The Democrats claim that there is no sense in impeaching Bush and
Cheney because they don't have the votes in the Senate. In saying
this, they are obscurely pointing to how anti-democratic the Senate
is. I'll spell it out.
1) The problem of the Senate is an example of the fact that one major
reason the Constitution is in danger is because it unjustly defends
inequities.
Most of us are convinced that the Constitution must be preserved
because it is vastly preferable to what Bush and Cheney, and
presumably their successors, want to substitute for it. Most of us are
convinced that corporations and the rich have vastly too much power
for any shred of democracy to survive in this country. Most of us are
convinced that the Democrats are in cahoots with the Republicans and
that they are not doing what they could do to impeach and stop war.
I'm convinced of those three things. But they create a blind spot for
us.
How could the current constitutional crisis occur if the Constitution
did not mandate some actions that defeated the apparent purpose of the
Constitution? The Civil War could not have happened if the
Constitution had not allowed slavery though slavery flatly
contradicted the grand purposes announced in the Declaration of
Independence—that all men are created equal, that we have inalienable
rights, that we deserve to be free. The basic hypocrisy of the
Constitution on slavery led to the Civil War. What are the hypocrisies
and inconsistencies of the Constitution that have led to our problems
now?
I'll deal with just one today: the Senate. The Senate was created to
be to the House of Representatives as the House of Lords is to the
House of Commons. Senators were supposed to be representatives of our
upper class, our supposed aristocracy. They were supposed to be "the
most illustrious" of us, a more "select" group whose superior wisdom
was supposed to stabilize the popular whimsies of the House. But what
was supposed to guarantee their superiority? Only the fact that they
were less numerous. The assumption was that if there aren't as many,
there will be more competition for fewer slots and somehow the cream
will rise to the top. But is this true? Is Senator Liebermann, for
instance, a better person than Representative Kucinich?
The problem is that the Senate was used to solve two problems at once.
It was supposed to create a virtuous elite but there was nothing to
guarantee the virtue. At the same time, it was supposed to give the
smaller states some security in their dealings with the larger states.
This it did. With such a vengeance, in fact, that it is a wonder the
more populous states agreed to it merely for their relative advantage
in the House. The constitutional compromise on legislative
representation made the Senate anti-democratic in its own peculiar
way. Instead of guaranteeing virtue in the Senate, it guaranteed
inordinate power for the least populous states in the amendment
process, in trials of impeached officials, in ordinary votes in the
Senate, and in the electoral college—for the Senate's elitism affects
all four of those functions.
Our three basic convictions—about the virtue of the Constitution, the
vices of plutocracy, and the covert reality of collusion between the
parties—have blinded us to the meaning of the Democrat's perpetual
excuse that it is senseless to impeach because they don't have the
votes in the Senate.
To get at this meaning, I've been examining the 2000 census figures. I
ask about different hypothetical votes in the Senate, "Through the
actions of their senators, how much power do the voters in the less
populous states have compared to the power the voters of the most
populous states have through their own senators?" The figures are
conveniently laid out at
www.enchantedlearning.com/usa/states/population/shtml, the populations
of the 50 states (and DC) arranged from the most populous, California,
to the least, Wyoming.
2) The citizens of the less populous states are "more equal" than the
citizens of the heavily populated states.
I'll start with the extreme inequities, then go to more subtle ones.
If you look at the figures in different combinations, the magnitude of
the inequities begin to sink in. There are a lot of implications to
these figures, so I'll give a number of them.
Through the Senate, a citizen of Wyoming has 68.6 times as much power
as a citizen of California.
21 states with 31,579,777 elect 42 senators while 1 state (California)
with 33,871,648 elects 2. Relative to the people of the 21 least
populous states, Californians are underrepresented by 22.5 times in
the Senate.
In the Senate 26 states with 49,911,176 people can outvote 24 states
with 222,752,218 people. In this situation the voters of the less
populous states each have 4.5 times as much power as the voters in the
more populous states. The Senate can deliver a majority vote from the
representatives of less than one fifth (18.3%) of the people of the
country.
