Hawaii every bit as much as in Montana and Idaho: it’s not partisan.

Indeed, why should we care about the actual process of the debate and the views actually expressed by the people who wrote the Constitution when we have CharlieCarp to interpret it for us through the hermeneutic lens of “BUT IT WAS A DEAL!” It sure is a good thing it’s no longer 1789 and we don’t have to worry about horrible compromises to preserve slavery.

Comparing the oppression you big state folks (and hey, folks should keep citing the writings of delegates from big states to the Constitutional Convention — they’re no less convincing today that they were at the time) are forced to endure to slavery is a little over the top, don’t you think? It’s not like anyone is preventing you from moving to Connecticut or Delaware, and I’m not aware of small states preventing Long island from seceding from New York.

No one is comparing the current system to slavery; what the historical evidence makes clear is that the Senate is a compromise institution whose existence is at the very least as much attributable to the goal of the preservation of slavery as it is to anything else. Indeed, as pointed out by rea at 49, that was exactly the reason the Missouri compromise happened. The point is that the system, as it stands today, is horribly unrepresentative (the House is also unrepresentative as a consequence of gerrymandering, but far less so) and explicitly anti-democratic, as indeed it was designed to be.

“It was a deal” isn’t a coherent defense of anything; as Pauli would have said, it’s not even wrong. Worse, it’s not even an argument. “I hate democracy” or “I value my misrepresentation because I benefit materially” are repugnant and bad arguments, but at least they’re arguments as such and have the virtue of some modicum of intellectual honesty; “we should do X because we’ve always done X” has nothing going for it.

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CharleyCarp 03.14.13 at 3:49 pm

New Jersey and Connecticut wanted a Senate because they wanted to preserve slavery, and Virginia didn’t want a Senate because they hoped to get rid of slavery?

Autonomy of smaller polities. How different the world would have been if Belgium had just realized that it would be better off merged into Germany in 1914. Poland should not only have accepted its division between Germany and the Soviet Union in 1939, Poles should have clamored for it.

No one is forcing me to shop at Walmart. I don’t. I could, and maybe I’d save a nickel or two. What’s you point? If some retail magnate donated 1,000 acres to the city, on condition that it never be used as the location of a large national retail store, and the city accepted the grant as conditioned, and then 20 years later some city official wanted to put a Walmart there — well, if I was hired by the retail magnate, I’d be saying ‘that’s the deal.’ I suppose the Walmart people would make fun of me, because to them, just because there’s a legally enforceable promise, that doesn’t make it right. Well, guess what: there are other values at work, one of which is that a legally enforceable promise is legally enforceable, even if one of the parties later decides they don’t like it.

There are four solutions to the oppression New Yorkers are suffering under the boot heel of Vermont and other smaller states. (1) They can move to NJ or CT. (2) They can work to get Long Island formed into its own state. (3) They can work to convene a constitutional convention that has one man one vote as its only principle, and hope (somehow) for ratification. (4) They could suck it up, and pay attention to things that are actually oppressing people (like corporate financing of elections, say, or waging unaccountable war on individuals who may or may not be members of an enemy force). Instead, what I see is a bunch of people whining about the one thing they can’t do, and then whining all the more when it’s pointed out that they can’t do that.

Good luck getting people to join your movement.

(This is not to say that it isn’t perfectly legitimate for a professor to bring the attention of his students to aspects of our system where the principle of one man one vote does not completely control the outcome — for example, the writ of habeas corpus cannot be suspended just any time a majority wants to do it, the salaries of judges can’t be reduced, etc, etc. — because it’s very useful to understand how and why history has given us these things. And how they’ve been employed past and present to fluster the will of the majority.)

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Jerry Vinokurov 03.14.13 at 3:54 pm

That’s right, if you think that states of a single country should not disenfranchising their citizens on the basis of arbitrary border delineations, you are just like Hitler and Stalin dividing Poland. You heard it on Crooked Timber first, folks.

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Jerry Vinokurov 03.14.13 at 4:03 pm

* should not BE disenfranchising, obviously…

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Mark Field 03.14.13 at 4:08 pm

“New Jersey and Connecticut wanted a Senate because they wanted to preserve slavery”

Not “wanted”, but “willing”.

“Virginia didn’t want a Senate because they hoped to get rid of slavery?”

The only person who spoke on behalf of VA was Madison. He wanted a proper republican government, as the passages I’ve quoted show. But if VA did want to get rid of slavery, I assume you wouldn’t oppose that just to keep the Senate as is.

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Mao Cheng Ji 03.14.13 at 4:13 pm

A group of people get together, make rules, – and voila, you have a polity. Within some demarcated area. And now the borders are not arbitrary anymore. Over there, across the border, there is a different polity, with different rules. If having borders is wrong, then every national and local government is illegitimate anyway. Which is certainly a point of view, but it’s way more radical than the topic at hand.

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CharleyCarp 03.14.13 at 4:49 pm

I don’t think slavery was a primary motivation either for having the Senate or not having the Senate. Obviously, as time went on, the existence of the Senate played a real role in how things worked out, including with relation to slavery. The Senate was designed to be a barrier to quick change, and it is that.

On the political point raised above, I think Pat Toomey and Rick Santorum might have opinions on the progressive nature of big states. Just a decade ago, California got rid of a perfectly good middle of the road Democratic governor, who’d done nothing illegal, immoral, or even wrong, really, and replaced him with a Republican movie star. Does the polity that elected Alphonse D’Amato really lecture the polity that elected Mike Mansfield?

