Senate Democracy: Our Lockean Paradox

68 Am. U. L. Rev. 1981 (2019).

* Guardsmark Professor of Legal Studies and Business Ethics, The Wharton School, University of Pennsylvania. Executive Committee, Andrea Mitchell Center for the Study of Democracy, University of Pennsylvania. Thanks to Mia Wells and Kevin Thomas of Lippincott Library, John Piotrowski of Wharton Research Programming, and Tamara English for research assistance. Thanks also for comments at a presentation co-sponsored by Wharton and the Mitchell Center. For specific suggestions, I thank Mitch Berman, Vince Buccola, Peter Conti-Brown, Nico Cornell, David Dreisen, Bill Ewald, Dan Farber, Brian Feinstein, Jeff Green, Laura Gibson, Rob Hughes, Adam Jacobi, Julian Jonker, Juliet Lapidos, Seth Kreimer, Sarah Light, Phil Nichols, Keigo Obayashi, Carol Orts, Julie Orts, Diana Robertson, Matt Roth, Fred Schauer, Amy Sepinwall, Richard Shell, Alan Strudler, Michael Vandenbergh, Harlan Wilson, and David Zaring. In addition, I thank readers of The Atlantic who responded to an early version of my ideas, and Knowledge@Wharton and the Randy Tobler Show for feedback during radio interviews.

The United States Senate is radically unrepresentative. American citizens in populous states such as California, Texas, Florida, and New York have much less voting weightthan citizens in lightly populated states. Senaterepresentation is also significantly biased in terms of race, ethnicity, and color, as well as other constitutionally protected characteristics such as age and sex. Effective reform of the Senate, however, presents a Lockean paradox because amendmentof its representational structure is prohibited by Article V of the Constitution, and the amendment of Article V is blocked by supermajority hurdles.

This Article proposes a Senate Reform Act to resolve this paradox. This reform would adjust the number of senators allocated to each state by relative population. It recommends a Rule of One Hundred to determine population units by which to allocate senate seats according the official decennial census, with a minimum of one senator per state. The reform would thus respect the principle of federalism and maintain the Senate at roughly the same size. It would yield structural co-benefits such as a more representative Electoral College and an easier path to statehood for underrepresented citizens in the District of Columbia, Puerto Rico, and elsewhere.

The proposed Senate Reform Act finds its constitutional authority in the Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments. After explaining how the reform would work, this Article defends its constitutionality through traditional modes of interpretation: text, structure, history, moral principle, and legal precedent. It concludes with an examination of political balance and feasibility.

[I]t often comes to pass that in governments where part of the legislative consists of representatives chosen by the people, that in tract of time this representation becomes very unequal and disproportionate to the reasons it was at first established . . . . This strangers stand amazed at, and everyone must confess needs a remedy; though most think it hard to find one, because the constitution of the legislative being the original and supreme act of the society, antecedent to all positive laws in it and depending wholly on the people, no inferior power can alter it . . . .
Whatsoever cannot but be acknowledged to be of advantage to the society and people in general . . . will always, when done, justify itself; and whenever the people shall choose their representatives upon just and undeniably equal measures, suitable to the original frame of government, it cannot be doubted to be the will and act of the society, whoever permitted or caused them so to do.

—John Locke¹

[L]aws and institutions must go hand in hand with the progress of the human mind. [A]s that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times.

—Thomas Jefferson²

Heaven lends me ability, to use my voice, my pen, or my vote, to advocate the . . . emancipation of my entire race.

—Frederick Douglass³

Introduction

The United States Senate is radically unrepresentative. At the founding, the ratio of voting weight in the Senate between citizens in the smallest state of Delaware and the largest state of Virginia was around nine to one or twelve to one, depending on whether slaves are counted.⁴ James Madison predicted that this inequality would get worse, and he was right.⁵ As new states were added, and as people multiplied and migrated, the ratios of voting inequality of citizens in the smallest and largest states widened. Today, the ratio of voting weight of citizens in the smallest state of Wyoming compared with those in the largest state of California has ballooned to sixty-seven to one.⁶ The disparities will only worsen because more populous states, such as California, Florida, and Texas, are growing faster than many smaller ones.⁷ By 2040, if present trends continue, two-thirds of American citizens will be represented by only thirty senators.⁸ Compared with almost every other democratically elected national legislature in the world, the malapportionment of the U.S. Senate is an outlier.⁹ It should therefore be reformed.

In addition to comparative voting weight of individual citizens, another measure of representational inequality examines the minimum percentage of the total population needed for a majority of the smallest states to achieve a majority in the Senate—a measure of voting power.¹⁰ Since 1790, this percentage has fallen from around thirty percent to less than twenty percent.¹¹ In other words, it is now possible for senators representing only one-fifth of the population to pass a bill or confirm a Supreme Court justice.¹²

The confirmations of Brett Kavanaugh and Neil Gorsuch to the Supreme Court show why this inequality matters. In October 2018, the Senate confirmed Kavanaugh by a vote of fifty to forty-eight senators, and this bare majority represented only forty-four percent of the general population.¹³ In April 2017, the Senate confirmed Gorsuch by a fifty-four to forty-five vote, with the majority representing only forty-two percent of the people.¹⁴ Similarly, senators representing only a minority of the total population voted to confirm Clarence Thomas and Samuel Alito.¹⁵ Justices Kavanaugh and Gorsuch share the dubious distinction, however, of being both confirmed by senators representing a minority of the population and nominated by a president who himself won election with only a minority of the total vote.¹⁶ They are the first of what we might call minority-minority justices. President Trump and the Republican-controlled Senate have also appointed and confirmed a record number of minority-minority judges to the lower courts.¹⁷

The federal midterm elections in 2018 showed how inequality of representation in the Senate can have more direct political consequences. Democrats rode a blue wave in the popular vote and gained forty seats in the House.¹⁸ However, even though Democratic senate candidates received fifty-seven percent of all senate votes cast nationally, compared to forty-two percent for Republicans, Democrats ended up losing two senate seats.¹⁹ One should not make too much of this difference given that only one-third of senators are elected every two years, and the Democrats were defending twenty-six incumbent seats compared with nine for Republicans.²⁰ Nevertheless, this outcome augurs what Laurence Tribe has called “the rise of minority rule.”²¹ “Our Federalism” may require some degree of unequal representation privileging smaller states,²² but to invoke a famous line from Star Wars, unequal representation in the Senate “is getting out of hand.”²³

To be sure, other governing bodies such as the European Union and the United Nations face similar issues of how to balance representation of historically defined sovereign territories with changing populations and relative influence.²⁴ I do not invoke here an absolute principle of equal voting for citizens in all governance contexts and situations. This Article focuses only on the inequality of representation of citizens in the U.S. Senate, which is increasingly difficult to justify or excuse.²⁵

In 1995, Senator Daniel Patrick Moynihan of New York remarked: “Sometime in the next century the United States is going to have to address the question of apportionment in the Senate. Already we have seven states with two senators and one representative. The Senate is beginning to look like the pre-reform British House of Commons.”²⁶ This Article argues that Moynihan was correct—as Madison was before him.²⁷ It is time to reform the Senate and put it on a more equally representative footing with its citizens.

According to conventional wisdom, the Connecticut Compromise, which established the one state, two senators rule,²⁸ is so firmly embedded in the original constitutional framework that it can never be changed, except by calling a constitutional convention, which has never been done in the 230-plus years since the founding.²⁹ Some have proposed other solutions. Former Representative John Dingell has called for abolition of the Senate.³⁰ AkhilAmar has recommended a national referendum to call the constitutional question.³¹ Burt Neuborne has suggested dividing large states such as California into two or three new states to add senators.³² Others have said the Supreme Court should declare the Senate unconstitutional, or that people should rally for “a revolution, whether bloody or bloodless.”³³

This Article proposes a more moderate, targeted, and practical solution. Congress should enact a statutory reform of the Senate to protect “the right to vote” against abridgment by “the United States” under its powers delegated by the Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments, collectively the voting-rights amendments.³⁴ The amendments extend “the equal protection of the laws” to voting rights for all U.S. citizens, and they guard specifically against the abridgment of voting rights based on “race” or “color,” “sex,” and “age.”³⁵ Each of them charges Congress expressly with “power to enforce [this amendment] by appropriate legislation.”³⁶

