Article 1, Section 3, Clause 1: Composition of and election of Senators
The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.
We have argued that both history and the structure of the Constitutional text itself indicate that Congress was intended to be the supreme branch of the federal government, and that the House of Representatives was to be the supreme chamber of Congress and the great engine of democratic government. In this post, we will argue that, like a nuclear pile, this great engine of democracy was to be checked and contained by additional institutions forming successive layers of protection for the rights of minorities from the dangers of pure democracy. Each such layer is increasingly antidemocratic in its character, yet essential to the safe operation of the whole system. The first of these layers is the Senate.
The Senate is sometimes regarded as the senior and more powerful chamber of Congress. This reflects a modern and slightly elitist view that we do not think was necessarily shared by the Framers. We believe the framers expected the House’s power of the purse, which we will consider in due course, to be more significant than it has turned out to be in practice. Likewise, there is reason to believe that the Framers expected the House’s exclusive power of impeachment to be exercised more often than it has. The exclusive prerogatives granted to the Senate — to ratify treaties, try impeachments, and approve nominations of Federal officers by the President — seem more formidable in practice.
Yet we discern a pattern to the Senate’s prerogatives that reflects the thinking of the Framers. The Senate’s special prerogatives are all of a checking nature. The Senate cannot originate spending bills, but it can vote them down. The Senate cannot impeach members of the executive branch or judiciary, but it can acquit those impeached. The Senate cannot negotiate treaties, but it can refuse to ratify those negotiated by the President. The Senate cannot appoint officers of the executive branch or judiciary, but it can refuse its consent to such nominations. The Senate is the great system of control rods in the nuclear pile of democratic government.
Americans generally do not see it this way, because the Senate was granted considerable independent legislative power. The Senate is proscribed from originating spending bills, but may originate any other kind of bill or resolution. The House and Senate each may refuse its consent to the other chamber’s bills, and there is no override of this veto. A House that voted 435-0 for a bill could still be thwarted by a Senate voting 49-51 against the bill. Of course, the reverse is also true; a Senate voting 100-0 for a bill could also be thwarted by a House voting 217-218 against the bill. In this sense, the two chambers are more nearly coequal than any other two branches of the federal government.
This view of the Senate as a checking branch of government is reflected also in its institutional character. This will become clear as we examine Section 3.
Section 3, Clause 1, has four elements. First, each state has two Senators. Second, they were originally chosen by the state legislature. Third, they serve for a term of six years. Fourth, each Senator votes independently.
The equal representation of each State was the outcome of the Great Compromise of 1787, which created the Congress of two chambers that we have today, and which we have previously argued was the greatest breakthrough for American classical liberalism in its history. The controversy it resolved was over whether States should be represented equally or by population. The argument for representation by population seems obvious to the modern mind, and so we will turn our attention to the arguments for representation by state. Each State had a distinctive character, more then than is the case today, and each State was jealous of its prerogatives. The smaller States would not willingly give up much of their power to the federal government if their character and prerogatives were thereby imperiled. This was one of the weaknesses of the Confederation that preceded the Constitution: Because the Congress of the Confederation was a single chamber, unchecked, the states dared not give it much power nor much capacity for decisive action.
By providing for two chambers in the new Congress, the Framers sought to divide Congress against itself in such a way that it could be trusted with more sweeping powers. These could be exercised only if both a majority of the people approved, through their elected representatives in the House of Representatives, and if a majority of States approved, through the Senate. A few populous States are prevented from ramming their views down the throats of less populous States of different local character, but a coalition of small States are likewise prevented from ramming their views down the throats of a majority of the population. The whole structure is meant to require broad consensus to achieve any legislative end.
But, in addition, the Compromise of 1787 ensured that the two chambers would be of different composition, chosen by different constituencies in different ways. We have argued that the key thing is that they are different, and that this puts in place an important firewall against groupthink. From this perspective, any nontrivial difference might have helped to achieve this end. We suggested, not altogether seriously, that one might have had one chamber elected by women and the other by men; or one chamber elected by those over 45 and the other by those under 45; or one chosen by those whose household income is above the national median and the other by those whose income is below that median value. Each of these might also have been arguably more democratic, if the cutoff age or income was chosen carefully. But we are content with the current system, because it also respects the notion that different States might have different cultures and that these regional differences ought not to be imperiled by the central government. This is the concept of particularism, which we heartily endorse.
The Senate’s character as a checking branch was reflected in its less direct election. The Senate was still a democratic institution; it was chosen by state legislatures that in turn derived their legitimacy from the people of the states. But it was one level removed from the pure democracy of the House. To anticipate a topic we must revisit in due course: We believe the 17th Amendment, which instituted the direct election of Senators, was a grievous error, reflecting either a failure to appreciate the wisdom of the Framers, or a hostility to that wisdom. We believe it crippled much of the Senate’s ability to function as a checking institution.
The terms of Senators was set at six years, the longest of any elected official under the Constitution. Furthermore, as we will see presently, the terms were meant to rotate, so that the composition of the Senate could not change abruptly. The Senate would thus be a source of stability and continuity in the new government. The long term in office meant that a Senator had considerable freedom to exercise his own good judgment and to resist populist impulses from the people of his state, or even its legislature. The courts have consistently held that the constitutional specification of a six-year term in office means that states cannot recall Senators. In this respect, Senators are not like ambassadors of sovereign states, who can be recalled at will. Again, this reflects the character of the Senate as a checking institution.
The Senators of each State need not vote alike. This differs from practice under the Confederation, in which the delegation of each State had a single vote, no matter how many delegates they were entitled to in Congress. That some States had up to seven delegates simply meant that they had more voices in debate; when the vote was taken, the delegation was compelled to vote together, or not at all. (The vote of a State was decided by a majority of its delegation; if a delegation split evenly on a question, its vote was not counted.)
Though not specifically called out here, an obvious consequence of the representation of each State by two Senators was that the Senate would be smaller than the House. In 1787, the Senate was 26 members, versus 65 for the House. Today, it is 100 members versus 435. This suggests that the Senate was intended to be a truly deliberative body, in contrast with the House of Representatives. Put another way, the Senate must be small enough for genuine debate; the House need only be small enough to prevent its members becoming rationally ignorant. We have considered suggestions that the House ought to be much larger, with as many as 6500 members. We think these proposals have some merit; but we also fear that even the present House of 435 members is showing signs of succumbing to rational ignorance. The need for a deliberative body is another argument for the equal representation by state in the Senate: The House is barely proportional in its representation even with 435 members, due to the widely varying populations of the states; a Senate small enough to be capable of true deliberation would likely leave many states completely unrepresented. A deliberative body and a representative body are different things, and it is appropriate to require every law to be supported by a majority of both.