No, Wild-Eyed Progressive Law Professor, You Can't Change the Senate By Majority Vote

One of the great thing about lefty law professors is they generate an amazing amount of Constitutional law porn both for self-gratification and for fellow lefties, seemingly, playing as though they were an object of Louis C. K.’s fantasies. The articles they write, while often wildly entertaining, are monotonous in their plot lines. They all focus on easy ways the Constitution can be changed or re-interpreted so as to accomplish whatever greater good is the fad of the moment. The current liberal fad ruling by direct majority rule and so they are challenging the very existence of the US Senate because the Third World sh**hole that is Wyoming gets the same number of senators as the Shangri-la of California. The current entry in the self-gratification sweepstakes is in The Atlantic by a Penn Law professor named Eric Orts. I’m sure he’s a highly cited authority and a well regarded public intellectual but I’ve been fortunate enough to never have heard of him before. Here he lays out the scope of the problem as he sees it:

In 1995, Senator Daniel Patrick Moynihan declared, “Sometime in the next century the United States is going to have to address the question of apportionment in the Senate.” Perhaps that time has come. 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.

Pundits, professors, and policy makers have advanced various solutions. Burt Neuborne of NYU has argued in The Wall Street Journal that the best way forward is to break up large states into smaller ones. Akhil Amar of Yale Law School has suggested a national referendum to reform the Senate. The retired congressman John Dingell asserted here in The Atlantic that the Senate should simply be abolished.

It is sort of humorous how he tarts up his Atlantic article with a paean to fairness when his paper on the subject is simply a raw grab for power:

The United States Senate is not representative of American citizens and violates basic principles of political equality and democracy. Each federal election reveals and reinforces this basic fact. In the midterm elections of the Senate in 2018, for example, Democratic candidates received 57 percent of the total votes in the nation, and Republican candidates received only 42 percent, but Republicans gained two seats. These results follow from the traditional constitutional rule that allocates two senators to each state regardless of population.

The controversial confirmation of Judge Brett Kavanaugh to the Supreme Court in October 2018 provides another example illustrating the Senate’s unequal representation. Senators voted 50 to 48 to confirm, but this bare majority represented only 44 percent of American citizens. Similarly, the Senate confirmed Justice Neil Gorsuch in April 2017 by a 52 to 45 vote, with the majority representing only 42 percent of the population.

As you go forward, keep in mind that the real objective here, other than mental masturbation, is to transfer power, permanently, to the Democrats. That’s all it is.

Amazingly, this plan doesn’t require magic wands or a hot Hermione on a broomstick, but it does require willing suspension of disbelief and blue smoke and mirrors.

There’s a better, more elegant, constitutional way out. Let’s allocate one seat to each state automatically to preserve federalism, but apportion the rest based on population. Here’s how.

Start with the total U.S. population, then divide by 100, since that’s the size of the current, more deliberative upper chamber. Next, allocate senators to each state according to their share of the total; 2/100 equals two senators, 3/100 equals three, etc. Update the apportionment every decade according to the official census.

The obvious reply is, “This is impossible! The Constitution plainly says that each state gets two senators. There’s even a provision in the Constitution that says this rule cannot be amended.” Indeed, Article V, in describing the amendment process, stipulates that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”

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.

First, consider that Article V applies only to amendments. Congress would adopt the Rule of One Hundred scheme as a statute; let’s call it the Senate Reform Act. Because it’s legislation rather than an amendment, Article V would—arguably—not apply.

Second, the states, through the various voting-rights amendments—the Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth—have already given their “consent” by directing Congress to adopt legislation to protect equal voting rights, and this delegated power explicitly applies to “the United States” as well as the states. The Senate Reform Act would simply shift seats according to population. No state or its citizens would lose the franchise.

What Orts is saying is that the Congress can pass a law that changes the Constitution but it doesn’t need the Amendment process to do so. The first barrier that would need to be crossed here is to get senators from 26 states to agree with the proposition that their state only needs one senator and that half of them should lose their jobs.