Art. I sec. 9 has a list of areas where majority rule isn’t enough. If you really want to do any of that stuff, you have to get a supermajority ad go out to the states, and get a supermajority of them to sign on. Way undemocratic. By design. Fourteen* of the first 15 amendments are anti-democratic — some majority that wants to establish a religion, or quarter troops, and the answer is no. Not without a whole big thing. Was prohibiting the establishment of religion part of a deal — I suppose the promise to enact a bill of rights in order to get ratification votes might not have been enforceable, but you’d expect a movement to repeal the Establishment Clause to be confronted not only with arguments that having the clause is a good idea, but that it was so understood by the people who approved the Constitution in the first place.

* The 11th may not have been originally intended to be anti-democratic, to the extent it was designed to prevent bond speculators from enforcing state bonds in federal court. I think, though, that its application (which has not been in accord with the exact language of the thing) qualifies.

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Mark Field 03.14.13 at 5:45 pm

“I don’t think slavery was a primary motivation either for having the Senate or not having the Senate.”

No, the primary motivation for the Senate was to give undeserved power to the small Northern States. Hamilton even called them on it; see the quote in comment 2 .

But that’s not to say that slavery and the Senate were or are unrelated. The small Northern states made concessions to the Deep South, concessions regarding slavery, in order to get those Deep South states (NC, SC, GA) to support the Senate. Putting aside all the theoretical problems with an unrepublican Senate, that alone is a good reason for us to re-think the Senate.

Your reference to Art. I, Sec. 9 proves too much. Merely having a written Constitution is “undemocratic”. After all, if “democracy” were to be the ONLY rule, then any rule other than “majority rule” is “undemocratic”. We should be able to order the destruction of Mytilene today and reverse ourselves tomorrow.

So yes, there are limits to democracy at the edges. But the structure of the Senate isn’t a limit “at the edges”. It affects even the core functions of democratic governance such as taxation. Or, you know, slavery and segregation.

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Jerry Vinokurov 03.14.13 at 6:13 pm

A bunch of people in this thread are acting like the Senate is the only barrier between us and a complete descent into madness, despite the fact that this has basically never happened.

No one whose opinions are worth reckoning with thinks “majority rule” literally means the majority can just do whatever it wants, up to and including arbitrarily executing other citizens because that’s what it feels like doing today. Of course there are limitations on what the majority can do, but those limitations shouldn’t include things like “allocating money for public works” or “regulating financial transactions.” Under the current scheme, 41 senators can torpedo literally any plan whatsoever no matter how many House members support it. Even taking away the filibuster would mean that 51 senators representing a tiny minority of the country could kill any legislation. Yes, the 55% should not be allowed to grind up the 45% into Soylent Green; they damn well should be allowed to run the country though.

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Jonathan Carp 03.14.13 at 6:19 pm

” we have actual expectations that the things we vote for might plausibly be enacted.”

I am pleased that these expectations are frustrated, Jerry. If you want to make me do stuff, you should do your own dirty work.

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Jerry Vinokurov 03.14.13 at 6:25 pm

I am pleased that these expectations are frustrated, Jerry. If you want to make me do stuff, you should do your own dirty work.

Right, I understand that your position is “the government should be a non-functional entity which doesn’t do anything.” Back here in the real world, where problems of social coordination are real and I can’t come to your house demanding you stop, say, throwing pollutants in the river I live next to, we understand that this is nonsense on stilts.

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Jonathan Carp 03.14.13 at 6:30 pm

“I can’t come to your house demanding you stop, say, throwing pollutants in the river I live next to”

You can’t? Instead you must rely on the regulatory agency whose senior executives are practically my employees? Good plan, good plan. Let me know how it works out.

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Jerry Vinokurov 03.14.13 at 6:45 pm

It’s worked out pretty well, actually; not as well as it should have worked out, but we live in a substantially less polluted environment than we did 50 years ago. But hey, I’m sure it’ll be waaaay better when angry people with torches and pitchforks and guns show up at the factory and have a firefight with the private army hired to protect it. You know, like the good old days!

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Jerry Vinokurov 03.14.13 at 6:47 pm

Also, congratulations on your discovery of regulatory capture! Clearly this means that we should never attempt to regulate anything or achieve any kind of social goals and that democracy in general is worthless.

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Substance McGravitas 03.14.13 at 7:01 pm

I am guessing there are no potholes on the roads Jonathan Carp travels because he has filled them.

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Andrew F. 03.14.13 at 7:08 pm

Mark @43:

Right, the representation question was not settled until July 23rd (or at least the 16th). But Rakove’s thesis is that the consideration of the 3/5ths compromise led certain large states to change their positions on the Senate. On June 11th, the 3/5ths question as pertaining to voting power seems to have been all but settled; and at that point the large states supported the Virginia plan; and that support stretched on until late July. Given this, would it not be surprising were Rakove’s thesis true?

An alternative thesis is that under the Articles of Confederation, members of the political establishment in small states exercised a certain amount of power. Those same members were loathe to cede power to a federal government. Though impelled to do so by necessity, they also sought to preserve as much as possible. A Senate consisting of equal representation by state, the members of which would be chosen by state legislatures, would serve such an end.

On geographic versus racial representation:

The former is more consistent with American aspirational views of individual self-determination than the latter. One need not live in any particular state, and in fact the right to travel is protected by the Constitution. Ethnic identity, however, is immutable and fixed. So while, theoretically, the voting power of a Vermont resident is available to all, irrespective of the accidents of birth, the voting power of a particular racial group is limited to those who happen to be born with certain ancestors. And so, geographic representation conflicts less with our aspirational views of individual self-determination than does racial representation.