The obvious objection to my proposed reform is that it is impossible because the Constitution explicitly adopts the one state, two senators rule, and a mere statute cannot change it.³⁷ Furthermore, the Constitution appears to forbid the one state, two senators rule from ever being amended. Article V provides not only one of the most restrictive amendment procedures in the world, requiring a two-thirds vote of a bicameral Congress and ratification by three-quarters of the states, but also declares specifically that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”³⁸ Only one third of senators, currently representing less than eight percent of the U.S. population—or thirteen state legislatures representing less than five percent—are sufficient to block any reform by amendment.³⁹ Arguably at least, no amendment of a state’s “equal suffrage” can be adopted unless each and every state gives its “consent.”⁴⁰ Leading scholars have therefore declared that changing the status quo is “unthinkable”⁴¹ or at least “virtually impossible.”⁴²

Again then, according to the conventional wisdom, our Constitution traps us in what I will call a Lockean paradox. We may want to follow the principle that “the people shall choose their representatives upon just and undeniably equal measures,” but our own Constitution prevents us from doing so.⁴³ “We the People” seem to be locked (pun intended) into an undemocratic structure forever by our revered founding document.⁴⁴

The primary contribution of this Article is to show “it ain’t necessarily so.”⁴⁵ We can resolve our Lockean paradox of Senate representation through a congressional statute closely tailored to the exercise of powers delegated by the voting-rights amendments to protect U.S. citizens’ equal rights to vote. Making the Senate more democratic also follows in the tradition of the Seventeenth Amendment, which has already once changed the meaning of “equal suffrage” of the states to mean a democratic popular vote rather than selection of senators by state legislatures.⁴⁶ The proposed reform would make the Senate more democratic, once again, by proportionally adjusting the allocation of senators to the states while at the same time respecting a constraint of federalism.

The Article proceeds as follows. Part I briefly describes our Lockean paradox. Part II presents a legislative solution. Congress, acting within its delegated powers under the voting-rights amendments, should adopt a statute to reform the distribution of senators. The statute would replace the one state, two senators rule with one that allocates senators in a manner that both respects the original commitment to federalism, with at least one senator to each state, and upholds the rights of U.S. citizens to participate in their political democracy on a relatively equal basis, with a greater number of senators allocated to more populous states. I recommend what I will call the Rule of One Hundred as a formula for determining this allocation in a process that piggybacks on the use of the official census conducted every ten years to allocate members of the House. All other features and functions of the Senate remain the same.

Part III offers a constitutional defense. Contrary to the conventional view that the number of senators per state is set in stone by the original constitutional text, I argue that the later voting-rights amendments delegate power to Congress to contravene the one state, two senators rule. Textual analysis supports this argument. Congressional action would create an intratextual constitutional conflict, which I argue should be resolved in favor of the exercise of congressional power. Other standard modes of interpretation, including considerations of structure, history, moral principle, and legal doctrine, support the reform’s constitutionality.

Two interrelated constitutional arguments justify the reform. First, it fulfills a congressionalmandate to protect the rights of U.S. citizens to a rough mathematical equality of voting weight in their national government—within a federalism constraint. This argument extends the same principle of equal voting rights to the U.S. Senate that the Supreme Court followed in cases such as Reynolds v. Sims⁴⁷ to strike down similarly unequal state legislatures.⁴⁸ Protection of the equal voting rights of U.S. citizens in general is one sufficient justification for congressional reform under the Fourteenth Amendment.⁴⁹

Second, unequal representation in the Senate violates the equal voting rights of specifically protected categories of citizens. Most egregiously, empirical research shows that “whites . . . constitute the only [racial or ethnic] group that Senate apportionment advantages.”⁵⁰ Even though the median distribution of white citizens in the United States is approximately 61 percent, for example, the most populous state of California is only 38 percent white, and second-most-populous Texas is 43 percent white.⁵¹ Many small states are disproportionately white, including the two smallest states of Vermont (96 percent) and Wyoming (84 percent).⁵² It therefore does not go too far to describe the current apportionment of the Senate as a vehicle for entrenching white supremacy.⁵³ Other statistically smaller inequalities appear with respect to sex, age, and other protected categories.⁵⁴ Protecting the equal voting rights of these citizens supplies another constitutional justification for the reform.

The statutory reform is narrowly tailored to vindicate the promise of equal voting rights in the national polity. It follows the political theories of both Locke and Madison—as well as later constitutional theorists such as Frederick Douglass, who helped to make the expansion of equal voting rights a central narrative in American history.⁵⁵

The reform would also bring several structural co-benefits.⁵⁶ First, it would address a widespread concern with the unrepresentativeness of the Electoral College without the need to move to a national popular vote as a solution.⁵⁷ Second, it would make tractable the problem of underrepresentation of citizens in the District of Columbia, Puerto Rico, and elsewhere by making statehood politically easier to accomplish.⁵⁸ Third, the reform would reduce long-term potential political pressures for secession, especially in large states such as California or Texas, which might otherwise build from unhappiness about unfair representation.⁵⁹ The reform would promote stability as well as fairness.

Part IV presents an argument that the reform is politically balanced and may well prove feasible, perhaps even attracting bipartisan support. I conclude that adoption of the reform would enhance the greatness of American-style democracy.

I. Our Lockean Paradox of Senate Representation

At the dawn of limited constitutional government, John Locke recognized that a paradox can arise with respect to representative legal structures. The creation of legislatures to represent “the people” in government requires the designation of districts from which the legislators would hail, but the underlying features of these districts would then change over time, thus throwing the original scheme out of whack.⁶⁰ In Locke’s words,

Things of this world are in so constant a flux that nothing remains long in the same state. Thus people, riches, trade, power change their stations, flourishing mighty cities come to ruin and prove in time neglected, desolate corners, while other unfrequented places grow into populous countries, filled with wealth and inhabitants. But things not always changing equally, . . . it often comes to pass that in governments where part of the legislative consists of representatives chosen by the people, that in tract of time this representation becomes very unequal and disproportionate to the reasons it was at first established upon.⁶¹

Locke gave the example of a town that had fallen into “ruin” with a remaining population of only a shepherd and some sheep, but it maintained representation in the legislature equivalent to “a whole county numerous in people and powerful in riches.”⁶² This “rotten boroughs” problem eventually produced a situation in which only 1/170 of the total population accounted for a majority of representatives in the House of Commons.⁶³

Locke’s solution to this paradox of representation was, in a system with no written constitution, to allow the monarch or executive power to correct the representational imbalance.⁶⁴ Even though “the legislative is the supreme power,”⁶⁵ Locke argued that the executive should step in to “rectif[y] the disorders” and correct the representational discrepancy “not by old custom but true reason,” allocating “the number of all members in all places that have a right to be distinctly represented.”⁶⁶ For Locke, this extra-legislative action would “justify itself” by its end and not its means.⁶⁷ For “whenever the people shall choose their representatives upon just and undeniably equal measures, suitable to the original frame of government, it cannot be doubted to be the will and act of the society, whoever permitted or caused them so to do.”⁶⁸

Eventually, the British Parliament itself addressed the problem through a series of Reform Acts over the course of the nineteenth century.⁶⁹ In Britain, “[t]he constitution was not a set of documents but a reading of history.”⁷⁰ Although pressures of custom and tradition impeded change, no constitutional text blocked reform.⁷¹

Locke, as well as Hobbes and Montesquieu, heavily influenced the American constitutional founders, including Madison.⁷² Although Locke was one of the most original and influential theorists of limited constitutional government, he was not a democratic theorist in the contemporary sense of believing in a broadly defined and wide-ranging franchise.⁷³ Nevertheless, the representation paradox that Locke identified appears again in the form of the contemporary U.S. Senate.

The Senate today presents an analogous Lockean paradox: a legislature growing increasingly disproportionate inits representation and yet bound against change by tradition and custom—compounded by the fact of a written constitution with extraordinarily rigorous constraints on its amendment.⁷⁴ The U.S. Constitution is the first and oldest of its kind.⁷⁵ No previous national government relied on a written constitution, and the U.S. example has since been followed by many other countries.⁷⁶ Article V is the key provision that allows the Constitution to evolve slowly with changing times, but it is much stricter than the amending clauses of any other national written constitution.⁷⁷

Finding a solution to the paradox of Senate representation is daunting. First, Article V explicitly forbids any interference with “equal suffrage” of the states without the “consent” of each state.⁷⁸ One proposed reform has argued nonetheless for a two-step approach around the problem: first eliminate the Equal Suffrage Clause by amendment, and then amend Article V to eliminate or reform the Senate.⁷⁹ This approach cannot dodge the Lockean paradox, however, because it is extremely unlikely that two thirds of both the House and the Senate and three quarters of the states would agree to amendments that would reduce the relative voting power of senators from small states.⁸⁰ For similar reasons, a constitutional convention, subject to the same super-majority constraints, is a non-starter.⁸¹ Hence our Lockean paradox: our government purports to be “of the people, by the people, [and] for the people,”⁸² yet our Senate has grown in the flux of time to be increasingly unequally representative of “We the People.”⁸³

The solution to our Lockean paradox is for Congress to cut the Gordian knot.⁸⁴ As Lisa Disch has argued, elaborating on an idea first articulated by Hannah Pitkin, representatives in democratic governments act within a “constituency paradox” in which they both reflect the identities, interests, and views of those who elect them, and at the same time compose their constituents’ identities, interests, and views.⁸⁵ By enacting the proposed reform, Congress would both embrace the Lockean paradox and resolve it. Oriented toward an understanding of the polity and the need to rectify its representational structure, Congress would act in its role as representatives of its current constituents, namely, “the People.” Congressional legislation is the best and most democratic course of action short of out-and-out revolution to resolve our Lockean paradox.⁸⁶

II. Proposal for a Senate Reform Act

The proposed reform draws on a number of principles expressed in the Constitution, including federalism and equal voting rights, to recommend a congressional statute to put the Senate on a more democratic foundation. Call it the Senate Reform Act.⁸⁷ Here is how it would work.

