Note 36. Equal Representation of States in the Senate
The Possibility of a Constitutional Amendment
I’m an advocate of a radical reform of state representation in the U.S. Senate. I would like to keep a relatively small Senate—say, 150 members—but to allocate seats proportionate to state size. Nearly everyone who shares my point of view gives up on the idea because it is so highly unlikely that it will happen. And yet I get questions about it from casual observers of politics, particularly from those upset about the way senators representing a minority of the U.S. public can constitute a Senate majority. It calls for a short essay on a subject that never makes it into textbooks.
The central issue concerns two provisions of the Constitution. Article I, Section 3, of the Constitution provides that the Senate “shall be composed of two Senators from each State.” Article V stipulates that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” The Article V clause is often referred to as an “entrenchment” clause. Of course, the requirement of affirmative consent of every state to provide non-equal representation of the states stands in contrast to the requirement of ratification by three fourths of the states for other elements of the Constitution. Three fourths is a high threshold—more than half of the states would be disadvantaged by proportionate representation. Unanimous consent is simply impossible to reach.
The question raised by reformers and legal scholars is whether the Constitution truly cannot be amended without unanimous consent of the states. I use this essay to describe the scholarship on the issue. The scholarship on the entrenchment clause is more limited than most other major features of the Constitution, perhaps because it seems to be a closed matter. I conclude by noting an alternative approach, one that requires a constitutional amendment but leaves the two-senators per state arrangement in place.
State Size
Let’s begin with the tremendous disparity in the population sizes of the 50 states (Figure 35-1). In the 2020 census, California had 39.5 million people and Wyoming had 576,851, which makes California 68.5 times larger. Vermont comes in at 643,077. Both Wyoming and Vermont are much smaller than the average size of a House district, which is about 770,000, and yet have two senators and one representative. In total, the smallest 26 states, whose senators constitute a hypothetical Senate majority, have just 16 percent of the nation’s population. California’s growth rate exceeds Wyoming so the ratio will become more lopsided over the next few decades.
The small-state bias in policy outcomes due to Senate representation, already plain, is likely to deepen (see Note 33). I can only speculate that as California, Texas, New York, and other states continue above average rates of growth, attention to the disparity of state representation in the Senate, a coequal branch of Congress with the House, will become more glaring and costly for large-state citizens.
A Little History
James Madison was deeply disappointed with the equal suffrage of states and entrenchment clauses in the Constitution. In major part, this was a result that the equal representation of the states (one vote each) in the 1787 constitutional convention. Constitutional historian Jack Rakove observes that
Madison assumed that if the more populous states could reach consensus on a new constitution, the less populous ones would ultimately yield to their decision. Madison believed that the small states could be persuaded that they neither needed nor deserved an equal vote in either house of Congress. Under the Virginia Plan proposed by his “dear friend” Edmund Randolph when debate opened, some scheme of proportional representation allotted by population and wealth would apply to both houses of the new Congress.[1]
This was, perhaps, Madison’s most significant miscalculation going into the convention.
The decision on equal representation came near the end of the convention. Known later as the Great Compromise between small and large states, the issue was initially decided by a vote of five states to four states. Large-state delegates were divided about how to respond to the vote but let the matter rest. On the last day of the convention, a delegate from Connecticut, a small state, proposed an entrenchment clause, a proposal that was rejected, leaving the state suffrage clause amendable. With small state delegates whispering that they were suspicious of large state intentions and all delegates eager to bring the convention to a close, the convention approved the entrenchment clause.
In the following years, equal state representation gained justification that did not seem to motivate convention delegates. The most prominent theoretical argument is that the United States represents both a union of states and the American people so it is proper to have a house of Congress to represent each principal, with the Senate reflecting the membership of separate states in a union. The realpolitik argument is that small and large states have distinct interests that will produce policy biases against small states if states are represented solely on the basis of population, as the House is. The Senate is required to provide small states special protection from the House. The latter claim, Rakove avers, “remains the most enduring fallacy in the American constitutional tradition.” Small states have a common interest in competition with large states. A comparison of Wyoming and Vermont politics, or Texas and California politics, illustrates the point.
While the Article V state suffrage clause is sometimes described as the only entrenchment clause, that’s not quite true.[2] Article V also provides that “no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect [two other clauses on slavery].” This “sunset” entrenchment had relevance until 1808, but it has distinctive phrasing—“shall in any manner affect.” It appears to prohibit an amendment to that clause. Moreover, Article VI provides that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” In the only use of “ever” (or even “never”) in the Constitution, the “shall ever” phrase certainly implies permanence. Without it, the religious test clause clearly is amendable.
Plainly, the Framers were hardly consistent in the phrasing used for entrenchment, although “in any manner affect” and “ever” appear to imply a deliberate effort to completely entrench their provisions. Indeed, these two entrenchment clauses may have different implications than the equal suffrage of states entrenchment clause, which itself may be amendable.
Constitutional Arguments
Legal scholars give the entrenchment of state suffrage relatively little attention, but the balance of opinion has long been that the Framer’s intended equal state suffrage to be sacrosanct--unamendable. They raise a variety of questions that I cannot address here. May and should one generation bind all future generations to a particular governing rule in a constitution? Are there norms beyond the Constitution and implied by democratic practice that allow or bar amendment? Can more “permanent” features of the Constitution be added now or in the future? If permanent clauses are permissible or desirable, is there a point at which the practical (and may unforeseen) consequences of a clause justify setting aside the permanence? If so, how is that accomplished?
The question that interests me here is: Is the equal suffrage entrenchment clause amendable? There have been a variety of answers.