Obviously one can take issue with how free we really are to move to one state or another, but we’d probably still agree that one has more choice over residency than race. Familiarity with the Senate may account for some of our complacency, but the reasons your students prefer geographic to racial representation run deeper, I think.

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Mao Cheng Ji 03.14.13 at 7:32 pm

Yes, racial divisions must be protected, otherwise, god forbid, they may disappear and then people will turn their attention to something meaningful.

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Jerry Vinokurov 03.14.13 at 7:38 pm

Newsflash: race is meaningful.

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Barry 03.14.13 at 7:55 pm

Jerry Vinokurov 03.14.13 at 6:47 pm

” Also, congratulations on your discovery of regulatory capture! Clearly this means that we should never attempt to regulate anything or achieve any kind of social goals and that democracy in general is worthless.”

If you know the origin of the term ‘sophomore’ and ‘sophomoric’, then you know that that guy’s comment is picture-perfect.

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Jonathan Carp 03.14.13 at 8:28 pm

The government builds free (at the point of use) roads, then acts shocked when transport is overused, and so has to regulate cars, incidentally making them more expensive, so poor people can’t afford them, so we have to start mass transit services, which get underused and cannot be self supporting, so sales taxes appear on the ballot, but get defeated because no one wants to pay higher sales taxes, so the mass transit gets cut way back, so poor people are even more screwed than they were before the free roads were built.

Maybe building the roads in the first place was a bad idea?

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Jonathan Carp 03.14.13 at 8:42 pm

“If you know the origin of the term ‘sophomore’ and ‘sophomoric’, then you know that that guy’s comment is picture-perfect.”

Folk etymology FTW!

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Substance McGravitas 03.14.13 at 8:43 pm

It’s a head-in-ass Ouroboros.

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Jerry Vinokurov 03.14.13 at 8:51 pm

Actually, all our problems started with agriculture! Or maybe climbing out of the oceans in the first place was a terrible idea! “In the beginning, the Universe was created. This has made a lot of people very angry and has been widely regarded as a bad move.”

I’m sure doing nothing for all time is the best decision always. That way we’d never even have the roads to complain about in the first place.

Jesus Christ.

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Jonathan Carp 03.14.13 at 8:54 pm

Or maybe, just maybe, forcing people to pay for stuff they wouldn’t otherwise pay for and incentivizing them to behave in ways they otherwise wouldn’t behave is, with a few exceptions, a pretty terrible idea. Maybe individuals have the most accurate information possible regarding their means and desires and should be permitted the maximum possible freedom of action.

Nah, that’s silly. Of course distant bureaucrats and random voters know best. Onward!

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Substance McGravitas 03.14.13 at 9:07 pm

Or maybe, just maybe, forcing people to pay for stuff they wouldn’t otherwise pay for and incentivizing them to behave in ways they otherwise wouldn’t behave is, with a few exceptions, a pretty terrible idea.

The best city in the world is…

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Jerry Vinokurov 03.14.13 at 9:18 pm

Yes, the best way is to force everyone to negotiate individual contracts with everyone else. Let’s see, there are 300,000 people who live in the city of Pittsburgh with me, and I need to negotiate a contract with each of them individually, and each of them needs to negotiate a contract with each of the other ones individually, so basic combinatorics tells me that the number of edges in a complete graph or size n is n(n-1)/2, so that’s just about 300,000^2 / 2 which comes out to… (fishes around for RPN calculator, the most socialist kind of calculator)… just about 45E9 contracts all told, which is clearly far more efficient than just having a city, and which will in no way bring the court system to a complete grinding halt when even a minuscule number of those contracts become the object of dispute.

This isn’t even glibertarianism, it’s innumeracy.

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Jerry Vinokurov 03.14.13 at 9:23 pm

I will admit to having made the ungenerous assumption that I need to negotiate some kind of contract with everyone in the city. But I’m not in the habit of extending interpretive charity to dumb arguments, so whatevs.

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Mark Field 03.14.13 at 9:43 pm

“Right, the representation question was not settled until July 23rd (or at least the 16th). But Rakove’s thesis is that the consideration of the 3/5ths compromise led certain large states to change their positions on the Senate. On June 11th, the 3/5ths question as pertaining to voting power seems to have been all but settled; and at that point the large states supported the Virginia plan; and that support stretched on until late July. Given this, would it not be surprising were Rakove’s thesis true?”

It’s been a while since I read Rakove, but I think the support for proportional representation was pretty fixed in MA, NY (at least for Hamilton), and PA. When the eventual vote came on July 16, MA split because Gerry and Strong compromised; NY wasn’t voting (it didn’t have enough representatives); and PA voted no. The real impact of the 3/5 clause in influencing proportional representation would have come from VA, but Madison, at least, would pretty clearly have supported that either way. It’s impossible to say how the others would have reacted, but VA voted no even with the 3/5 clause so it seems the vote was principled.

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Mark Field 03.14.13 at 9:48 pm

I should add that the suggestion that residents of NY move to CT if they feel aggrieved by the malapportionment strikes me as pretty glib. Put aside the fact that people live where they do for lots of reasons and there’s no good cause for the Constitution to penalize that. Simply as a matter of policy, having people move can’t work. If everyone in CA moved to WY, the problem wouldn’t go away, it would just mean that CA would now be the rotten borough instead of WY. The problem isn’t the geography, it’s the fact that governments represent people rather than dirt.

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CharleyCarp 03.14.13 at 10:16 pm

If everyone in California who feels personally oppressed by their underrepresentation in the US Senate were to move to Wyoming, no one but a couple of realtors would notice.