The reform mandates a minimum of one senator for each state. It departs from the original one state, two senators rule, however, and allocates more senators to more populous states, following the constitutional principle of equal voting rights. In technical terms, this structure is known as degressive proportionality, which balances the democratic principle of one person, one vote with a need in federalism to allocate a representational minimum to subsidiary or secondary political entities such as states.⁸⁸ In other words, the proposed reform recognizes the legitimacy of representation of the states as independent units within the larger federal system, but rebalances the relative weight given to citizens within these units.

Since the admission of Alaska and Hawaii in 1959, the United States has been comprised of fifty states. Because the Senate has consisted of one hundred members for so long, the proposal begins with this number as a guideline. Plus, it is easy to do the math and therefore easy for citizens, as well as politicians, to understand.

Since 1790, an official census of the population has been conducted every ten years in order to determine allocations of House members.⁸⁹ With a nod to federalism, the Constitution allocates at least one representative to each state even if its population falls below the total population of the country divided by 435—a number that has been set by statute on a semi-permanent basis since 1911.⁹⁰ The decennial census also forms the basis for the proposal here.

First, calculate the number and allocation of senators as follows. Start with the total U.S. population. For 2017, this number is 325,719,178.⁹¹ I use this number as an illustration, though of course it will be somewhat higher in the next official census in 2020.

Second, divide this number by one hundred. This gives the unit to be used to allocate seats to each state. Call this the Rule of One Hundred. In the illustration, each senate unit for a seat equals 3,257,192 people.

Third, compareseat allocation units with the populations of each state as determined by the decennial census. Following the principle of federalism used also by the House, each state receives at least one senator. For more populous states, the number of senators is equal to the number of units determined by the Rule of One Hundred.

A state with less than or approximately one senate unit gets one senator. States with twice as many get two senators, states with three times as many get three, and so on.

See Table 1 on the next page for an allocation of senators based on the 2017 census estimate. One may assume it would be generally the same if the proposal were adopted following the 2020 census.

This reform, as shown, corrects the massive underrepresentation of some states. California, the most populous state, is allocated twelve senators—showing the dramatic current underrepresentation of citizens in this state. Texas is allocated nine senators. Florida and New York get six. Illinois, Ohio, and Pennsylvania receive four. States that each gaina senator are Georgia, Michigan, New Jersey, North Carolina, and Virginia.

Twelve states hold steady at the original number of two senators. Twenty-six states lose a senator—though some of these are still overrepresented from a purely mathematical perspective.

Eleven of the smallest states count less than one-half of a Rule of One Hundred unit (i.e., less than .05/100 of the population). All states continue to be entitled to one senator following general principles of federalism and “equal suffrage in the Senate.”⁹²

The total generated in the illustration is 110 senators. The reform would follow similar procedures as the House and adjust allocations going forward according to the decennial census: first the 2020 census, with reallocations in 2030, 2040, et cetera.

Table 1: Proposed Allocation of Senators under a Senate Reform Act

State	2017 Population*	Share of One Percent of Total U.S. Population	Proposed Senators
United States	325,719,178
Alabama	4,874,747	1.49**	2
Alaska	739,795	.23	1
Arizona	7,016,270	2.15	2
Arkansas	3,004,279	.92	1
California	39,536,653	12.13	12
Colorado	5,607,154	1.72	2
Connecticut	3,588,184	1.10	1
Delaware	961,939	.30	1
Florida	20,984,400	6.44	6
Georgia	10,429,379	3.20	3
Hawaii	1,427,538	.44	1
Idaho	1,716,943	.53	1
Illinois	12,802,023	3.93	4
Indiana	6,666,818	2.05	2
Iowa	3,145,711	.97	1
Kansas	2,913,123	.89	1
Kentucky	4,454,189	1.37	1
Louisiana	4,684,333	1.44	1
Maine	1,335,907	.41	1
Maryland	6,052,177	1.86	2
Massachusetts	6,859,819	2.11	2
Michigan	9,962,311	3.06	3
Minnesota	5,576,606	1.71	2
Mississippi	2,984,100	.92	1
Missouri	6,113,532	1.88	2
Montana	1,050,493	.32	1
Nebraska	1,920,076	.59	1
Nevada	2,998,039	.92	1
New Hampshire	1,342,795	.41	1
New Jersey	9,005,644	2.76	3
New Mexico	2,088,070	.64	1
New York	19,849,399	6.09	6
North Carolina	10,273,419	3.15	3
North Dakota	755,393	.23	1
Ohio	11,658,609	3.58	4
Oklahoma	3,930,864	1.21	1
Oregon	4,142,776	1.27	1
Pennsylvania	12,805,537	3.93	4
Rhode Island	1,059,639	.33	1
South Carolina	5,024,369	1.54**	2
South Dakota	869,666	.27	1
Tennessee	6,715,984	2.06	2
Texas	28,304,596	8.69	9
Utah	3,101,833	.95	1
Vermont	623,657	.19	1
Virginia	8,470,020	2.60	3
Washington	7,405,743	2.27	2
West Virginia	1,815,857	.56	1
Wisconsin	5,795,483	1.78	2
Wyoming	579,315	.18	1
Total Senators			110
District of Columbia	693,972	.21	(1)
Puerto Rico	3,337,177	1.02	(1)
Pacific Islands †	375,165	.11	(1)
American Indians and Alaskan Natives ††	2,726,278	.73	(1)

* U.S. Census, 2017 estimate, used for illustration purposes only.

** In borderline cases, I err in favor of greater representation and round up. I thus generally follow a mathematical method of “equal proportions” looking at .50 as the dividing line, but actual adoption of this approach would have to grapple politically with different mathematical line-drawing options. See, e.g., Walter F. Willcox, Last Words on the Apportionment Problem, 17 Law & Contemp. Probs.290 (1952) (discussing various other options including “rejected fractions” and “included fractions”).

† U.S. Census data for 2010 combined for American Samoa (55,519), Guam (159,358), North Mariana Islands (53,883), and the U.S. Virgin Islands (106,405).

†† U.S. Census, 2017 estimate, total in the territory of U.S. states.

A grandparent provision could allow senators to continue serving their full terms. If the proposed statute went into effect, for example, and a small state had two senators with four and six years remaining in their respective terms, they would continue in office until one term expired. In a state allocated only one seat, the senator whose term first ends would become ineligible for another term, and the seat would be retired. In Vermont, for example, Senator Bernie Sanders was re-elected in 2018, and Senator Patrick Leahy’s term ends in 2022. If a Senate Reform Act were adopted in 2020, Senator Leahy’s seat would be retired in 2022.

Statutory provisions would adhere to the Three Classes Clause that divides senators in order to balance the six-year terms.⁹³ See Table 2 on the next page.⁹⁴ How and when to add senators would be subject to negotiation when adopting the statute—with an objective of maintaining an even balance. As in the original scheme, additions of new senators to each of the three classes would be determined by lot or coin toss.⁹⁵ See Table 3 on page 2006. States allocated three or more senators would have elections every two years. In Texas, for example, three senators would be elected every two years.

Adding senators would be calibrated to the three classes. If a state gets three senators, then a new senator would be added when an open class slot for the state becomes available. For example, Michigan has Class 1 and 2 senators, and so it would add a Class 3 senator in 2022. This process would also allow for a relatively gradual transition from the current status quo to the new representative structure, thus providing institutional stability while making the change.

