Constitutionalism and Democracy

From White Supremacy to Governmental Gridlock

Daniel Wirls

• Publisher: University of Virginia Press
• Year: 2021
• ISBN:
  9780813946917
• Topic: Politics & International Relations
• Subtopic: Political History & Theory
• Index: Politics & International Relations

In this lively analysis, Daniel Wirls examines the Senate in relation to our other institutions of government and the constitutional system as a whole, exposing the role of the "world's greatest deliberative body" in undermining effective government and maintaining white supremacy in America.

As Wirls argues, from the founding era onward, the Senate constructed for itself an exceptional role in the American system of government that has no firm basis in the Constitution. This self-proclaimed exceptional status is part and parcel of the Senate's problematic role in the governmental process over the past two centuries, a role shaped primarily by the combination of equal representation among states and the filibuster, which set up the Senate's clash with modern democracy and effective government and has contributed to the contemporary underrepresentation of minority members. As he explains, the Senate's architecture, self-conception, and resulting behavior distort rather than complement democratic governance and explain the current gridlock in Washington, D.C. If constitutional changes to our institutions are necessary for better governance, then how should the Senate be altered to be part of the solution rather than part of the problem? This book provides one answer.

1

Creating Something Exceptional?

Power and Purpose in the Design of the Senate

The Senate was different, if not exceptional, from the start. But so were the presidency, the judiciary, and even the House of Representatives. If the Senate was exceptional it was not because of its elegant design and clarity of purpose. Emerging from the deliberations in Philadelphia, the Senate was rather like the committee’s version of a horse, which is to say a camel.1 The Senate was placed at the crossroads of the national system of separated institutions sharing power and at the intersection of state and national sovereignty. First, the Senate was half of a bicameral Congress endowed with legislative power. Second, it shared in the executive power of appointments and treaties, with a potentially decisive role in the composition of the Supreme Court. Finally, the politics of the Constitutional Convention added another special purpose—the Senate would be the institutional embodiment of federalism and state power in the national government. It was to be the smaller, wiser, and more detached legislative chamber, the institutional home of state power and state equality and the quasi-council to the executive on appointments and treaties. In this way the Senate became the crucible for resolving several of the thorniest problems of American constitutionalism. In particular, the Senate was exceptional for the manifest tension and outright contradictions between its roles as both a Senate of far-sighted and detached national statesmen and a Senate of delegates sent by self-interested state legislatures. That tension was at the heart of the Constitutional Convention, and from the time the Senate first achieved a quorum, on April 6, 1789, to today, it has never been resolved.

Its rich mixture of purposes and powers continues to make the Senate unique among the world’s political institutions. As the equal partner in one of the world’s most independent and robust legislatures, it is the most powerful upper house in the world. Whereas many countries have unicameral legislatures or upper houses or senates with significantly less power or even only symbolic importance, the US Senate combines a formidable array of institutional characteristics and powers that make it distinctive and autonomous. The higher age and citizenship requirements for members, as well as the longer and staggered terms, contribute, more or less, to differences in the character of the upper house compared to the lower. Similarly, state equality in the Senate contrasts sharply with the proportional representation of the House. The distinctions produced by elections are reinforced by the institutional elements. The House and Senate are granted nearly equal powers; in fact, the Senate has a few exclusive powers, including the approval of treaties and appointments, that give it a singular status among upper houses. And unlike many upper houses, the modern Senate has enjoyed at least equal (un)popularity and (dis)respect among the people.2

But it is this hybridity and complexity that have allowed the Senate over the years to conflate the various aspects of its constitutional role into a generalized idea that it has a special and different purpose that transcends the multiple but carefully defined roles given it by the Constitution. In particular, senators have drawn on and distorted the collection of attributes and responsibilities outlined above to justify what became the dominant feature of the Senate: its rules of procedure, which create and protect minority power, and the effect of those rules on Senate behavior. Modern senators have tended to portray minority power, as structured by Senate rules of procedure, as the sine qua non and raison d’être of their institution. This goes directly against what the Constitution actually mandated. The constitutional means to the end of better deliberation—first and foremost its smaller size, but also the age of senators and their length of citizenship, longer terms, and, originally, selection by state legislatures—have, over time, been displaced in favor of rules created by the Senate that empower minority obstruction.

This chapter focuses on key aspects of the Senate’s creation at the 1787 Constitutional Convention to show the Senate’s complex if not exceptional design: what the convention created, but also what it did not create. Each of the first three sections of the Constitution (Articles I on Congress, II on the executive, and III on the judiciary) divides into an opening section on composition and a second section on powers. That is, each article begins with how the branch is composed, particularly its mode of selection, qualifications for office, and duration of selection or appointment.3 The second part of each article is about powers, specifying the branch’s duties and authority. This chapter concentrates on two sides of the Senate’s composition. On one side were the elements of relative consensus, which were nearly everything about the Senate’s republican purpose and the characteristics suited to that, including age of senatorial candidates, length of citizenship, duration in office, indirect method of selection, and especially the small size of the Senate. On the other side was the element of nearly insurmountable conflict, which was the basis of representation: Would the Senate be proportioned by state population, like the proposed House of Representatives, or by state equality, like the existing Congress of the Confederation? The result of that blending of consensus and conflict was a hybrid and conflicted Senate.