The value of political autonomy for the smaller polities was important enough to them in 1787 to demand that it be one of the few unbreakable commitments in the Constitution. I don’t disagree that it was important enough to them to make such alliances as they needed to do. In my opinion, the political autonomy of small polities is today still important enough to them that you could not get their consent to change the commitment, either by increasing the size of the Senate, or by consolidating with other states. An appeal to “democracy” doesn’t mean much to people who’s self-government you are proposing to obliterate.

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Jerry Vinokurov 03.14.13 at 10:29 pm

Ah yes, the infamous “self-government” of Wyoming that comes from feeding at the federal trough, to the tune of about $1200 per capita, net. It’s very important that we preserve their ability to simultaneously take federal dollars, decry big government, and obstruct any useful legislation.

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Mao Cheng Ji 03.14.13 at 10:42 pm

Sounds like the biggest mistake was creating this entity in the first place. Everyone is pissed at it, inside and outside.

…for some reason everybody loves Canada. …almost never hear any complaints.

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Salient 03.14.13 at 11:03 pm

You just need to say that you don’t like that the US is a federation, and that should be the topic of this discussion.

The U.S. is absolutely not a real Federation. You can’t be a Federation if you don’t follow the Prime Directive.

But what happens sometimes is that people use their rights, vested in them, to organize smaller democratic states, and then join them in a federation, where each state has, usually in one of the chambers, equal representation. Would that be a wrong way for them to exercise their right?

Correct, that would be wrong — more specifically, the people don’t have any inherent right to do that, individually or collectively. Of course, that doesn’t automatically mean the federation is illegitimate. It’s just not, like, automatically granted legitimacy due to the process employed to formulate it. The federation you describe is morally and legitimately indeterminate. (Am I allowed to say ‘legitimately indeterminate’ to mean its legitimacy is indeterminate? Grammar is failing me.)

…also thank you Jerry Vinokurov for tirelessly fielding this thread and the other one; I think reflecting on path-dependence in this way is intelligent and responsible

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Mark Field 03.14.13 at 11:05 pm

“If everyone in California who feels personally oppressed by their underrepresentation in the US Senate were to move to Wyoming, no one but a couple of realtors would notice.”

Having those goalposts on wheels must be really convenient for you.

“An appeal to “democracy” doesn’t mean much to people who’s self-government you are proposing to obliterate.”

It’s rather a mystery that you think this argument works in your favor. The people whose self-government has been “obliterated” are those of CA and NY and TX. WY residents get to govern not only themselves, but others too. Help me out here — what’s the word for that?

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Jerry Vinokurov 03.14.13 at 11:14 pm

Thanks, Salient.

Also, by the way, I should make clear that I have no opposition whatsoever to Wyoming receiving net federal money. It’s just that doing so destroys any notion that it’s some sort of self-governing sovereign entity. You cannot both possess the cake and consume it.

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Norwegian Guy 03.15.13 at 12:02 am

Andrew F. @134:

“Ethnic identity, however, is immutable and fixed.

And here I was thinking that racial representation would lead to the opposite problem. Geographic residence is relatively objective and easy to determine. On the other hand, ethnic identity is often subjective and fluid, especially in a diverse and heterogeneous country like the US where lots of people have ancestors that belonged to different ethnic groups from all over the world. Who will decide which group of senators you are allowed to vote for, and what if you want to identify with a different group in the next election? Adding more categories only makes this problem worse.

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Jonathan Carp 03.15.13 at 3:12 am

I prefer LOLbertarian, thank you, and if you are going to accuse me of innumeracy, you are going to have to explain why you feel you’d have to negotiate contracts with each and every individual in Pittsburgh.

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Jerry Vinokurov 03.15.13 at 5:12 am

I already told you that I’m not in the habit of being generous to dumb arguments. If I had to negotiate even a small portion of these bilateral contracts it would take pretty much all my life just to keep up with this. Fortunately, because I pay for things like public infrastructure via my taxes, I don’t have to do this, thereby freeing up precious time for valuable activity like laughing at lolbertarians on the Internet.

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Jonathan Carp 03.15.13 at 8:03 am

How long did negotiating your cell phone contract take you? Took me about half an hour, but I am clearly vastly your inferior.

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Mao Cheng Ji 03.15.13 at 9:29 am

“Also, by the way, I should make clear that I have no opposition whatsoever to Wyoming receiving net federal money. It’s just that doing so destroys any notion that it’s some sort of self-governing sovereign entity.”

What?? Have I been trolled? Made fun of for replying to this sort of “argument”, and insisting that the ‘united states’ is comprised of ‘states’?

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Mandos 03.15.13 at 11:13 am

How long did negotiating your cell phone contract take you? Took me about half an hour, but I am clearly vastly your inferior.

How long did it take you to hire and train your personal hospital inspectors and build your personal water treatment facilities?

fishes around for RPN calculator, the most socialist kind of calculator

Monsieur Vinokurov, I am pleased to announce that you have won an Internet.

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Katherine 03.15.13 at 1:00 pm

How long did negotiating your cell phone contract take you?

How long did you take to think of that inane example? How do you think you build cell towers and manufacture and deliver cell phones to stores without those roads you don’t think should have been built? How do you simultaneously have the necessary brain power to switch on and use a computer without also having the basic intelligence required to realise that there’s a lot more involved in having use of a cell phone than just signing a contract?

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Jerry Vinokurov 03.15.13 at 1:53 pm

How long did negotiating your cell phone contract take you? Took me about half an hour, but I am clearly vastly your inferior.

