The Senate's Anti-Democratic Nature Is Even More Toxic Than I’d Realized
Some states owe their admission to the Union to nothing more nation-building than 19th-Century pols’ wanting to add new senators to one side of the aisle.
Many people, including me, are critical of what the Constitution calls “the equal suffrage of the Senate”—the provision by which each state gets two U.S. senators, regardless of how few people live there. We can be critical until we’re blue in the face and Hell freezes over. The equal-suffrage provision is the only thing in the Constitution that the founders made unamendable.
There was nothing hypocritical involved. The founders’ Constitution didn’t want the Senate to be directly representative of the citizenry. As the legislature’s upper chamber, the Senate was meant to be small and appointed, not big and elected. It was thus to serve as a check on the more democratic lower chamber, aptly named the House of Representatives.
The Senate was also the chamber where, originally, the states’ legislatures were represented in the national government as separate, equal sovereign elements. It made sense that the states be equally represented there, and that the state legislatures appoint the senators, each state in its own way.
I’ve written elsewhere about the cognitive dissonance involved in blending the check function with the representation of the legislatures, but that was the compromise, that was the deal. Until 1913, each state appointed two senators; since then, thanks to a constitutional amendment, voters in each state have elected the same number.
There are all kinds of good reasons not to like that system. Still, it’s rooted in some basic founding intentions and preconceptions.
But the two-senators-per-state system has also had some totally unintended consequences, and only recently have I begun to understand that it’s these unintended consequences—even more than the founders’ anti-democratic intentions—that, in the 19th Century, began building out the country in the politically warped manner that has given us the particularly anti-democratic conditions that we have to struggle with today. The country, that is, as we and not the founders know it.
The constitutional historian Jack Rakove, in his recent essay on the electoral college, refers to scholarship by Charles Stewart III of MIT and Barry Weingast of Stanford’s Hoover Institute, published back in 1992, showing certain western states as, in origin, what Rakove, Stewart, and Weingast call “rotten boroughs.” (The paper, “Stacking the Senate,” is paywalled, but here it is, just in case.) The evocative term “rotten borough” is drawn from a situation in the 18th- and 19th-century British parliamentary system, where some election districts had very few people living in them, yet sent representatives to the House of Commons anyway. Such boroughs’ few voters were subservient to local figures powerful in one of the national parties, and would vote how they were told, so the seat could be “won” by anybody the party decided to award it to. The corruption involved came under attack in the 1830 Reform Bill and was on its way out by the 1860’s.
On its way out in Britain, that is. What Rakove, Stewart, and Weingast are saying is that even as the old British system was abolished, a move in the U.S. to create a new type of rotten borough, by forming new low-population states of the Union, took off in the 1860’s, ‘70’s, and ‘80’s. We’re talking here about Wyoming, Idaho, and North Dakota, among others—exactly the kind of western state that critics of the two-senators-per-state system complain has created the current anti-democratic overrepresentation of a partisan minority in national government at the direct expense of majority rule.
Today’s overrepresentation of the few, it turns out, giving a minority party an unfair advantage, doesn’t just reflect an unfortunate feature of the founders’ design for the Senate. Actively creating overrepresentation, for immediate partisan outcomes, brought those states into existence in the first place. At a time when their populations and regional economic prospects in no way fulfilled Congress’s standards for forming new states out of territories, Wyoming, Idaho, North Dakota, and Nevada were admitted as states anyway. Some of their population numbers shouldn’t even have qualified them for a single House member. Who cared, though?—when a party desperate to retain a threatened majority in Congress could wield its majority power there to admit a more or less fake new state and thus pick up two whole new senators overnight. As modern jurisdictions, these states may be seen as rotten to the core: for all of some of their inhabitants rugged “states-rights,” survivalist philosophies, mere hollow puppets of national-level insider partisan wrangling in corrupt Washington, D.C. . . . !
OK, I’m exaggerating. Somewhat. As I’ve also learned from reading Stewart & Weingast, the situation was more complicated than that. For one thing, local interests played a role in new-state creation; some local interests opposed state-creation. For another, northerners and southerners in the Dakota territory didn’t get along and had differing trade routes and eastern connections; there were some local reasons for splitting then up as states. A lot of other interesting politics are clarified in the paper as well.
Still, Oregon was admitted in 1858 with a population below the standard yet with strong projections for rapid growth, which were borne out. When Nevada, by contrast, was admitted in 1864, it had grim growth prospects, also borne out over a very long term. Nevada exists only thanks to the partisan lure of stacking the Senate (plus a desire to pen the Mormon territory of Utah between Nevada and Colorado). In the 1890 census, Oregon’s population already gave it two House members. If the population standards had been observed for Nevada, it would have been eligible for admission in 1971.
It’s ironic on multiple levels, then, that majorities in Nevada, unlike the other western “rotten boroughs,” have gone for Bill Clinton, Obama, Hillary Clinton, and Biden. Things have changed there, of course, drastically so.
But that irony points to another complication, for progressives, in considering this history of 19th-century Senate-stacking, via the creation of new western states, which nowadays tend to lean right.
Which party was pushing to create these states as rotten boroughs?
The Republicans.
Yes, the 19th-century good-guy party—in particular “Radical Republicans” or at least “Lincoln Republicans.” As Stewart and Weingast put it:
Republican leaders were preoccupied with the danger that a Southern re-entry into the political system might produce an overthrow of their coalition at the polls and a restoration of the Jacksonian coalition to its former dominance. Nor was this a chimera: the success of the Republican revolution in national policy-making had been predicated upon enormous artificial majorities that were produced in a Congress in which the Southern states were not represented.
There’s a lot more to look at there. Today I’ll leave it at this. The Republican Party that now benefits from the 19th-Century stacking of the Senate (and the Electoral College!), motivating the creation of many of today’s low-population, often very reliably right-wing-friendly western states, no longer operates as the party of Lincoln, putting it mildly. And the founders, in their desire not to believe that parties would play the driving role in U.S. politics that parties naturally do play, created, with the Senate, a monster whose minoritarian mechanisms have gone far beyond anything either the anti-democratic founders or the pro-democracy Lincoln Republicans could ever have imagined.