I was going to write about this, but my friend Cato at his Letters From Cato blog has already done so:
. . . and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. – Article V, U.S. Constitution
The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. – 17th Amendment of the U.S. Constitution
Even a curmudgeon like me will concede that not all debates over constitutional meaning are crystal clear. Interpreting original meaning (or intent, if you prefer) can be difficult. Trying to determine whether the freedom of speech clause of the first amendment really applies to political donations, or whether the first amendment even applies to the federal government at all, is not necessarily black and white.
But then there are certain clauses which are really not open to interpretation. There’s no creative way to argue that a 31-year old man born and naturalized in France is eligible for the presidency. Similarly, the equal composition of the Senate is laid out in black and white throughout the constitutional text. More importantly, this is one element of the constitution that cannot simply be amended by the traditional process. As laid out in Article V of the U.S. Constitution, no state can be deprived of equal suffrage in the Senate without its consent. This means that for all practical purposes equal suffrage in the Senate cannot be altered unless every single state assents to this change, which really means that equal suffrage in the Senate cannot be altered. This would seem pretty straightforward.
Not if you’re a writer for the Atlantic with a day job teaching Legal Studies at Business Ethics at Wharton, because Eric Orts has a proposition for you: we’ll just legislate this pesky hindrance away. No, seriously:
There’s a better, more elegant, constitutional way out. Let’s allocate one seat to each state automatically to preserve federalism, but apportion the rest based on population. Here’s how.
Start with the total U.S. population, then divide by 100, since that’s the size of the current, more deliberative upper chamber. Next, allocate senators to each state according to their share of the total; 2/100 equals two senators, 3/100 equals three, etc. Update the apportionment every decade according to the official census.
In the new allocation, the total number of senators would be 110. The total is more than 100 because 10 of the smallest states have much less than 0.5/100 of the U.S. population but are still entitled to one senator each.
So how do you get out of the clear constitutional prohibition against this change? Legislation, of course:
First, consider that Article V applies only to amendments. Congress would adopt the Rule of One Hundred scheme as a statute; let’s call it the Senate Reform Act. Because it’s legislation rather than an amendment, Article V would—arguably—not apply.
Second, the states, through the various voting-rights amendments—the Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth—have already given their “consent” by directing Congress to adopt legislation to protect equal voting rights, and this delegated power explicitly applies to “the United States” as well as the states. The Senate Reform Act would simply shift seats according to population. No state or its citizens would lose the franchise.
Note that even states that did not ratify the voting-rights amendments have, functionally, consented to them, and thus also to the constitutional logic supporting a Senate Reform Act. As Justice Clarence Thomas explained in 1995, “The people of each State obviously did trust their fate to the people of the several States when they consented to the Constitution; not only did they empower the governmental institutions of the United States, but they also agreed to be bound by constitutional amendments that they themselves refused to ratify.”
There are so many logical problems with this that you can drive a truck through them, and fortunately Charles Cooke has done the job natural-born Americans won’t do:
Go here to read the rest. Devices like written constitutions only work when all the major political players agree to play by the rules of the game. When that is not the case, bullets inevitably take the place of ballots. There is an ever growing element on the port side of our politics giving off continual signals that they respect our Constitution about as much as they respect their fellow citizens who do not share their political prejudices.