Now multiply that half hour by all the other contracts you’d have to negotiate in a world where you could no longer take for granted the things you take for granted. There goes all your time.

What?? Have I been trolled? Made fun of for replying to this sort of “argument”, and insisting that the ‘united states’ is comprised of ‘states’?

I’m sorry, what? You understand that the word “state” has different meanings depending on context, right? There’s this thing in the Constitution called the Supremacy clause, you might find it instructive in answering the question of how much sovereignty a state (as in Wyoming, not as in another country) really has.

It’s a fact of American political life that people in many small states play a game wherein they rail about how horrible the federal government is and how they’re residents of Wyoming or Montana or Alabama first, before they’re residents of the US; at the same time, they consume disproportionate amounts of federal resources, which are, by and large, provided to them by the big states. You can’t have it both ways, declaring that you’re just oh-so-independent and at the same time hoover up resources from your wealthy neighbors. It is precisely because we are all Americans that I don’t think there’s any problem (in theory) with federal wealth transfers to Wyoming; if Wyoming needs it, well, other places need it too. The problem is that, because Wyoming is a square tract of land added to the country in just such a year, while Fresno (the point of comparison in the NYT article) is a different tract of land not added in the same way, Fresno gets screwed out of aid they too could use, because Fresno doesn’t have two Senators who will raise a stink (California’s senators being spread too thin). This despite the fact that the same amount of people live in both places. To add insult to injury, Wyoming will also oppose all sorts of other laws that Fresno might like to see passed.

All this talk of communities and polities is stupid and absurd. Representatives represent people, not dirt, as has been pointed out. This is a fundamental principle of democratic justice, and airy talk of polities has no bearing on it; Fresno is just as much a “polity” as Wyoming is, only it’s not delineated in the same way. Both the people of Fresno and the people of Wyoming are American citizens and ought to have exact same level of representation in its government.

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Barry 03.15.13 at 1:56 pm

Jonathan Carp 03.15.13 at 8:03 am

“How long did negotiating your cell phone contract take you? Took me about half an hour, but I am clearly vastly your inferior.”

And did you understand the terms of that contract?
Can the company change features of it at will?
Does it mention anything like ‘according to corporate procedures’?

163

James 03.15.13 at 2:13 pm

Jerry Vinokurov @161 You complain because small states receive more money than they pay out, yet it is the very program’s your philosophies advocate that make is so. Where do you think most of the wind and solar power is built? Why do you not realize that the uber rich entertainment, music, wallstreet guys mostly live in California, New York, Connecticut? Do you do this pot and kettle thing often?

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Mao Cheng Ji 03.15.13 at 2:21 pm

Jerry, states give money to other states all the time. If you tell Bulgarians that their acceptance of EU development funds voids their sovereignty, you may see some more riots there.

This is just silly. The country is called the United States, not the “United States”; the states possess sovereignty, within the federation; the average five-year-old kid knows that. This is not controversial. The senate is, in this context, a garden variety institution.

As I suggested from the beginning, you may prefer a different system, centralized all the way from the top down, and that’s fine. Personally, I’d disagree, but that’s within reason. But now you’ve got carried away too far, arguing that the states, each with its own constitution, 3 standard branches of government, and even a military force, are meaningless and have no sovereignty. Sorry, but that’s trolling.

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Substance McGravitas 03.15.13 at 2:54 pm

You complain because small states receive more money than they pay out, yet it is the very program’s your philosophies advocate that make is so.

Which program and which philosophy? Include citations.

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Anderson 03.15.13 at 3:00 pm

Proportional suffrage for states in the Senate! And ponies for all!

It’s not going to change, people. Whether it’s good or bad is irrelevant. The small states will n-e-v-e-r agree to amending away their power.

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Jerry Vinokurov 03.15.13 at 3:20 pm

Jerry Vinokurov @161 You complain because small states receive more money than they pay out, yet it is the very program’s your philosophies advocate that make is so. Where do you think most of the wind and solar power is built? Why do you not realize that the uber rich entertainment, music, wallstreet guys mostly live in California, New York, Connecticut? Do you do this pot and kettle thing often?

Reading comprehension is not your forte, is it? You might want to check the part where I explicitly said I had no problem with wealth transfers that take place between rich and poor states, any more than I have a problem with transfers between rich and poor people. It’s just that this transfer takes place via the federal government, which is the ultimate sovereign in the US; the states’ sovereignty ends where the federal government begins.

Jerry, states give money to other states all the time. If you tell Bulgarians that their acceptance of EU development funds voids their sovereignty, you may see some more riots there.

So Wyoming is just like Bulgaria. Got it.

I ask you again: do you live in the US? Do you even know what you’re talking about? Because I’m sure that if I were to show up in a thread about the EU and display the stunning level of ignorance about EU (or any other nation’s governance) that you display about the US, I’m sure people would laugh and call me an ignorant, presumptuous American. And yet here you are, pontificating on the nature of governance in a country you seem to know almost nothing about.

This is just silly. The country is called the United States, not the “United States”; the states possess sovereignty, within the federation; the average five-year-old kid knows that. This is not controversial. The senate is, in this context, a garden variety institution.

Are you serious? Did you just seriously make a political argument on the basis of the placement of the indefinite article? That’s stupid; you are stupid for saying it; we are all stupid for reading it; and I perhaps am the stupidest of all for replying. The average five-year-old might say that, but they haven’t lived long enough to know better; what’s your excuse?