Table 2: The Three Classes of Senators by State

State	Class 1	Class 2	Class 3
Alabama	X	X
Alaska		X	X
Arizona	X		X
Arkansas		X	X
California	X		X
Colorado		X	X
Connecticut	X		X
Delaware	X	X
Florida	X		X
Georgia		X	X
Hawaii	X		X
Idaho		X	X
Illinois		X	X
Indiana	X		X
Iowa		X	X
Kansas		X	X
Kentucky		X	X
Louisiana		X	X
Maine	X	X
Maryland	X		X
Massachusetts	X	X
Michigan	X	X
Minnesota	X	X
Mississippi	X	X
Missouri	X		X
Montana	X	X
Nebraska	X	X
Nevada	X		X
New Hampshire		X	X
New Jersey	X	X
New Mexico	X	X
New York	X		X
North Carolina		X	X
North Dakota	X		X
Ohio	X		X
Oklahoma		X	X
Oregon		X	X
Pennsylvania	X		X
Rhode Island	X	X
South Carolina		X	X
South Dakota		X	X
Tennessee	X	X
Texas	X	X
Utah	X		X
Vermont	X		X
Virginia	X	X
Washington	X		X
West Virginia	X	X
Wisconsin	X		X
Wyoming	X	X

Table 3: Allocations of Senators over Time*

State	2020 [2]	2022 [3]	2024 [1]	2026
Alabama	2	2	2	2
Alaska	2	2	2	1
Arizona	2	2	2	2
Arkansas	2	1	1	1
California	2	4**	8**	12**
Colorado	2	2	2	2
Connecticut	2	1	1	1
Delaware	2	2	1	1
Florida	2	4**	5**	6**
Georgia	2	2	3	3
Hawaii	2	1	1	1
Idaho	2	1	1	1
Illinois	2	2	3	4**
Indiana	2	2	2	2
Iowa	2	1	1	1
Kansas	2	1	1	1
Kentucky	2	1	1	1
Louisiana	2	1	1	1
Maine	2	2	1	1
Maryland	2	2	2	2
Massachusetts	2	2	2	2
Michigan	2	3	3	3
Minnesota	2	2	2	2
Mississippi	2	2	1	1
Missouri	2	2	2	2
Montana	2	2	1	1
Nebraska	2	2	1	1
Nevada	2	1	1	1
New Hampshire	2	1	1	1
New Jersey	2	3	3	3
New Mexico	2	2	1	1
New York	2	4**	5**	6**
North Carolina	2	2	2	3
North Dakota	2	1	1	1
Ohio	2	3**	4**	4
Oklahoma	2	1	1	1
Oregon	2	1	1	1
Pennsylvania	2	3**	4**	4
Rhode Island	2	2	1	1
South Carolina	2	2	2	2
South Dakota	2	1	1	1
Tennessee	2	2	2	2
Texas	2	4**	7**	9**
Utah	2	1	1	1
Vermont	2	1	1	1
Virginia	2	3	3	3
Washington	2	2	2	2
West Virginia	2	2	1	1
Wisconsin	2	2	2	2
Wyoming	2	2	1	1

* Brackets after years indicates senate class up for election. Additions are correlated with openings in classes for states, and losses with expiration of terms.

** Indicates choice of classes to be made by lot drawn with other states.

Allocation of multiple senators to more populous states may allow for experimentation to enhance representative democracy and to moderate political polarization. For example, states could follow a process similar to the one used in California’s open primary to select the top vote-getters to serve in the available seats—e.g., four senators in each biennial election in California under the proposed reform.⁹⁶ At least in theory, top-vote open primary elections would reduce political polarization, given that parties could win an election by coming in second, third in Texas, or even fourth in California, rather than the current winner-take-all tournaments.⁹⁷

Instant runoff elections provide another option. In instant runoffs, voters rank their top candidates of any party, bypassing primaries, and the top vote-getters win.⁹⁸ In Texas, for example, one might imagine a future top-choice instant runoff in which citizens would elect a Republican, a Democrat, and maybe a Libertarian as three of their nine senators (e.g., Ted Cruz and Beto O’Rourke plus one, if the scheme had been in effect in 2018).

In yet another option, states might divide themselves into different senate districts, as they do for the House.⁹⁹ Congress or state governments, however, should guard against the partisan gerrymandering that infects current legislative redistricting.¹⁰⁰ Congress may charge an independent bipartisan commission to apportion senate districts, “an avenue of reform” recognized recently by the Supreme Court.¹⁰¹ California’s approach appears to be a leader in the field.¹⁰²

New states would get senators according to the same calculus.¹⁰³ The District of Columbia and Puerto Rico would qualify, if admitted, for one senator each. The Pacific Islands taken together might compose the newest, smallest state. Indigenous peoples mightalso qualify to petition for statehood, if they wished.¹⁰⁴

III. Constitutionality

If a Senate Reform Act is adopted, then one or more states losing a senator would likely challenge it as unconstitutional, given that it flies in the face of the plain meaning of the one state, two senators rule in the original constitutional text.¹⁰⁵ The Supreme Court may exert its original jurisdiction.¹⁰⁶ At the outset, however, it is unclear whether the Court should exercise its discretion to hear the case.

A. Deference to Congress

The reform addresses a “political question” regarding democratic representation of “We the People,” and the Court should arguably defer to the political branches of Congress and the President on the issue, and decline to recognize standing. As the Court recently stated, when a “question is entrusted to one of the political branches,” then “the claim is said to present a ‘political question’ and to be nonjusticiable—outside the courts’ competence and therefore beyond the courts’ jurisdiction.”¹⁰⁷ The reform is not an ordinary statute, but rather one that restructures the Senate by exercising the constitutional power delegated to Congress under the voting-rights amendments. At a minimum, the Court should give Congress the benefit of the doubt.

The Court might even revive “the rule of clear mistake” from an era of less active judicial review.¹⁰⁸ Following this rule “would presume that legislators had found the legislation that they enacted to be constitutionally permissible and would hold such legislation unconstitutional only if the legislature had made a ‘clear mistake’ in constitutional reasoning.”¹⁰⁹

Deference to Congress in this situation may also find analogous support in the “Thayerism” invoked to defer to the President in areas of decision-making when “justice and right” may “operate in a different register from legality.” Daphna Renan, Presidential Norms and Article II, 131 Harv. L. Rev. 2187, 2271–72 (2018) (quoting James Thayer who said “a court should not strike down a law unless its unconstitutionality is ‘so clear that it is not open to rational question’”).

From a political theory and public-facing standpoint as well, it would be ironic for nine unelected justices to strike down a congressional statute designed to enhance democratic representation, including fair representation of people of color, based on an interpretation of the original text of a 230-year-old document written by white men, of white men, and, in large part, for white men (many of them slaveholders).¹¹⁰ Doing so would likely put in question the Court’s political legitimacy.¹¹¹ It would also risk a strong and justified response from the politically elected branches.¹¹² One may also view the enactment of a Senate Reform Act as an exercise in “popular constitutionalism” and, if so, cast suspicion on the use of “judicial supremacy” to overturn it.¹¹³

B. The One State, Two Senators Rule

On the assumption that the Court would exert judicial review, it may initially seem that the objecting states might easily and quickly prevail.¹¹⁴ The text of the Constitution says the “Senate of the United States shall be composed of two Senators from each State.”¹¹⁵ More text supports the argument that the rule is unassailable. The Seventeenth Amendment, which established that senators must be “elected by the people” rather than selected by state legislatures, repeats the basic rule.¹¹⁶ Article V adds an apparent showstopper that seems to protect the rule from any change whatsoever—even by constitutional amendment. Immediately following a clause saying no amendment may interfere with the slave trade until 1808, Article V states that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate”—with no expiration date.¹¹⁷

Given the plain meaning of these provisions, it may seem that abrogating the one state, two senators rule is indeed “unthinkable,”¹¹⁸ even if several legal scholars believe it to be “the stupidest part of the Constitution” or “one of the stupidest.”¹¹⁹ According to the traditional view, Congress cannot change the number of senators per state. To try to do so, one might argue, would be the equivalent of Congress trying to lower the minimum age required to serve as president. The text says that the president must “have attained to the Age of thirty five years.”¹²⁰ If Alexandria Ocasio-Cortez, who became the youngest U.S. Representative in history at age twenty-nine, decided to run for president in 2020, one could not say that the meaning of age has changed, or complain that age qualifications had been written by dead white men.¹²¹ The text establishing the one state, two senators rule—the argument would go—is as clear as the text regarding age qualifications, allowing no room for debate.