27 states with 54,212,437 elect a solid majority--54 senators, while 2
states (California and Texas) with 54,723,468--elect only 4. People in
those less populous states average 13.5 times the individual power
through the Senate of people in Cal and Tx.
31 states with 73,178,624 people elect 62 senators while 3 states
(California, Texas, and New York) with 73,699,925 elect only 6. People
in those less populous states have 10.33 times the power through the
Senate of individuals in Cal, Tx, and NY.
34 states with 89,433,996 people elect 68 senators who have a 2/3rds
majority while 4 states (California, Texas, New York, and Florida)
with 89,682,303 have only 8 senators. This is where it gets crucial
for us. In voting for impeachment, the people of the least populated
34 states each have 8.5 times as much power as the citizens of the 4
most populous states.
In the Senate, half the people are represented by 16 senators while
the other half is represented by 84 senators. Half the people have
less than one sixth of the representation. 42 states with 136,989160
people elect 84 senators while 8 states (California, Texas, New York,
Florida, Illinois, Pennsylvania, Ohio, and Michigan) have 16 senators
for 135,674,234 people. (272663394 + DC's 572,059 = 273,235,453 was
counted as total population in 2000, 27 million less than the
estimated population now.)
What if the most populous states want an amendment? To propose the
amendment, they'd have to get 34 states to agree in the House and
Senate. How many people do those states have? 254,449,586 people: all
but 18,213,808 in the 16 smallest states. What if the least populous
states want an amendment? They have to get 34 states to agree. How
many people do the 34 least populous states have? 89,433,996, one
third as many. And how many can stand against them? 165,015,590,
That's 9.06 times as many as the 18,213,808 that can block the most
populous states. .
Amendments have to be ratified by three fourths of the states—38
states. The 38 least populous states [up to and including
Massachusetts but not DC] have 113,695,289 people. It would take the
votes of the 13 most populous states, with 181,938,312 people to block
their vote. The 38 most populous states have 261,786,496 people but
their votes can be blocked by the votes of the 13 least populous
states with 12,588,161 votes. For blocking ratification, the people of
the least populous states average 14.45 times the power of those of
the most populous states.
3) How can these inequities be corrected?
First, we'd have to either abolish the Senate or propose a different
basis for getting elected to the Senate. I think bicameral
legislatures are a good idea, so I'd propose the second. Instead of
merely being elected by a state, senators could be elected at large
after proving various qualifications, such as service to the country
or world, various sorts of prizes or awards, levels of education or
various intellectual skills, etc. But this is not the time to worry
about the criteria, for a much larger problem looms before us. The
structure of the Senate can only be changed by constitutional
amendment, and the inequities that shape the Senate are even more
serious in the amendment process. Read Article V:
"The Congress, whenever two thirds of both Houses shall deem it
necessary, shall propose Amendments to this Constitution, or, on the
Application of the Legislatures of two thirds of the several States,
shall call a Convention for proposing Amendments, which, in either
Case, shall be valid to all Intents and Purposes, as part of this
Constitution, when ratified by the Legislatures of three fourths of
the several States, or by Conventions in three fourths thereof, as the
one or the other Mode of Ratification may be proposed by the Congress;
Provided that no Amendment which may be made prior to the Year One
thousand eight hundred and eight shall in any Manner affect the first
and fourth Clauses in the Ninth Section of the first Article; and that
no State, without its Consent, shall be deprived of its equal Suffrage
in the Senate."
So the inequities at the levels of two thirds and three fourths votes
discussed in section 2 above are just the beginning of the problem.
The worst problem is that ANY state can prevent a change in its
status. For instance, if a majority of the 272,169,612 people in 49
states wanted to reduce or change the power of the Senate, the
majority of the 493,782 people in Wyoming could prevent them from
reducing Wyoming's power in the Senate. In that situation, the people
of Wyoming would each have 551.2 times as much power as the people of
the rest of the country.
Is there any way out of this bind? Three are suggested: two forms of
"informal amendment" and one form of "popular amendment."