I tell you again: the sovereignty of the states ends where the federal government begins. This isn’t even a remotely controversial statement about the American political system; it’s written right into the Constitution. Alabamans are not Alabamans, they are Americans, just like Californians and New Yorkers are Americans. States don’t maintain their own military forces (the National Guard can be placed under Presidential control, and no court in the land would overrule that); they do not, whatever Jan Brewer might say, run their own foreign policy. There is no rational justification for representing Alabama disproportionately to New York, any more than there is a justification for representing Bakersfield disproportionately to Los Angeles. The basic units of representation, the things that are worthy of representations, are people; the people who are the citizens of the United States, which despite your preposterous grammar-hackery is actually a single country with a single, sovereign government.

This thread is titled “The US Senate: Where Democracy Goes to Die.” This is self-evidently true, and also unfair. I am not moved by your nonchalant dismissal of this unfairness on the basis of definitions you feel comfortable applying to a polity you clearly have only a superficial familiarity with. Maybe you don’t care about this issue because you don’t live here; fine, whatever. That doesn’t give you any special privilege to dismiss these very real concerns because you’re unable to grasp how this particular system works.

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Jerry Vinokurov 03.15.13 at 3:20 pm

DAMN YOU BLOCKQUOTE

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Mao Cheng Ji 03.15.13 at 3:30 pm

No worries, it’s readable.

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Mark Field 03.15.13 at 3:45 pm

“the states possess sovereignty, within the federation; the average five-year-old kid knows that. This is not controversial.”

States aren’t “sovereign” within any meaning of that term. In the US, the people are sovereign:

Madison: “In the United States, the case is altogether different [than it is in Britain]. The people, not the government, possess the absolute sovereignty.”

Wilson: “Perhaps some politician who has not considered, with sufficient accuracy, our political systems, would answer that, in our governments, the supreme power was vested in the constitutions. This opinion approaches a step nearer to the truth, but does not reach it. The truth is that in our governments the supreme, absolute, and uncontrollable power [sovereignty] remains in the People. As our constitutions are superior to our legislatures, so the people are superior to our constitutions…. The consequence is that the people may change the constitutions whenever and however they please.”

John Adams: “Our people are undoubtedly sovereign….”

“Cato”: “In democratic republics the people collectively are considered as the sovereign – all legislative, judicial, and executive power is inherent in and derived from them.”

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Sebastian H 03.15.13 at 3:59 pm

This thread has developed in some almost self contradictory ways. I suggested that students resisted the race metaphor because it was grossly out of proportion to the actual compromise and that drastically inflating the differences doesn’t address the actual functioning of a compromise. Corey’s response seems to be to cite that the Senate really is one of the least democratic institutions by some metrics– though why small state veto in the EU doesn’t count is beyond me.

But the alleged self obviousness of how bad the representation is raises the question of why you would need to inflate the differences so much for illustrative purposes.

I’m beginning to wonder if the largest part of the problem isn’t really the two Senators per state thing, but all the other stupid parts of how the Senate functions. In practical reality, the Senate isn’t often dramatically off the House if it could get normal 50+1 votes on things. The problem is rolling filibusters, blue slips, and the like. These practices hyper leverage the population representation issue.

But if that is the real problem, the fix is much easier. Get rid of stupid filibuster rules and other silly practices. You don’t have to go on some virtually impossible quest to have a constitutional convention to change the two Senator rule. Go on the much easier quest to change the filibuster rules. This has the added benefit of making sense to a lot of ordinary people who seem to be ok with the compromise more than you are, increasing the democratic base for your reforms.

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Jerry Vinokurov 03.15.13 at 4:06 pm

Someone has to play the bad cop. Starting the negotiation at the a priori most likely outcome is a terrible move.

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reason 03.15.13 at 4:15 pm

“though why small state veto in the EU doesn’t count is beyond me. “

Well the EU is thoroughly undemocratic – it is a union of states (with an elected representive body with almost no power tacked rather ludicrously on to it). It isn’t a Federation (in the sense that say the US or Australia or Canada or Russia or Germany are).

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Mao Cheng Ji 03.15.13 at 4:15 pm

“States aren’t “sovereign” within any meaning of that term.”

That’s a ludicrous statement.

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James 03.15.13 at 4:47 pm

Substance McGravitas @165 – “Which program and which philosophy? Include citations”

I listed two examples. They fall under Environmentalism: http://en.wikipedia.org/wiki/Environmentalism
And Progressive Taxation:
http://en.wikipedia.org/wiki/Progressive_tax

Mark Field @170 / Jerry Vinokurov @167.
States in the United States are sovereign in some areas and not in others. They lack the power to form their own Internationale treaties, yet can (and sometimes do) maintain an military independent of the Federal government.
http://en.wikipedia.org/wiki/State_defense_force. In theory, authority not specifically conferred under the Constitution, was held by citizens and the States (10th Amendment).

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Jerry Vinokurov 03.15.13 at 4:58 pm

It’s important to provide Wikipedia cites to progressive taxation, because no one in the CT comment thread knows what “progressive taxation” means.

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Mark Field 03.15.13 at 5:21 pm

“States in the United States are sovereign in some areas and not in others.”

Not in the understanding of the Founders:

James Wilson at the PA ratifying convention: “There necessarily exists in every government a power from which there is no appeal; and which, for that reason, may be termed supreme, absolute, and uncontrollable [meaning “sovereignty”].”

Charles Cotesworth Pinckney, speaking at the South Carolina ratification convention on May 14, 1788:

“In every government there necessarily exists a power from which there is no appeal, and which for that reason may be termed absolute and uncontrollable.

The person or assembly in whom this power resides is called the sovereign or supreme power of the state. With us, the Sovereignty of the union is in the People.”