However, it is not only possible to think that a Senate Reform Act can pass constitutional muster, but the much better argument—deriving even from “the sanctity of the text”—favors this finding.¹²² We should also guard against a propensity to treat text “as too sacred to be touched.”¹²³

In advancing an argumentin favor of constitutionality, this Article follows traditional modes of interpretation: “text, structure, history, ethos, and doctrine.”¹²⁴ These “modes or facets of constitutional interpretation” are in practice intertwined.¹²⁵ If interpretive modes conflict, then one must weigh their values against each other.¹²⁶ In addition, intramodal conflicts, such as competing texts, as well as intermodal conflicts, such as between text and history, or between history and moral principles, can arise.¹²⁷ In the case of a Senate Reform Act, all of the interpretive modes point toward finding the statute constitutional, though some modes such as history and moral principle may argue more strongly in its favor than others such astext.

C. Textual Analysis

Altering the one state, two senators rule via a Senate Reform Act under the authority of the voting-rights amendments would create an intertemporal, intramodal textual conflict requiring resolution. Article V’s prohibition against amending the rule presents an obstacle as well.

1. The voting-rights amendments

The most relevant text supporting congressional reform of the Senate is the Fourteenth Amendment. Passed immediately following the Civil War, it promises “the equal protection of the laws.”¹²⁸ Supreme Court cases have applied the principle of equal protection in the context of federal standards for voting rights in the states.¹²⁹ The Fourteenth Amendment expressly delegates enforcement power to Congress.¹³⁰ The plain implication is that Congress has been given power to assure “equal protection of the laws” for citizens, including their right to vote.

One might object that the delegated congressional power under the Fourteenth Amendment is limited to protecting against infringements of citizens’ rights only by the states rather than the United States.¹³¹ However, it makes no sense to say, for example, that Congress has power to prohibit racial discrimination by the states but can do nothing about similar racial discrimination by the federal government. In parallel situations, the Supreme Court has held the Fourteenth Amendment to apply to the United States government too.¹³²

Additional text in the Constitution confers to Congress the power—indeed the duty—to protect the right to vote. This text is found in the Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments.

The Fifteenth Amendment provides: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”¹³³

The Nineteenth Amendment: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.”¹³⁴

The Twenty-Fourth Amendment: “The right of citizens of the United States to vote [in federal elections] shall not be denied or abridged by the United States or any State by reason of failure to pay any poll tax or other tax.”¹³⁵

The Twenty-Sixth Amendment: “The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.”¹³⁶

The kicker is that all of these voting-rights amendments—adopted over the century stretching from 1870 to 1971—include exactly the same language in their enforcement clause: “The Congress shall have power to enforce this article by appropriate legislation.”¹³⁷

From a purely textual point of view, then, the voting-rights amendments delegate power to Congress affirmatively to protect voting rights based, first, on the principle of equality of all citizens under the Fourteenth Amendment and, second, on the prohibition of any curtailment of the right to vote “on account of” race, skin color, ethnicity, sex, and age.¹³⁸ The voting-rights amendments taken together provide a strong textual basis for Congress to take action to correct any “denial” or “abridgment” of these rights in elections for federal office, including the Senate.¹³⁹

To “abridge,” according to a standard dictionary definition, is “to reduce in scope” or “to shorten in duration or extent.”¹⁴⁰ To abridge a right, then, is to reduce or shorten its scope and extent. The Supreme Court agrees that “the core meaning” of “abridge” is to “shorten,” which “entails a comparison.”¹⁴¹

Empirical evidence for abridgment “by the United States” of the equal voting rights of citizens in the Senate is established by census data reported in Table 1.¹⁴² No intentionality or animus requirement appears in the voting-rights amendments, and none should be conjured.¹⁴³ The United States itself—in the inherited and evolving governance structure of the Senate—abridges its citizens’ equal rights to vote.

In addition to the unequal treatment of all citizens in larger states, the census data (and one survey) show also that the same inequality of distribution penalizes citizens in large states with respect to racial and ethnic diversity, as well as other specifically protected categories.¹⁴⁴ See Table 4 on the next page.¹⁴⁵ Because several voting-rights amendments aim directly at the protection against abridgment of rights on the basis of race, color, sex, and age, the reform is justified in order to remediate these differences.

Table 4: Percentage Racial/Ethnic Profiles of the States*

State	White	Black	Hispanic	Asian	Native American	Pacific Islander
United States	61%	12%	18%	6%	1%	>1%
Alabama	66	27	4	–	–	–
Alaska †	60	3	7	5	17	2
Arizona	54	4	34	3	2	–
Arkansas	72	15	7	–	1	–
California ††	38	5	39	15	2	1
Colorado	70	4	19	4	–	–
Connecticut	67	10	16	5	–	>1
Delaware	62	21	11	3	–	>1
Florida ††	55	15	26	3	>1	–
Georgia	52	32	10	4	–	–
Hawaii	19	2	10	39	–	17
Idaho	82	1	13	2	–	–
Illinois	61	14	17	6	–	–
Indiana	81	9	6	2	–	–
Iowa	86	3	6	2	–	–
Kansas	74	6	14	2	–	–
Kentucky	84	8	5	–	–	–
Louisiana	59	32	5	–	–	–
Maine	92	1	2	–	–	–
Maryland	53	29	11	5	–	–
Massachusetts	72	7	12	7	–	–
Michigan	75	14	5	3	–	–
Minnesota	80	6	6	4	–	–
Mississippi	58	37	3	–	–	–
Missouri	79	11	4	2	–	–
Montana	89	1	3	1	–	–
Nebraska	78	4	13	3	–	>1
Nevada	52	9	27	8	–	–
New Hampshire	92	1	3	2	–	–
New Jersey	58	13	18	11	–	–
New Mexico	37	2	46	–	–	–
New York ††	57	14	18	9	>1	–
North Carolina	61	21	10	3	–	–
North Dakota †	85	3	4	–	4	–
Ohio	78	12	4	2	–	–
Oklahoma	64	7	12	–	8	–
Oregon	75	2	14	4	–	–
Pennsylvania	76	11	7	4	–	–
Rhode Island	72	6	16	4	–	–
South Carolina	65	26	5	2	–	–
South Dakota	82	2	5	–	–	>1
Tennessee	73	17	6	2	–	–
Texas ††	43	12	38	5	>1	–
Utah	79	1	14	2	–	–
Vermont †	94	1	1	–	–	–
Virginia	61	18	11	7	–	–
Washington	66	3	14	10	–	–
West Virginia	93	3	1	–	–	>1
Wisconsin	80	6	8	3	–	>1
Wyoming †	86	1	9	–	–	–

District of Columbia	38	46	10	5	–	–

* Excluded: percentage of two races/ethnicities reported ranging from one percent to fourteen percent (in Hawaii) with a U.S. average of two percent.

† Four smallest states in population.

†† Four largest states in population.

The four most populous states, for example, have significantly higher percentages of nonwhite citizens compared with the national average. White citizens are a minority in California, Texas, Florida, and New York. Nonwhite citizens in these states are doubly disadvantaged in their right to vote: in general, along with every other citizen in their states, and racially and ethnically, compared with white citizens in other states.¹⁴⁶

The four least populated states reveal the flip-side: states with higher than average percentages of white citizens have greater voting influence. Alaska is close to the national average, but the three other smallest states are not: North Dakota, Vermont, and Wyoming are eighty-five to ninety-four percent white.¹⁴⁷

Taking a larger slice of the data confirms a bias favoring white citizens. The twelve states with the highest percentages of whites qualify under the reform for only one senator (except Indiana which gets two). The twelve states with the highest nonwhite percentages include not only the four most populous states of California, Texas, Florida, and New York, but also two states, Georgia and New Jersey, that would qualify for an increase to three senators. Two more would remain at two senators, and only four would drop to one.¹⁴⁸

A comprehensive empirical analysis confirms that the representational structure of the Senate disfavors—and thus “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 “constitute the only group that Senate apportionment advantages.”¹⁴⁹ See Table 5 on the next page.¹⁵⁰ “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.”¹⁵¹

Table 5: Percentage of Nation’s Population in Selected Racial and Ethnic Groups Compared with Percentages in the Median State

	National Population	In Median State
Black	12.5	7.1
Hispanic	10.0	2.8
Asian	3.4	1.3
American Indian, Eskimo, Aleut	0.8	0.4
White (non-Hispanic)	74.0	82.2
All minorities	26.8	18.1

This evidence reinforces the argument that Congress has power to address senate apportionment not only under the Fourteenth Amendment (“equal protection” for all citizens), but also the Fifteenth Amendment (abridgment of the right to vote on the basis of “race” or “color”). The proposed reform addresses both problems at once.