One interpretation is that the equal suffrage entrenchment clause itself cannot be amended because it is self-evident that permanent equal suffrage was the Framer’s intent. Moreover, the Great Compromise was essential to the approval of the Constitution at the convention and by the states. In this view, dropping the entrenchment clause would remove the protection of consent that the clause creates and weaken the bond among the states that is foundational to the union.
A second interpretation, which I find to be the stronger one, is that the entrenchment clause may be amended. If it was deleted by amendment, it would then it would be possible for a second amendment to amend the equal suffrage clause. This is a “two-step” process advocated by some constitutional scholars. It would mean that, under the usual current Article V amending procedure, two thirds of each house of Congress and three fourths of the states would have to approve of an amendment to delete the equal suffrage amendment clause and then again, using a parallel process, approve another allocation of Senate seats to the states.
Proponents of the two-stage process argue that the Constitution does not entrench the equal suffrage entrenchment clause. In contrast the broad “self-entrenching” language of “in any manner affect” of the slavery clause and “ever” in the religious test clause, there is no language that bans amendment of the equal suffrage entrenchment clause. It is not self-enforcing and there is no other reference to the clause.
Did the advocates of small state interests make a mistake in not completely entrenching the equal suffrage clause as others did the slavery and religious test clauses? Perhaps, but it may have been done in haste in a somewhat chaotic moment as the constitutional convention came to a close. They did manage to give equal suffrage of states more protection than most other provisions in the Constitution, but the possibility of a two-step amendment process was not debated. The possibility gives reformers a glimmer of hope that the Senate can become more representative of the American people at some point in the future.
The Casten Approach
Rep. Sean Casten (D-IL) of suburban Chicago offers a different approach. Casten’s constitutional amendment would leave the two-senators-per-state arrangement in place but add 12 senators who would be elected at-large. That is, the Senate would have 112 members, 12 of whom would be elected on a national basis with ranked-choice voting. The 12 additional senators would have six-year terms and be divided into three classes of four, which stand for election along with the current classes with staggered terms. Casten’s proposed amendment has other wrinkles; key sections are shown in the appendix. A key wrinkle is that Casten proposes that 12 electoral votes be added to the Electoral College and allocated on the basis of the national vote, which would reduce (but hardly eliminate) the arithmetic advantage of small states.
The Casten approach appears to circumvent the entrenchment issue, but it raises issues that are likely to stand in the way of congressional approval and state ratification. Small states are likely to predict that at-large senators will come from large states and reduce their influence in Congress. If so, small-state opposition is likely to be just as much of an obstacle as it is for the two-step process to handle entrenchment.
Final Thoughts
While I have some sympathy with the argument that we should honor compromises vital to adoption of the Constitution, it is hard to argue that the Framer’s could anticipate the consequences of growing disparities in state population sizes on representation in the Senate. In any case, the Framer’s showed some interest in creating unamendable provisions in the Constitution and may have done so in the slavery and religious test clauses. They simply did something different, perhaps unintentionally, for the equal suffrage of states.
I’m equally unimpressed with the argument that equal suffrage of the states is more fundamental to American democracy than other elements of the Constitution. Many many features of the Constitution—three branches, bicameralism, the bill of rights—are at least as important as equal state suffrage in the Senate and are subject to the standard amendment process.
Nevertheless, and regrettably, I do not think there is even a remote chance of modifying equal representation of the states in the Senate or adopting the Casten approach in the foreseeable future.
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Constitutional Amendment proposed by Rep. Sean Casten (H.J.Res 23, 118th Congress) (excerpts):
SECTION 1. In addition to the Senators from each of the several States, the Senate of the United States shall be composed of twelve Senators at-large, who shall be elected by the People of the United States for six years, and each Senator at-large shall have one vote. Senators at-large shall meet the same age and citizenship requirements as the Senators from each of the several States.
SECTION 2. Senators at-large shall be elected using a nationwide system of ranked choice voting, under which each eligible elector may rank the candidates for office in the order of the elector’s preference. Each elector’s ranking shall hold equal weight in the determination of winning candidates. Seats of the Senators at-large shall be divided equally among the three Classes of Senate seats, so that one third may be chosen every second year. Except as provided in section four of this article, all candidates shall appear on a single ballot, with the number of winning candidates being equal to the number of seats of Senators at-large then up for election. The first election of Senators at-large shall occur no later than the second regularly scheduled general election for Federal office following the date of the ratification of this article.
SECTION 3. An eligible elector shall include any United States citizen who is eighteen years of age or older; who has registered to vote by the deadline of the citizen’s State of residence; and who otherwise meets the eligibility requirements, as set by the citizen’s State of residence, for voting in a general election for Federal office.
SECTION 4. Within thirty days of the seat of a Senator at-large becoming vacant, the President shall fill the vacancy by appointing a Senator at-large of the same political party as the departing incumbent. If the seat is not up for election at the next regularly scheduled general election for Federal office, a special election shall be held to determine who shall serve the remainder of the term. Such special election shall coincide with the next regularly scheduled general election for Federal office, and candidates for the seat shall appear on a ballot separate from that of the other seats of Senators at-large then up for election.
SECTION 5. The election of Senators at-large shall be administered by each of the several States. Each State shall submit all ballots cast within its jurisdiction to such Federal entity as Congress shall by law provide, which shall collect and count the ballots and announce the winners.
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[1] Jack Rakove, “James Madison’s Critique of the Senate Still Holds,” Wall Street Journal, September 16, 2022 (https://www.wsj.com/articles/james-madisons-critique-of-the-senate-still-holds-11663335204)
[2] George Mader, “Binding Authority: Unamendability in the United States Constitution—A Textual and Historical Analysis,” 99 Marq. L. Rev. 841 (2016).
[3] Ibid. Also see Lawrence H. Tribe, American Constitutional Law 111–12 (3d ed. 2000).