There was no such thing as “a little bit sovereign”, any more than there is “a little bit pregnant”. States had, and have, certain powers, but those powers derive ultimately from the people. As Wilson said (I quoted it above), the people can change the delegation and distribution of powers by changing the constitutions whenever and however they want. That ultimate power is sovereignty.

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Sebastian H 03.15.13 at 6:42 pm

I think our modern perspective obscures those quotes. The transition being marked is a move from the ‘divine’ right of kings to the rule justified by the importance of the people.

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MPAVictoria 03.15.13 at 6:59 pm

“That’s a ludicrous statement.”

No THAT is a ludicrous statement.

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Mark Field 03.15.13 at 7:16 pm

“I think our modern perspective obscures those quotes. The transition being marked is a move from the ‘divine’ right of kings to the rule justified by the importance of the people.”

No, the transition away from the divine right of kings had already been made in England in 1688. Under Lockean theory, it then moved to Parliament (broadly understood). Here’s Blackstone describing the English view:

“… [I]t is requisite to the very essence of a law that it be made by the supreme power. Sovereignty and legislature are indeed convertible terms; one cannot subsist without the other. This will naturally lead us into a short enquiry concerning the nature of society and civil government; and the natural, inherent right that belongs to the sovereignty of a state, wherever that sovereignty be lodged, of making and enforcing laws.

[A]s the legislature of the [British] kingdom [i.e., Parliament] is entrusted to three distinct powers, entirely independent of each other; first, the king; secondly, the lords …; and, thirdly, the house of commons …; as this aggregate body …. composes the British parliament, and has the supreme disposal of every thing … Here then is lodged the sovereignty of the British constitution.”

The experience of the Revolution led the US to reject Parliamentary sovereignty — “it is the right of the people to alter or abolish it”. Replacing that with sovereignty in the people was inherent in the nature of republican government.

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JW Mason 03.15.13 at 7:30 pm

It’s not going to change, people. Whether it’s good or bad is irrelevant. The small states will n-e-v-e-r agree to amending away their power.

Always the last defense of privilege: “That’s the way it’s always been, so that’s the way it’s got to be.”

But if one looks through history, there do seem to have been a lot of people with power and privilege who would n-e-v-e-r agree to give them up, and yet who somehow no longer seem to be with us.

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Sebastian H 03.15.13 at 7:41 pm

Well when you can make the easier change of dealing with the filibuster, maybe THEN you can talk about how likely getting the small states to give up their Senators is…..

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Jerry Vinokurov 03.15.13 at 7:42 pm

Never a bad time to reference Nelson Algren!

I think the important thing is to take the long view. Will the Senate be abolished tomorrow? Of course not. But conservatives circa 1950 knew they weren’t going to sweep away the New Deal with the next election either; even beginning to undo it took decades, and most of the original opposition didn’t live to see the promised land.

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Jonathan Carp 03.15.13 at 9:20 pm

“Now multiply that half hour by all the other contracts you’d have to negotiate in a world where you could no longer take for granted the things you take for granted. There goes all your time.”

Okay, let’s see. I use the following services on a daily basis- water, electricity, sewage, garbage collection, cell service, broadband internet service, and the roads (whose very existence sans the state is questionable, but I’ll play along). Those total 3.5 hours of one-time negotiations. Since I can reasonably expect to live another 350,000 hours or so, I’d say that’s not exactly an unreasonable burden.

Let’s throw in the stuff I never use but like to have access to- security, fire, and EMS- and let’s assume that negotiating each of those contracts would take 72 hours. That puts me at a grand total of 219.5 hours of negotiation, which leaves me with about 349,780.5 hours in which to live.

Who is innumerate now, sucker? Care to play again?

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Jonathan Carp 03.15.13 at 9:23 pm

“And did you understand the terms of that contract?

Yes.

“Can the company change features of it at will?”

Sure, just like how the government can. (Although they don’t have complete freedom to change any term of the contract, unlike the government.) Here is the big difference, though- if AT&T pisses me off, I can switch to Verizon, or Sprint, or get a burner, or any of many other options. If the U.S. government pisses me off, I have to go through all the trouble of an international move. Give me a real contract over the social “contract” any day.

“Does it mention anything like ‘according to corporate procedures’?”

I’d have to check. Does the Constitution say anything about no person being deprived of life without due process of law? How’s that working out for y’all?

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Jerry Vinokurov 03.15.13 at 9:47 pm

220 hours is more than 5 standard working weeks that you’d spend doing this, by your own calculations. And it won’t be a one-time thing either, since conditions will change and all these contracts can almost certainly be ended arbitrarily by the more powerful party (i.e. not you; you know, the way it is now). So basically, you’d give up over five weeks of your time to negotiate contracts, which you’ll likely be renegotiating on a yearly basis anyway, not to mention the fact that you still haven’t solved the problem of traveling on other people’s roads because everyone has their own patch of land now and easements don’t exist because there are no statutes providing for them, all so you can avoid paying taxes. This seems like a wonderful use of your time!

Boohoo, you have to contribute to support the social efforts of the society you live in. Spare me the sob story, chief. This is why libertarianism is for children and adults with child-like conceptions of the world, not a thing that works in real life. It’s telling that your response to imperfections in actually existing governments is not fixing the bad things but burning it all down in a huff.

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rf 03.15.13 at 9:51 pm

” If the U.S. government pisses me off, I have to go through all the trouble of an international move.”

But the US government is pissing you off, and yet you remain?

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Substance McGravitas 03.15.13 at 10:21 pm

” If the U.S. government pisses me off, I have to go through all the trouble of an international move.”