In addition, empirical data show differentials in population distribution that disadvantage other constitutionally protected categories of citizens, though the percentage differences are not as great as for race, color, and ethnicity. SeeTable 6 on the next page.¹⁵²

Table 6: Percentage Gender, Age, and LGBT Identification in the States

State	Female	Age 18–24	Age 65-plus	LGBT
Alabama	51	10	16	3
Alaska	48	10	10	3
Arizona	50	10	16	4
Arkansas	51	10	17	3
California	50	10	13	5
Colorado	50	9	13	4
Connecticut	51	9	16	3
Delaware	51	10	17	5
Florida	51	9	20	4
Georgia	51	10	12	4
Hawaii	50	9	17	3
Idaho	50	10	15	3
Illinois	51	9	15	4
Indiana	51	10	15	4
Iowa	50	10	17	3
Kansas	50	10	15	3
Kentucky	51	9	16	3
Louisiana	51	10	14	4
Maine	51	8	19	5
Maryland	52	9	14	4
Massachusetts	52	10	16	5
Michigan	51	10	16	4
Minnesota	50	9	15	5
Mississippi	51	10	15	3
Missouri	51	10	16	4
Montana	50	9	17	3
Nebraska	50	10	15	4
Nevada	49	9	14	5
New Hampshire	51	9	16	5
New Jersey	51	9	16	3
New Mexico	50	10	16	5
New York	52	10	16	5
North Carolina	51	10	15	4
North Dakota	49	12	17	3
Ohio	51	9	16	4
Oklahoma	50	10	16	3
Oregon	50	9	16	5
Pennsylvania	51	10	18	4
Rhode Island	52	11	17	4
South Carolina	51	10	16	3
South Dakota	50	10	16	2
Tennessee	51	9	16	3
Texas	50	10	12	4
Utah	50	11	11	4
Vermont	51	10	17	5
Virginia	51	10	14	3
Washington	50	9	14	5
West Virginia	51	9	19	3
Wisconsin	50	9	16	3
Wyoming	49	10	15	3

District of Columbia	53	14	14	9

The Nineteenth Amendment forbids abridgment of the right to vote “on account of sex,” and census data shows some states to be unequally represented in this respect. For example, the small states of Alaska, Nevada, and North Dakota represent men disproportionately.¹⁵³

Citizens who identify as lesbian, gay, bisexual, or transgender (LGBT) are also likely covered under the Nineteenth Amendment.¹⁵⁴ Survey data show a disparity of distribution. Large states including California and New York report a significantly higher percentage of LGBT citizens than small states, for example, though the overall distribution varies only within a percentage point or two throughout the country.¹⁵⁵

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 only approximately by census data available for the range of eighteen to twenty-four) appear to be relatively evenly distributed, though they may be slightly overrepresented in the small states of North Dakota and Rhode Island.¹⁵⁶

Resolving the textual argument for constitutionality does not require a final weighing of available empirical evidence. If Congress considers the proposed reform, it would assemble a detailed factual record. Census and survey data indicate a strong probability, however, that the evidence would support congressional power to act.

Taken together, the voting-rights amendments present a strong textual argument for a general right to vote that extends to Congress the power to enact “appropriate legislation” to protect it.¹⁵⁷ Repetition of the same language in the enforcement provisions of the voting-rights amendments “comprise an impressive colonnade of congressional power.”¹⁵⁸ As Akhil Amar writes:

Given the emphatic repetition of the phrase “right to vote” . . . , there arose a strong argument to treat each right-to-vote amendment not as an isolated island, but as part of an archipelago. At a certain point, it became textually, historically, and structurally apt to read each affirmation of a “right to vote” not by negative implication but by positive implication. On this view, certain textually specified bases for disenfranchisement were per se unconstitutional—race, sex, age (above eighteen)—whereas all other disenfranchisements were presumptively suspect as violating a more general right-to-vote principle.¹⁵⁹

The voting-rights amendments provide a broad and deep textual foundation for the reform.¹⁶⁰

2. Article V

A textual thicket arises from Article V’s restriction on any change to “equal suffrage in the Senate.”¹⁶¹ Again at first glance (and again pun intended), Article V appears to lock in the one state, two senators rule now and forever, forbidding any change even by amendment. There are several textual arguments, however, that Article V should not impede reform.

First, Article V limits constitutional amendments, and the proposed reform invokes constitutional authority for the Congress to enact a statute.¹⁶² Therefore, Article V does not apply.¹⁶³

This is not mere legal sleight of hand. Remember that the voting-rights amendments were adopted a century or more after the original constitutional text. My reading here is analogous to how various pro-slavery provisions, such as the Fugitive Slave Clause and statutes enacted under it,¹⁶⁴ were simply ignored after the adoption of the Thirteenth, Fourteenth, and Fifteenth Amendments.¹⁶⁵ Similarly, the Nineteenth Amendment automatically and retroactively cancelled references in the Fourteenth Amendment to “male” residents and citizens.¹⁶⁶ It is true that the proposed Senate Reform Act is a statute enacted under the authority of constitutional provisions rather than a constitutional amendment itself, but this does not negate the argument. Statutes enacted under the voting-rights amendments that conflict with original pro-slavery or sexist constitutional provisions prevail by virtue of the new statutes’ constitutional grounding in later amending text.¹⁶⁷

Second, the voting-rights amendments bestow power on Congress to protect a different kind of “equal suffrage”—the kind belonging to people rather than states. The Seventeenth Amendment, which established the popular vote as the requiredmethod of election of senators, replaced the original constitutional structure that gave state legislatures the authority to name U.S. senators.¹⁶⁸ State legislatures did not and could not claim a loss of “suffrage” without consent under Article V following the Seventeenth Amendment’s change of the very meaning of “suffrage.” If “equal suffrage in the Senate” referred originally to a power held by the states as entities, the Seventeenth Amendment removed this power and placed it firmly in the hands of individual citizens.¹⁶⁹

Analogously, states would have no cause to contest a change to their “equal suffrage” under the voting-rights amendments and their construction and enforcement by Congress in a Senate Reform Act. By its plain meaning, and in conjunction with the Seventeenth Amendment as well as the voting-rights amendments, “equal suffrage in the Senate” implies a measure of equal voting rights for citizens in Congress.¹⁷⁰ Citizens in California today do not enjoy “equal suffrage in the Senate” under a contemporary understanding of what “equal suffrage” means.

This interpretation would not render the Equal Suffrage Clause superfluous. Attempting to eliminate a state, allocating zero senators to a state, or abolishing the Senate would run afoul of Article V because no legitimate justification could be given that these actions are aimed to protect equal voting rights within other relevant constitutional constraints.¹⁷¹

Third, even if one concedes Article V limits the authority of Congress to enact legislation that is the equivalent of an amendment, the plain meaning of the text does not constrain all congressional action. Arguably, the states may “consent” to the reform through their representatives in Congress.¹⁷²

With respect to the constitutional meaning of “consent,” Arthur Machen argued long ago that the Fifteenth Amendment was “void” under Article V with respect to those states that refused to ratify the amendment.¹⁷³ Although three quarters of the states ratified the Fifteenth Amendment, many did so only at the points of Union generals’ guns.¹⁷⁴ A minority of states did not ratify at all. Even though the Fifteenth Amendment went into effect, Machen argued that it did not apply to those states that did not specifically “consent” to it or explicitly rejected the change.¹⁷⁵

Machen’s view has fortunately not been followed, but his argument is instructive in providing another reason why Article V should not constrain the proposed reform. Because Congress is acting under the powers granted by the voting-rights amendments, the states have already “consented” to the use of this delegated authority, just as they have “consented” to congressional power to adopt other statutes, such as the Voting Rights Act of 1965.¹⁷⁶

Fourth, Machen focused attention also on the meaning of “state” in Article V.¹⁷⁷ He argued correctly that a “state” does not simply mean an abstract entity, a government, or even a territory with boundaries.¹⁷⁸ A “state,” at least in connection with the idea of “consent,” must mean the “people” in it.¹⁷⁹ What Machen missed is that the Civil War and the Thirteenth, Fourteenth, and Fifteenth Amendments worked a revolution in the very “people” who constitute the states. The war liberated four million slaves, and the amendments converted them (or at least the adult males) into citizens.¹⁸⁰ “We the People” who compose the “states” were fundamentally changed—especially in the formerly rebellious southern Confederacy.¹⁸¹ Abraham Lincoln and Frederick Douglass recognized that this change amounted to a “Second American Revolution,”¹⁸² and the Fourteenth Amendment forged “a second Constitution.”¹⁸³ As Douglass observed, the “destiny” of the Civil War was to “unify and reorganize the institutions of this country” because otherwise the war would have been “little better than a gigantic enterprise for shedding human blood.”¹⁸⁴ In this context, the voting-rights amendments reconstituted the “people” in the “states” who are protected with “equal suffrage in the Senate” under Article V.