The driving force behind this nutbaggery is the idea that the Voting Rights Act requires that minority populations be given more representation and that law can be used to override the plain text of the Constitution.

A more comprehensive empirical analysis confirms that the current allocation of senators disfavors—and thus “denies” or “abridges”—the rights of nonwhite citizens. Comparing the national population of whites, blacks, Hispanics, and Asians with the median representation in each state, researchers find that “whites are the only group that Senate apportionment advantages.” See Table 5. “With regard to issues of race and ethnicity,” they conclude, “Senate apportionment works contrary to the purpose of protecting minorities” and “most dramatically disadvantages Hispanics.”

The Nineteenth Amendment forbids abridgement of the right to vote on the basis of “sex,” and census data shows that some states are unequally represented in this respect. For example, the small states of Alaska, Nevada, and North Dakota represent men disproportionately (52 or 51 percent) compared with other states. See Table 6. The Nineteenth Amendment likely applies to voting apportionment. Citizens who self-identify as lesbian, gay, bisexual, or transsexual (LGBT) are also likely protected under the Fourteenth and Nineteenth Amendments.

Survey data show a disparity of distribution. Large states including California and New York report a significantly higher percentage of LGBT citizens than smaller states, though the overall distribution is rather even (within a percentage point or two throughout the country). See Table 6. Voting rights with respect to “age” are protected by the Twenty-Sixth Amendment, and census data indicate differences in distribution here too. The large state of Florida has a relatively higher percentage of older residents who are therefore underrepresented. Younger voters (measured by census data available for the range of eighteen to twenty-four) appear to be relatively evenly distributed among the states, though this age group may be overrepresented given larger percentages in North Dakota and Rhode Island.

Charles C. W. Cooke, at National Review, had a good laugh at this.

Never in the history of the English language has the word “arguably” done as much work to support the sentences around it. And never, ever has it been so cruelly exposed to ridicule. On Orts’s rationale, Congress could amend any part of the Constitution by legislation. Want to abolish the First Amendment? Just pass the repeal through Congress on a simple majority vote. Easy! That the various branches of government are formed by the Constitution itself — and, by extension, that they cannot amend their own structure without that Constitution being amended — is the most elementary rule in all of American law. It cannot be undone by wishful thinking. Indeed, if anything, the Senate’s structure is the most permanent variable in the entire U.S. Constitution, given that it not only enjoys the same protection as everything else, but has an extra layer on top that ensures that any alteration be made with the consent of those directly affected. For Orts to treat the most heavily guarded item within the document as if it were the most easily circumvented is nothing less than extraordinary, and suggests to me that he believes his audience is stupid.

That post, which I encourage you to read, sent the good professor into what can only be described as the feckless academic equivalent of road rage (read the whole thread and have a cigarette):

There are a few takeaways from this.

First, Orts is not a terribly serious person and he’s sort of a shining example of how glib ≠ bright. He’s trolling for clicks on his article, for retweets, and for speaking engagements. It is the shyster lawyer abandoning night court for the speaking circuit.

Second, the people he is writing for are mostly stupid. The Seventeenth Amendment, for instance, clearly states that each state will have two senators. You can’t even “arguably” get away with ignoring that not the least because the Voting Rights Act is inferior to the Constitution.

Third, the people who are reading this and who aren’t stupid are profoundly dangerous. I’d go so far as to say that Orts is disqualified from any federal job because he can’t take an oath to “support and defend the Constitution…without any mental reservation or purpose of evasion.” Once a non-trivial number of people have decided that they don’t like the system of rules that exists and they want to rewrite those rules for the explicit purpose of racial discrimination–which is exactly what Orts is recommending–then we are at a point where there is no longer any common ground with these people. Where that takes us isn’t all that pretty.

The bottom line is that the US Constitution is a compact between sovereign states. Period. Full stop. End of discussion. Each state joined the compact with the explicit promise that it would have equal representation in one chamber of the Congress. That isn’t negotiable. No amount of legal mumbo-jumbo and disingenuous exegesis of precedent changes that. There is one peaceful way this compact changes: via Amendment or Convention.

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