Senate Democracy: Our Lockean Paradox

Senate Democracy: Our Lockean Paradox

68 Am. U. L. Rev. 1981 (2019).

* Guardsmark Professor of Legal Studies and Business Ethics, The Wharton School, University of Pennsylvania.  Executive Committee, Andrea Mitchell Center for the Study of Democracy, University of Pennsylvania.  Thanks to Mia Wells and Kevin Thomas of Lippincott Library, John Piotrowski of Wharton Research Programming, and Tamara English for research assistance.  Thanks also for comments at a presentation co-sponsored by Wharton and the Mitchell Center.  For specific suggestions, I thank Mitch Berman, Vince Buccola, Peter Conti-Brown, Nico Cornell, David Dreisen, Bill Ewald, Dan Farber, Brian Feinstein, Jeff Green, Laura Gibson, Rob Hughes, Adam Jacobi, Julian Jonker, Juliet Lapidos, Seth Kreimer, Sarah Light, Phil Nichols, Keigo Obayashi, Carol Orts, Julie Orts, Diana Robertson, Matt Roth, Fred Schauer, Amy Sepinwall, Richard Shell, Alan Strudler, Michael Vandenbergh, Harlan Wilson, and David Zaring. In addition, I thank readers of The Atlantic who responded to an early version of my ideas, and Knowledge@Wharton and the Randy Tobler Show for feedback during radio interviews.

The United States Senate is radically unrepresentative.  American citizens in populous states such as California, Texas, Florida, and New York have much less voting weight than citizens in lightly populated states.  Senate representation is also significantly biased in terms of race, ethnicity, and color, as well as other constitutionally protected characteristics such as age and sex.  Effective reform of the Senate, however, presents a Lockean paradox because amendment of its representational structure is prohibited by Article V of the Constitution, and the amendment of Article V is blocked by supermajority hurdles.

This Article proposes a Senate Reform Act to resolve this paradox.  This reform would adjust the number of senators allocated to each state by relative population.  It recommends a Rule of One Hundred to determine population units by which to allocate senate seats according the official decennial census, with a minimum of one senator per state.  The reform would thus respect the principle of federalism and maintain the Senate at roughly the same size.  It would yield structural co-benefits such as a more representative Electoral College and an easier path to statehood for underrepresented citizens in the District of Columbia, Puerto Rico, and elsewhere.

The proposed Senate Reform Act finds its constitutional authority in the Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments. After explaining how the reform would work, this Article defends its constitutionality through traditional modes of interpretation:  text, structure, history, moral principle, and legal precedent.  It concludes with an examination of political balance and feasibility.