3. Intratextual conflict and “time’s arrow”

The better reading of the constitutional text—taking into account what Laurence Tribe calls “time’s arrow” in its evolution—is to interpret the voting-rights amendments as changing the meaning of “consent” and “equal suffrage” in Article V, at least in the context of a congressional statute narrowly tailored to protect the more recently established equal voting rights.¹⁸⁵ The amendments changed the composition of “We the People,” and they put the voting rights of U.S. citizens on an “equal protection” footing. They delegate to Congress the power to protect the voting rights of people excluded from the original Constitution, and the states have “consented” to this power through their ratification of the amendments.

This textual analysis of the proposed reform exposes an intramodal and intertemporal conflict when different parts of the Constitution pull in different directions.¹⁸⁶ A conflict emerges between (1) the plain meaning of original text setting forth the one state, two senators rule and (2) the later texts of the voting-rights amendments establishing federally protected voting rights and giving Congress the power to protect them.¹⁸⁷ “Time’s arrow” favors an affirmative constructive act of Congress to reduce significant voting inequality. The voting-rights amendments grant Congress power to adopt a Senate Reform Act in a manner analogous to the Voting Rights Act of 1965, which has been described as “undoubtedly the most important and most effective civil rights statute ever enacted.”¹⁸⁸

D. Structural Considerations

There is a balance in the constitutional order between federalism—and a proper recognition of the place and role of the states—and the guarantee of fundamental political rights such an equal right to vote.¹⁸⁹ The proposed Senate Reform Act respects both federalism and individual rights.¹⁹⁰

1. Equal voting rights of “We the People”

The strongest structural argument in favor of the reform is that it delivers on the foundational promise of the Declaration of Independence that “all men [and women] are created equal.”¹⁹¹ Voting rights enable the protection of other rights. As the Supreme Court has explained, the right to vote is a “fundamental political right” because it is “preservative of all rights.”¹⁹² The voting-rights amendments confirm the structural importance of these rights.

If democracy means, as its ancient Greek roots suggest, that the people rule, then equal voting rights for all citizens are foundational.¹⁹³ They enable a sensible translation of the expressed will of “We the People” into concrete practices and realities.¹⁹⁴

2. Preservation of federalism

A principal structural objection to the proposed reform is likely to come from defenders of federalism who emphasize the importance of states’ rights against the encroachment of federal power.¹⁹⁵ This challenge would argue that changing the one state, two senators rule would constitute an assault on the “equal suffrage” of the states qua states, and therefore their comparative power.¹⁹⁶ On this view, to change this rule would undermine the original structure of federalism.

This argument fails, however, because the reform would strengthen the federal structure, while at the same time giving force to the principle of equal voting rights. The reform changes nothing regarding the independence and the authority of the states regarding the election of U.S. senators. It changes only the allocation of the number of senators to each state. It respects the principle of federalism by allocating a minimum of one senator to each state, and respects the constitutional rights of states to set the conditions for the election of senators.¹⁹⁷ States may also decide to adopt innovative election schemes to improve democratic representation and potentially reduce political polarization.¹⁹⁸ States would retain authority to decide the details of these elections within the confines of the Seventeenth Amendment and federal rights to vote.

It is true that abolishing the one state, two senators rule would reduce some semblance of equality of states qua states as entities within the federal structure. The balance of power would shift within the Senate to larger states. For example, the seven largest states of California, Texas, Florida, New York, Illinois, Ohio, and Pennsylvania would account for forty-five of 110 senators, and adding in the five states that gain one senator—Georgia, Michigan, New Jersey, North Carolina, and Virginia—produces a sixty-senator majority.¹⁹⁹ This rebalancing with respect to population, however, would not lead to any significant geographical or political imbalance.²⁰⁰ A more compact group of large states would also likely increase the relative power of the states vis-à-vis the national government.

It is also true that citizens in some rural states would lose leverage, but there is no compelling constitutional or political reason for overrepresenting rural rather than urban populations. Note also that rural populations in some very large states such as California, Florida, New York, and Texas are currently underrepresented.²⁰¹ In addition, the proposed reform maintains mathematical overrepresentation of four states with less than one-quarter of one percent of the total population (Alaska, North Dakota, Vermont, and Wyoming) using a principle of federalism to avoid rounding to zero.²⁰² Some mostly rural states are therefore still relatively overrepresented in the reformed allocation.

Allocating a minimum of one senator to each state is a compromise that readjusts the dramatic current imbalance in representation, while preserving the “political safeguards of federalism.”²⁰³ Readjusting the allocation of senators under the reform would strengthen rather than undermine our federal structure.²⁰⁴ The historical drift toward increasing inequality of U.S. Senate representation is a bug, not a feature, of American-style federalism.

3. Preservation of senate functions

The reform changes only the allocation of senators. It retains the structure of six-year terms, respects the Three Classes Clause, and maintains all senate functions regarding treaties, impeachment, and confirmations of appointments.²⁰⁵ It is therefore a relatively moderate change compared with other reform proposals.²⁰⁶

4. Removal of unfair bargaining advantages of small states

The reform would reduce structural unfairness and inefficiencies that allow small states to bargain for larger per capita economic benefits than larger states.²⁰⁷ Small states may often leverage their disproportionate representation to claim more than their fair share of government expenditures. Empirical research confirms that “smaller states tend to receive more federal dollars per capita than large states, controlling for differences in states’ need for federal funds,” and excluding federal entitlement programs for the poor and elderly.²⁰⁸ A Senate Reform Act would mitigate this unfairness and inefficiency while abiding by federalism constraints.

5. Reduction of risks of secession and national instability

The federal structure giving citizens from small states enormously greater clout per citizen than those in much larger states risks long-term structural instability.²⁰⁹ Citizens in large states are likely to resent representational inequality over time, especially given that it is increasing.²¹⁰ In extreme cases, they may go so far as to contemplate secession. A Civil War costing hundreds of thousands of lives cemented the Union against the attempt of eleven southern states to secede.²¹¹ Subsequent world wars in which the United States played a decisive role may cast doubt on the prospect of a possible future secession. However, the recent examples of referendums seeking secession in Catalonia, Scotland, and Quebec suggest that this concern may also lie dormant within regions of the United States.²¹²

For example, citizens in California or Texas, the most populous states, could consider the option of a democratic secession to be justified in part by an unrepresentative Senate.²¹³

California constitutes a population and an economy of sufficient size to become a nation-state on its own. Led by Hollywood and Silicon Valley, its nearly $3 trillion economy would count, if it stood alone, as the fifth largest in the world behind only the United States itself, China, Japan, and Germany.²¹⁴ Since 2015, a group has been “circulating petitions to give citizens a direct vote on whether they want to turn California into ‘a free, sovereign and independent country,’ which could trigger a binding2021 referendum on the question already being called ‘Calexit.’”²¹⁵ California, joined by Oregon and Washington, has been increasingly at odds also with the Trump administration.²¹⁶

Texas has a long tradition of independence as the Lone Star State.²¹⁷ As President Lincoln cautioned at the outbreak of the Civil War, Texas was the only state that claimed separate sovereignty prior to being annexed (except for the original thirteen colonies).²¹⁸ Notwithstanding Lincoln’s warning—and the terrible experience of the Civil War itself—some Texas politicians have again begun to threaten secession, including former Governor Rick Perry.²¹⁹ At a Tea Party rally in 2009, Perry mentioned the option of independence, and his lieutenant governor had meetings with the Texas Nationalist Movement.²²⁰

One poll foundfully one quarter of American citizens to favor secession of their states.²²¹ In 2012, the White House received petitions from all fifty states to secede, with 125,000 signatures from Texas leading the list.²²² Although probably very unlikely at present, Omar El Akkad imagines a dystopian future in which political polarization leads to a new and brutal civil war.²²³

Senate reform would alleviate the unfair representation that affects citizens in the largest states. Knitting these states more closely into the union would tap down secessionist talk and increase long-term national stability.²²⁴

6. Comparable size of the Senate

The estimated 110 senators under the Senate Reform Act compares to the current structure of 100 senators. The Rule of One Hundred approximates the current size of the Senate and will continue to do so over time.²²⁵ Because the Senate is smaller and serves longer terms than the House, it has been said to act as a more “deliberative” body.²²⁶ The Rule of One Hundred keeps total Senate numbers in check, and with six-year terms continuing, the Senate would continue to act as a deliberative body, if in fact it does so now.²²⁷

7. New states

The Senate Reform Act would smooth a path to possible statehood for underrepresented U.S. citizens, such as those living in the District of Columbia, Puerto Rico, and perhaps the Pacific Islands.²²⁸ “No taxation without representation” is a founding principle of the United States, and it should apply to these U.S. citizens who should be allowed to form new states if they wish.²²⁹ The District of Columbia has adopted the motto “Taxation Without Representation” on its license plates as a protest beginning in 2000.²³⁰ Because the District of Columbia, Puerto Rico, and other territories are not states, their citizens have been denied constitutional claims for congressional representation.²³¹