Instead of providing a comprehensive account of the decisions made that summer in Philadelphia, this chapter highlights that all government institutions—the Senate, the House, the executive, and the judiciary—were equally novel creations; in some respects, the latter three were more innovative than the Senate. Also, it is important to recognize that the framers did not intend to enhance the power of a Senate minority; minority rights were not a central concern of those who drafted the Constitution, and equal representation in the Senate was not about minority rights. The framers’ decision to base Senate representation on state equality produced a compromised Senate with a conflicted mandate, however. Overall, the Senate was not the hub of Madison’s balancing act to “enable the government to control the governed; and in the next place oblige it to control itself.” It was the entire governmental system—composed of Congress, the executive, the court, and sovereign states—not the Senate per se that would prevent majority tyranny and allow for the safe and effective use of governmental power.

Consensus: A Republican Senate

Though they confronted a daunting task, the delegates who convened in Philadelphia in 1787 were not without some advantages. The formidable talents of many of the participants notwithstanding, many of the sharpest minds opposed to the project of fortifying the national government decided to boycott the meeting, partly in the expectation that it would collapse under its own weight. The convention was, as a result, populated by many of the most nationally minded among the political elite. This not only greatly enhanced the prospects for something more than a mere reformation of the Articles of Confederation, it broadened the level of agreement on several features of a good government. The delegates shared similar conclusions based on their republican beliefs and experiences in their state governments. One such conclusion was a widely shared belief in the desirability of a two-chamber legislature, with an upper house balanced against the more popular lower house.

At several points during the debates, the delegates expressed confidence about the self-evident appeal of bicameralism. Virginia’s George Mason argued that “the mind of the people of America, as elsewhere, was unsettled as to some points; but settled as to others.” He was sure it was well settled on two points, “1. in an attachment to republican government. 2. in an attachment to more than one branch in the Legislature.”4 Even the democratic soul of the convention from unicameral Pennsylvania, James Wilson, vigorously defended the need for a two-chamber legislature: “Is there no danger of a Legislative despotism? Theory and practice both proclaim it. If the Legislative authority be not restrained, there can be neither liberty nor stability; and it can only be restrained by dividing it within itself, into distinct and independent branches. In a single house there is no check, but the inadequate one, of the virtue and good sense of those who compose it.”5

The extent of this accord on bicameralism is evident from the opening actions of the convention. Madison and the Virginia delegation came to Philadelphia prepared with a detailed argument about the defects of the Articles of Confederation and, more important, a set of resolutions outlining the structure and powers of a new national government. Edmund Randolph “opened the main business” of the convention on May 29 by presenting both, and the fifteen Virginia resolutions became the basis of debate and deliberation on May 30. The first of these resolutions was a general call to action to correct and enlarge the Articles of Confederation. The second and third resolutions were about the structure of the new legislature. The second stated that representation in the national legislature “ought to be proportioned to the Quotas of contribution, or to the number of free inhabitants.” And the third resolved that “the National Legislature ought to consist of two branches.”6 In other words, the core of the entire proposal was a bicameral legislature based on some form of representation proportional to population.

The resolution for a two-house legislature was the opening item on May 31, and it engendered no debate or opposition. As Madison recorded in his notes, “The Third (3d) Resolution ‘that the national Legislature ought to consist of two branches’ was agreed to without debate or dissent, except that of Pennsylvania, given probably from complaisance to Doc. Franklin who was understood to be partial to a single House of legislation.”7 But Pennsylvania’s dissent on this issue disappeared thereafter. This effectively unanimous vote on bicameralism took place even after it was clear that the Virginia Plan would end the equal representation of states, which had been a foundational feature of the Confederation.

The proposal for proportional representation, discussed the day before, was more controversial and was ultimately postponed. Nevertheless, the delegates came close to agreeing that “the equality of suffrage established by the articles of Confederation ought not to prevail in the national Legislature, and that an equitable ratio of representation ought to be substituted.” However, when a delegate from Delaware reminded the convention of his state’s explicit instructions to protect state equality, even if it meant abandoning the proceedings, the convention agreed to a postponement.8 Yet Delaware did not object on the first vote on bicameralism the next day. Small states, it would seem, at first saw the need for bicameralism as more important than the potential threat to state representation.