"Informal amendment" means either by court ruling or by change of
fact. Given the predominance of conservative and reactionary judges,
it is presently inconceivable that courts would rule that the Senate
should have less or different kinds of power. "Change of fact" would
mean something like this: people in the more populous states decide to
migrate to the less populous states so that eventually the inequities
eliminate themselves, all states ending with 5.44 million people each.
This would require, for example, that 28.43 million people leave
California while 4.95 million move into Wyoming. Glad to see you're
relieved the problem can be solved so simply.
Seriously, only one alternative is left, "popular amendment," and it
too has a problem: it has never been used, so no one knows whether it
actually exists. James Wilson, who signed the Constitution, endorsed
the idea. Akhil Reed Amar writes a lot about it in "The Constitution:
A Biography," which I am consequently going out to buy now. Meanwhile
I hope a couple others of you will read it; if Wilson and Amar provide
a way to ameliorate this inequity, probably it is the only one.
4) So what are the relevant implications?
a) When the Democrats say it is pointless to impeach because they
don't have the votes in the Senate, they are 1) overestimating their
knowledge of the future; 2) underestimating the power of impeachment
procedures; 3) being obstructionists because they've made prior deals
with the Republicans and want imperial presidential powers themselves;
and 4) being self-serving because they want everyone to believe the
only solution is to elect a lot of Democrats to the Senate.
b) BUT they are also sloppily hinting at something important and ugly
they think no one can do anything about and that they don't want to
admit because it is so profoundly anti-democratic. That is the
extraordinary advantage the less populous states have in the Senate
that section 2 discusses, and how hard it is to change it, as
discussed briefly in section 3. If they talked openly about how the
representatives of very few people are able to dominate the Senate,
they'd generate a lot of outrage that would jeopardize their own
positions.
c) Look at a map of the "Red" and "Blue" states and notice that if you
read a list of the states in order of their population, you encounter
most of the "Blue" states reading down from the top before you hit
most of the "Red" ones and most of the "Red" ones reading up from the
bottom before you run into most of the "Blue" ones near the top. "Red"
v "Blue" has a high correlation with "Overrepresented in the Senate"
vs. "Underrepresented in the Senate." Consider who gets elected in the
less populous states of the West, Midwest, and South. They're not
small farmers. Most are big landowners or are tied to large-scale
farming interests like Cargill, tobacco interests, banks that manage
farmers' mortgages and loans, defense contractors, etc. Corporate
power takes full advantage of the opportunities disproportionate
senatorial power provides. And they tend to do it through the
religious Right whose power is concentrated in those states. The
discomfort we are feeling in our own country is the result of the
facts that our country is being run 1) by plutocrats representing
multinationals that exploit the world and have no national affiilation
b) largely through representatives of farm and ranch states c) who
have together elected presidents and legislators who don't represent
us and appoint judges who don't.
d) Consider the differences between the US and Europe on such indices
as difference of wealth and income, health care, mortality,
educational levels, the relative power of women, the impact of racism,
religiosity, and authoritarianism. Though we have more money per
capita than any country but Luxembourg, we have policies so backward
that large percentages of our children are malnourished, badly
educated, and uninsured, that healthcare in inner cities is on a par
with that in Lagos, Nigeria, that 27 countries have greater life
expectancy, and so on. All of these are related to the fact that in
the Senate the representatives of the vast majority have less power
than the representatives of less populous states.
e) Consider what hypocrites our representatives are in advertising our
supposedly democratic nature around the world—though the Founders were
absolutely clear that they established a Republic, not a Democracy,
and that they did so because they believed republics to be vastly
superior to democracies, likely to last far longer, and far easier to
expand. Consider further whether, just as we now have universal
suffrage for all citizens over 18 whereas we started with white male
moneyed landowner suffrage, we may be at the point where our
conception of democratic rights has outgrown the structured dominance
of the Senate.
f) Consider finally whether, in considering the future and creating
platforms, we should not only be seeking to restore the constitutional
provisions Bush and Cheney are destroying but also to amend those
clauses of the Constitution that made it vulnerable to such
extraordinary abuse.
Over the next 2 months I'll write about how other constitutional
clauses which, like the slavery clauses, have defeated the apparent
purpose of the Constitution and so have made the current crisis
inevitable.
Richard Duffee
