Eric W. Orts, a professor at the Wharton School of the University of Pennsylvania, in “The Atlantic” of January 2, 2019, has an ingenious solution to the problem of the U.S. Senate. Ingenious is how he would describe his solution, not necessarily how I would describe it. In the following paragraphs, I will examine his “solution” to the one branch of the government whose responsibility is oversight.
Orts gets one thing right, for which I will give him credit. Orts describes the Senate, as : “the current, more deliberative upper chamber.” Yes indeed, it is more deliberative. Perhaps Ort was sleeping in his government class, as he seems to miss other responsibilities of the Senate: The Senate approves treaties, confirms Supreme Court nominees, federal judges, the appointment of ambassadors, and only the Senate can remove an impeached president. Andrew Johnson and Bill Clinton were impeached, but neither were removed by the Senate. The House of Representatives does not remove anyone in the federal government. In his brilliant solution, Orts makes no provisions for what to do with those powers; he just wants the majority of the population to be more “equally” as he describes it, represented, which he considers unequal in the present configuration.
The U.S. Senate, from the beginning, was the more deliberative body that represented the states. (Notice I said states, not people.) If you are looking for proof, bear in mind that until 1912, (the 17th Amendment) the state legislatures voted for who would represent their state as a senator, because senators represented states, or, they used to, anyway. Senators are elected every six years, so that they might have more time to deliberate than the members of the House of Representatives, who are elected every two years by popular vote, and immediately begin their campaigns for re-election once they are sworn in to the House. In his brilliant rearrangement of our government, Mr. Orts’ shallow analysis ignored the responsibilities of the Senate, or, in an even more brilliant move, would just make all of the appointment confirmations a popularity contest. We don’t need a deliberative body, we need a popularity contest in Mr. Ort’s view. We already have a popularity contest called the House of Representatives.
In another brilliant observation, Orts states: “We should keep in mind that the original one-state, two-senators rule was written and ratified by property-owning white men, almost half of whom owned slaves, and that the voting-rights amendments were adopted after a war to end slavery.” That statement could not be more accurate, although those property-owning white men risked everything they had, in fact, their very lives, when they declared their independence from a monarch. Many men enslaved by monarchs could have done the same all over the world, but it took decades longer, with the exception of France, for populations to shake off monarchies.
For Mr. Orts' information, many property-owning white men died to free the slaves, who had little or nothing to gain by freeing them, as only a small percentage of the population owned slaves, (and most of those who owned slaves could afford paying $300 rather than get drafted) but they gave their lives anyway. Many of the “property-owning white men” didn’t live to see the results of their efforts to promote a new birth of freedom, nor did many of those who perished in the Civil War, but I thank Mr. Orts for his brilliant belaboring of the obvious. If all of what those the “property-owning white men” did was so simple and easy, why didn’t any other nations join in with overthrowing monarchs? Those the “property-owning white men” had to fight off England again in the War of 1812 because they were enslaving American sailors on the high seas. Slavery was never unique to America, Mr. Ort.
According to Mr. Orts: “Today the voting power of a citizen in Wyoming, the smallest state in terms of population, is about 67 times that of a citizen in the largest state of California, and the disparities among the states are only increasing. The situation is untenable.” Actually, Mr. Orts, the disparity among the states is evidence that the system is working, and an untenable situation such as you describe would be if those underrepresented Wyoming citizens were bullied by more populated states such as California and New York. The other “untenable” situation is the inability of our legislators to reach any sort of a compromise. Compromises. You know, Mr. Orts, like the compromises that were made in the founding documents of this great nation, a characteristic that our present legislators flagrantly lack, insisting that their people have a greater voice in this republic and everyone else’s rights and interests should be ignored. No thanks, Mr. Orts. Our republic already gives majorities to the more populated states in the House of Representatives, with the more deliberative Senate as the balancing factor, the legislative body that represents the states equally. I might have to say that again; the term is equally, Mr. Orts.
Side-Stepping Our Constitution
According to Mr. Orts: “This seems like a showstopper, and some scholars say it’s ‘unthinkable’ that the one-state, two-senators rule can ever be changed. But, look, when conservative lawyers first argued that the Affordable Care Act violated the Commerce Clause, that seemed unthinkable, too. Our Constitution is more malleable than many imagine.” Our Constitution is malleable when it suits certain people such as Mr. Orts. One of the arguments regarding ObamaCare was that people would be taxed for breathing, and until ObamaCare, breathing was not considered an act of commerce. Simply staying alive became an act of commerce, such as purchasing something or engaging in some kind of commerce. ObamaCare made being alive an act of commerce, which to many of the conservative lawyers objected, setting a precedent that opened a can of worms never before considered. Now that breathing is an act of commerce, what will be next? Decorum prevents me from mentioning other bodily functions, but now that breathing is an act of commerce, I can think of several bodily functions that I would like to perform on the ruling that breathing is an act of commerce.
The Power of States, Not of Populations
The Senate was never meant to be a popularly-elected branch of the government, just as the Electoral College was designed to disallow the ability for the more popular regions to gain control and thus enslave the less populated states. Read your history, Mr. Orts. The less-populated states refused to sign the Constitution of this republic until they were granted some branch of the government that would represent them and that their voices not be lost in the crowd. If I may say so, this equal representation of the Senate has been one of the key elements of why this republic has lasted some two-hundred and thirty-one years. I suggest Mr. Orts read “On Liberty” by John Stuart Mill before he sits down at his computer and suggests more tyranny or Democrat-leaning diatribes on what is fair in this, or any other republic. Did I mention that strangely enough, the politicians named by Mr. Ort who have suggested that we reform the Senate were Daniel Patrick Moynihan, and John Dingell, both Democrats from more-populated states. Does anyone see a pattern here?
The “untenable” situation is that the more populated states are unwilling to enter into any kind of compromise while the smaller, less populated states hold their ground, more than likely representing the very people that Mr. Orts wants to disembowel. Like most spoiled Democrats, Mr. Orts is of the mistaken impression that the majority should be granted the absolute rule of this republic, and to question the wisdom of the majority is some justification to exenterate to silence, once and for all, the minority that, up to the present, has been represented. If there would ever be a reason to leave the union, Mr. Orts' “solution” would be as good of a reason that has come along since the Civil War. The United States is not, nor have we ever been, a pure democracy, and certainly not the ochlocracy Mr. Orts suggests, nor is circumventing our Constitution in order to deny states’ rights anything but a ticket to another armed conflict. The people are represented by population in the House of Representatives, and the states equally in the Senate.
If the majority’s representatives are not doing enough for their constituents, I would suggest they find more effective legislators or legislators who have a greater ability to compromise, and forget this unconstitutional rearranging of our republic. Mr. Orts would be better sticking to his area of expertise, (if he has one) which seems to be business, or to learn the origins of this republic and the tenets of which it was founded, and stop coming up with brilliant ideas (as well as unconstitutional pernicious plans on gutting the under-populated states) on how to desecrate the minority.