To…

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Salient 03.15.13 at 11:31 pm

How long did negotiating your cell phone contract take you? Took me about half an hour, but I am clearly vastly your inferior.

I’ve never really negotiated a cell phone contract. Like, ever. They say: here’s your options. I say: wow, these options suck. But so do Nextel’s. So, ok, that one, I guess. The clerk (who doesn’t really have any bargaining power beyond ‘free activation’) shrugs and rings it up and gives me ‘free activation’ because I smiled nice, or because it’s Wednesday or whatthefuckever. When I complain about getting crappy overpriced phone service later on, the person who responds “but you chose to get that service” has labeled themselves a douchebag.

Maybe that’s worth unpacking. You can’t both negotiate a web of meaningful social connections to people and retain your full freedom to negotiate financial contracts. Srsly. Either you’re socially unmoored or you’re contractually handicapped.

This is evident to anyone who has a web of meaningful social connections in the first place. Sure, in some sense I could choose to “plague o’er both your houses” the two carriers in my area and just cut myself off from texting, the primary way my friends and colleagues communicate. That’s a financial freedom I could exercise, at the expense of my little place in societies.

But in what sense is it true, that I could do that? Anyone who even bothers to point that out is just telling me they have so little respect for the social universe in which I live that they see no reason I shouldn’t displace myself from it in order to resolve a matter of material inconvenience or irritation. It’s worse than telling me “oh just shut the fuck up already” — it’s a complete failure to acknowledge and respect my social identity. A douchebag is a person who takes no interest in acknowledging other people’s social identities.

Either you adopt a willingness to readily abandon social connections for incremental advantages in material resources, or you accept that you’re gonna have to plunk down the money and get a cell phone plan with the asinine surcharge for text messaging that they charge because they can. They can because we’re handicapped.

We’re handicapped because people matter to us, in subtle and complex ways, and that mattering propagates through our ongoing interaction. Basically every thing in the material/economic world contributes to making those social connections possible, and every loss of material agency we accede to is accepted in order to make those interactions more possible or more bearable.

I’m glad for you, James. I don’t really care if you’re being douchey or not, at the moment. That half-hour of presumably amiable negotiation seems to be a point of pride, and for whatever reason I really respect that. It’s part of who you want to be, and I think it’s great that you get to accomplish that aspect of your self in a way that’s both materially and socially constructive. (I feel the same way about people who successfully negotiate down the price of their car.)

I’ve never met anyone who negotiated in this way who didn’t feel really satisfied by it. And I can understand taking something that really satisfies you, and wanting to encourage everyone to feel free to try it for themselves, sort of half-forgetting that other people aren’t wired in a way that would make that pleasurable for them. This happens to me with reading. Lots of people don’t enjoy reading books, even ones they feel predisposed to like. But whenever I protest to someone … how could they possibly not want to read this!? It’s right up their alley!? … I am pretty much being a fiction-book douchebag. Don’t be a contractual-negotiation douchebag. Or at least, if you must be, also be aware it’s gonna come up in the conversation. k?

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JW Mason 03.16.13 at 3:53 pm

This piece on the fight to provide London with sewers (via Paul Krugman) is relevant to the conversation here. In mid 19th-century London, there evidently were no shortage of Charley and Jonathan Carps, insisting — even as fumes from the Thames made the Parliament buildings uninhabitable — that a citywide body with authority to build sewers would trample on time-honored local rights, and that government intervention would probably just make the problem worse anyway.

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Barry 03.16.13 at 4:39 pm

Jonathan Carp ” If the U.S. government pisses me off, I have to go through all the trouble of an international move.”

rf : ” But the US government is pissing you off, and yet you remain?”

If he’s a real libertarian, his choices are limited. He can look for places with low taxes on the rich, but (a) he’s probably not rich, and (b) those places have other rules he wouldn’t like.

There are places where the central government doesn’t poke into one’s life as much as the USA (barring death squads and corrupt troops), but those tend to be both dangerous and poor.

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Barry 03.16.13 at 4:41 pm

JW Mason – “In mid 19th-century London, there evidently were no shortage of Charley and Jonathan Carps, insisting — even as fumes from the Thames made the Parliament buildings uninhabitable — that a citywide body with authority to build sewers would trample on time-honored local rights, and that government intervention would probably just make the problem worse anyway.”

With ‘The Economist’ right in the thick of the sh*t. The cognitive dissonance to work there must be vast; on the one had their back issues show that the same principles being invoked with savage cruelty and ignorance; on the other hand the people writing there invoke universal an constant economic laws first documents by Adam Smith quite some time ago. But they never look at those back issues, and realize that with a different set of ‘fill in the blanks’, those stories could be told the same way today.

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Mao Cheng Ji 03.16.13 at 5:59 pm

190 “that a citywide body with authority to build sewers would trample on time-honored local rights”

A mere city managed – without an Eurasia-wide parliament, with equal representation??? No way, impossible…

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Dick Veldkamp 03.19.13 at 7:17 am

Dear Mr Robin

I don’t know if you are aware of this, but the problem of how to represent states in a fair way if they have (say) only one representative in some council was solved mathematically some time ago. In short, if you want to have each citizen in each state to have the same influence in that council (the UN for example), than the weight of the vote of a state’s representative should be proportional to the square root of the number of citizens in the state. This is approximately how the weights in the European council of ministers are distributed. See here:

http://arxiv.org/ftp/cond-mat/papers/0405/0405396.pdf

Needless to say, the system was not implemented exactly in the EU, because each state tries to hold on to the weight it has now by historical accident (if it is to their advantage).

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