The Senate’s Growing Unrepresentativeness
Has the Senate, which gives disproportionately more power to states with small populations, outlived its usefulness? Sandy Levinson thinks so:
Wikipedia has a very helpful entry on the population of the US states. One gets to 50% of the total population, according to 2008 census estimate, with the nine largest states, California, Texas, New York, Florida, Illinois, Pennsylvania, Ohio, Michigan, and Georgia. (Note, though, that the percentages are calculated by including the populations of US territories such as Puerto Rico and the District of Columbia, which, of course, have no voting representation in Congrees.) So one might divide the Senate into two groups, one of 18 senators who represent a majority of the population, the other of the remaining 82 senators who represent slightly less than 50% of “we the people.” If one adds four more states, North Carolina, New Jersey, Virginia, and Washington, one reaches 60% of the total population, and adding yet eight more states, ending with Minnesota, reaches 75%.
So what this means is that 42 senators represent 75% of the population, while the remaining 58 (beginning with Colorado and going through Wyoming) have just short of a filibuster-proof majority in the Senate while representing, by definition, less than 25% of the total population. It is possible, of course, that 2010 census figures will demonstrate that, say, it would take the top 22 states, with 44 senators, to get up to 75% of the population, so that the remainder of the population would have “only” 56 senators.
What’s interesting about this, though, is that it’s not radically different than it was in 1789, when the Constitution (and thus the Senate) came into being. Here, roughly, is the population of each of the original 13 states as of the 1790 Census:
I say “roughly” because the 1790 Census counted Vermont, then part of New Hampshire; Kentucky, then a county in Virginia; and Maine, then part of Massachussets as separate entities even though they wouldn’t be admitted to the union as states until 1791, 1792, and 1820 respectively. I’ve added them into the table above and included them into the totals, while listing them separately.
The U.S. population, including territories, was 3,929,214 which means 1,964,607 is 50%. Adding the four most populous states together (including Kentucky as part of Virginia and Maine as part of Massachusetts ) brings you well above that, to 2,124,738. Adding the 5th state takes you over the 60% mark. So, yes, the disproportionality has increased — 30% of the states accounted for half the Senate at the founding vice 18% now — but I’m not sure that it’s enough to matter from a fairness standpoint.
The most fruitful anti-Senate argument, it seems to me, is the changed nature of what states are now versus what they were then. In 1787, the 13 states came together as sovereign entities united mostly for trade and defense policy in a confederation. That compact wasn’t working, so they decided they needed to become a union, albeit one where the constituent members still had virtual sovereignty over domestic affairs save interstate commerce.
We have long since evolved, however, into a national state with the 50 “states” as secondary creatures. The evolution was gradual, with the central government grabbing more power, using an ever-expanding interpretation of what constituted “interstate commerce,” stretching the Elastic Clause beyond recognition, and ignoring the 9th and 10th Amendments. We saw radical redefinitions after the Civil War, the New Deal, and the Civil Rights era.
Mostly, though, we went from a society that was 94.9 percent rural in 1790 to one that was 81 percent urban in 2000. We live a much more cosmopolitan existence than our romantic notion of ourselves would indicate. A goodly chunk of us live and work in different states from where we were born and many of us have moved multiple times. Few, if any, of us still think of ourselves primarily as Virginians or Californians or Mainers; we’re Americans.
In the current environment, it’s harder to argue that California’s 36.8 million people — nearly 12% of the U.S. population — should have the same representation in the Senate as Wyoming’s 532,668 (a mere 0.17% of the population). But, frankly, it’s an academic question, as Levinson acknowledges:
I suggest that there is no more merit to this configuration of power than there is, say, to the present allocation of veto power in the Security Council of the United Nations or the assignment of independent representation in the General Assembly, prior to 1989, to Ukraine or Byelorussia. All of these can be readily explained as the result of “necessary” compromises at the time of the formation of the institutions in question. But, of course, the same is true of the 3/5 compromise re the “representation” of slaves. The inability of the Security Council to reform itself, because of the assignment of veto powers, is a major problem with the contemporary United Nations. Ditto the Senate.
A political compromise forged for an entirely different time has become an anachronism. But it’s one we’re stuck with.
Note: I inadvertently omitted Pennsylvania from the original list and included Maine as a separate state. I’ve corrected myself inline rather than as an update for the sake of flow. The argument is actually substantially strengthened now, since Pennsylvania was the 2nd most populous state.