The accord on bicameralism was based in no small part on the delegates’ widely shared assumptions about the distinct and special purposes of the upper house. As part of earlier work on the creation of the Senate, I found and categorized every remark or speech that made reference to a desired or ideal trait or purpose of a properly designed Senate.9 From the beginning of the proceedings to July 16 and the vote on the so-called Great Compromise, the decision to have the upper house composed of two senators from each state, nineteen delegates, most of the active participants during the period, offered at least some opinion about what they felt were the important characteristics of a Senate. Some only hinted at their preferences; others expounded repeatedly and at some length. A total of forty remarks or speeches contain one or more preferred traits or purposes of a Senate, producing a total of sixty-five individual invocations of one or another characteristic.10

Though the delegates voiced a number of opinions, the list is a harmoniously interrelated one and the level of agreement is evident. Aside from seven mentions of the importance of a second chamber as a check on legislative power, five characteristics dominate: small size (fourteen mentions), select appointment (eight), independence (eight), wisdom (eight), and stability (eight). These five account for 71 percent of the references to an ideal upper house. Moreover, they elicited no dissent beyond John Dickinson’s one claim that small size was not important. At fourteen references, small size is the most frequently invoked trait, and its central importance became apparent as the debate over legislative apportionment unfolded and dominated the convention. The remarks about size manifested concern for producing the quality of debate in which only a small group can engage. Madison would later provide this trenchant summary of the logic of numbers: “In all very numerous assemblies, of whatever characters composed, passion never fails to wrest the scepter from reason. Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.”11 Almost every delegate agreed with this judgment; they deemed small size the principal characteristic that would foster quality deliberation.

Small size would be complemented by a select appointment. As noted, these remarks were made prior to the final decisions about the composition of the Senate, but even so, it was clear that the upper chamber would not be directly elected. The Virginia Plan had the upper house selected by the lower chamber from nominations made by states. Complicated as it was by the later compromise in favor of having two senators per state, the eventual decision to have the Senate selected by state legislatures reflected the delegates’ consensus preference for an indirect and refined selection process. And regardless of the final form it took, the goal was to produce wiser, more experienced, and independent senators. It should be noted that the refined process of selection was as close as the delegates got to a proxy for wealth and property. A few delegates linked the Senate to representation and protection of property, but their views constituted a minority, even amid the secret deliberations. Even so, such remarks were usually not simply about representing the interests of property; instead, possession of considerable property would imbue officeholders with the wisdom and independence to form an effective Senate. Property, independence, education, and breadth of experience, in the belief of most of the delegates, came together as a package in society.

In turn, independence and stability would be enhanced by additional factors beyond the mode of selection, in particular the length of term. The Virginia Plan did not specify a length of term for either branch of the legislature. There was a blank to be filled in for the number of years for the first branch. The members of the other branch were “to hold their offices for a term sufficient to ensure their independency.”12 This implied only that the term of the second branch should be longer. In fact, this distinction between the two legislative chambers was confirmed and reinforced with every discussion and vote on the issue of terms. The initial votes gave the House a term of three years and the Senate a term of seven years. At other points, two delegates, Hamilton and Read, even proposed life terms for senators. While there was almost no support for life terms, there was no doubt that a significant difference between the two chambers would prevail. A few expressed concerns about the longest terms proposed, including nine, seven, and six years. Some resistance to much longer terms relative to the House came from small-state delegates who were holding on to the idea—which thus far had not been winning the day—that the upper house would represent states primarily. And some stemmed from anti-aristocratic if not democratic beliefs from delegates whose states had annual elections or who feared that senators, especially those from distant states, might get too independent and forget those who sent them. Nevertheless, the final decision on two years for the House and six-year staggered terms for the Senate evinced the delegates’ commitment to the kind of independence and stability that a longer term would produce.

An important note on staggered terms: they were designed and included to balance the dangers of the longer term by allowing partial renewal and change in the Senate every two years. Staggered terms, as we shall see in chapter 4, were not part of the Senate’s conservative design. They were not intended to make the Senate into a continuing body to prevent change. The convention never discussed such a concept.

Finally, the convention considered two other electoral qualifications relevant to such things as independence, wisdom, and stability. These were age and length of citizenship. Should there be a minimum age and period of citizenship to be eligible to serve in one or the other chamber of the national legislature? As with many such details, the Virginia Plan left these matters unspecified, leaving a blank space for the minimum age and not even mentioning citizenship. The age blank was filled in early on, well before the apportionment compromise was reached, when the consensus on the characteristics of an ideal Senate still drove the process. The convention decided initially to not have any age qualification for the first branch but specified thirty years for the Senate. The unspoken logic was clear: let the voters decide for the first branch, but a minimum age is prudent for the Senate. The convention amended this ten days later with a decision in favor of twenty-five years as a minimum age for members of the House.13

Decided much later, length of citizenship was more controversial than age, but not so much as a distinction ...

Table of contents

• Cover
• Title Page
• Copyright Page
• Contents
• Acknowledgments
• Introduction: The Senate and American Democracy
• 1. Creating Something Exceptional? Power and Purpose in the Design of the Senate
• 2. Equal Representation: The Perpetual Great Compromise
• 3. Equal Representation’s Inexorable Clash with Political and Racial Equality
• 4. The Right of the Living Dead: Staggered Terms, Continuing Bodies, and Constitutional Myths Senators Tell Themselves and America
• 5. The Filibuster: From Southern Citadel to the Sixty-Vote Senate
• 6. “Cooling the Coffee”: More Myths Senators Tell Themselves, and the Filibuster’s Clash with Effective Government and the Constitution
• 7. The Supermajority Senate Curtailed: Nuclear Options and Mushroom Clouds of Hypocrisy
• Conclusion: Constitutional Repair and Reparations
• Notes
• Index
• Recent Books in the Constitutionalism and Democracy Series