The reform would change only one of the ground rules for the admission of new states, but it is important one. The unwritten “equal footing doctrine” provides for the admission of new states on the same basis as the original ones, including two senators and a proportional number of representatives in the House.²³² This rule would likely apply today if the District of Columbia and Puerto Rico were admitted as the fifty-first and fifty-second states. Changing the “equal footing” rule for new states with respect to the Senate would reduce political resistance to admitting the District of Columbia or Puerto Rico because they would each receive only one senator.²³³

The Twenty-Third Amendment allocates votes in the Electoral College to the District of Columbia as if it were a state.²³⁴ However, this is a poor excuse for full representation of citizens in a capital city with a population larger than the two smallest states.²³⁵ Note also that the District of Columbia has a higher percentage of people of color, as well as LGBT citizens, than the U.S. average, enhancing the argument that the District should benefit from fair and equal representation.²³⁶

The U.S. territory of Puerto Rico, which is also ethnically diverse, deserves representation too. Around ninety-eight percent of Puerto Ricans identify as Hispanic or Latino.²³⁷ A majority of them appear to want statehood.²³⁸ The case for Puerto Rican statehood is even stronger given that Hispanic populations seems to suffer the worst abridgment in senate representation of any discrete minority group.²³⁹ Because Puerto Rico equals about one-hundredth of the U.S. population, it would qualify for one senator. It is larger than twenty states.²⁴⁰

In this context, the deaths of almost 3000 Puerto Rican U.S. citizens in the path of Hurricane Maria in 2017, plus an estimated $9 billion in damages, are germane.²⁴¹ The disaster and its aftermath would have garnered greater political and media attention if Puerto Rico had been a state. The response by the federal government would also have been improved if Puerto Rico had one senator and a complement of five representatives in the House—as well as attendant Electoral College votes.²⁴²

One can also imagine the creation of a new state comprising the non-represented citizens in the U.S. territories of American Samoa, Guam, the Northern Mariana Islands, and the U.S. Virgin Islands (or some combination of them), which may together qualify for one senator and one representative.²⁴³ A new Pacific Islands state would create the smallest state in the union.²⁴⁴

There is another structural benefit related to geographical integrity of representation. Adding the District of Columbia, Puerto Rico, and the Pacific Islands as states would increase the representation of states affected by rising sea levels and increasing hurricane risks associated with global climate disruption. Granting proportional representation to larger coastal states, such as California, Texas, Florida, New Jersey, New York, North Carolina, and Virginia, would likewise increase senate representation of states impacted most by the climate crisis.²⁴⁵

8. A more representative Electoral College

The Senate Reform Act would improve the representativeness of the Electoral College because the electoral votes of each state are determined by the number of representatives and senators.²⁴⁶ The reform would reduce overrepresentation of small states, with any remaining inequality required by our federal structure.

An alternative proposal for an interstate compact among the states to eliminate reliance on the Electoral College has gathered steam in recent years, fueled by public dismay after two recent elections of presidents who did not receive a majority of the popular vote.²⁴⁷ Under a proposed National Popular Vote (NPV) interstate compact, a number of states have agreed to cast their electoral votes according to the majority vote in the entire country, doing an end run around the Electoral College.²⁴⁸ As of this writing, sixteen states have adopted the plan, accounting for 196 of the 270 electoral votes needed.²⁴⁹ Legislation has moved forward seriously in eight additional states accounting for seventy-five electoral votes, so there is some prospect of success.²⁵⁰

The NPV idea raises some structural problems, however, related to federalism.²⁵¹ It may also prove unconstitutional.²⁵²

Richard Posner points out several structural problems with abolishing or skirting the Electoral College.²⁵³ First, the Electoral College provides relative certainty of election outcomes. Close elections in one or two states requiring a recount are bad enough, but a close election in the entire country of several hundred million people could cause disastrous delay, uncertainty, and discord. Second, the Electoral College requires presidentialcandidates to pursue a regional block-vote method of assembling a path to victory—rather than simply piling up huge voting margins in particular states—thus encouraging regional balance in a big, continent-sized country. Third, the Electoral College prevents costly and potentially divisive run-off elections.

Assuming the Electoral College survives, the reform would make it more representative, and the Electoral College system would retain its positive structural features related to federalism and political stability. The overall balance of the current system would not significantly change. See Figure 1 on the next page.²⁵⁴

Figure 1: Electoral College: Before and After Proposed Reform*

Current

Reformed

* Geographically small states not shown are Connecticut (7 to 6), Delaware (3 to 2), Hawaii (3 to 2), Maryland (10 and 10), Massachusetts (11 and 11), New Jersey (14 to 15), and Rhode Island (3 to 2).

Because lack of one-person-one-vote representation is the primary objection to the Electoral College, the reform would supply a constitutionally nonintrusive solution yielding more voting rights equality while respecting federalism. Even if a National Public Vote interstate compact were to be adopted and upheld as constitutional, the Senate Reform Act would provide a needed rebalancing of representation for other reasons.

E. Historical Context

The history of the Constitution and the United States itself combines two primary and contradictory narratives. One is the story of progressive enlightenment after a founding revolution fought for the assertion of basic rights. This story includes the expansion of the franchise, extending the right to vote, unevenly and intermittently, from white male property-owners,²⁵⁵ to all white men regardless of wealth,²⁵⁶ to all men regardless of skin color including former slaves,²⁵⁷ to women,²⁵⁸ to indigenous peoples who acceded to mandatory conditions,²⁵⁹and finally to all adults regardless of age.²⁶⁰ These periodic extensions of voting rights tell the story of the United States since its founding as one of a democratic republic with ever-expanding voting rights.

Another narrative tells of conquest and slavery. Dorothy Roberts writes: “The toxic convergence of race, biology, and politics is rooted in the very origin of this nation. Race was instituted as a system of governance and ‘moral apology’ for keeping Africans in chains and violently dispossessing Indian tribes.”²⁶¹ This narrative includes the violent expansion of the national map and the explosion of a Civil War that ended the sin of slavery. After a short Reconstruction, racist retrenchment and another century of segregation under Jim Crow followed, until a revitalized civil rights movement in the 1960s led to the passage of landmark federal civil and voting rights statutes in a Second Reconstruction.²⁶²

The unrepresentative Senate sounded some particularly sour notes in this history, such as when it filibustered House-passed federal anti-lynching laws three times in the 1920s and 1930s, and when it killed House-approved anti-poll tax bills twice in the 1950s.²⁶³ This counter-narrative to the story of expanding voting rights speaks in tones of racism, sexism, and bias against “the other.”

Jill Lepore describes the historical legacies of “liberty” and “slavery” as “the American Abel and Cain.”²⁶⁴ They continue to compete in the United States today. American citizens voted to elect the first black president for two terms beginning in 2008, and then elected a president in 2016 who traded in racist innuendo and condoned the rise (again) of white nationalism in America.²⁶⁵

The states and their representation in the Senate comprise a core part of this historical narrative. As legal scholar Robert Cover observed, “the place of slavery within the union” inscribes “a fault line in the normative topography of American constitutionalism.”²⁶⁶ The historian Richard Beeman reminds us that “we cannot avert our eyes from the magnitude of the evil sanctioned by the Founding Fathers.”²⁶⁷ The Three Fifths and Fugitive SlaveClauses,²⁶⁸ as well as a slavery-slanted Electoral College,²⁶⁹ assured overrepresentation of the southern slave states until the Civil War.²⁷⁰ The “proslavery tilt”²⁷¹ of the original Constitution “gave slaveholding regions extra clout in every election as far as the eye could see—a political gift that kept giving. And growing.”²⁷²

At the founding, Pennsylvania and Virginia had an equal number of free citizens, but Virginia’s count of slaves enabled it to have a stronger influence in Congress and to dominate early presidential elections.²⁷³ For thirty-two of the first thirty-six years of the republic, presidents hailed from the slave state of Virginia.²⁷⁴ An observer in 1812 complained that “one slave in Mississippi has nearly as much power in Congress, as five free men in . . . New York.”²⁷⁵ David Walker, a free black writer and early abolitionist, described the expansion from thirteen to twenty-four states as “the whites . . . dragging us around in chains and in handcuffs, to their new States and Territories, to work their mines and farms, to enrich them and their children.” He was one of the first to insist that “[t]his country is as much ours as it is the whites, whether they will admit it now or not . . . .”²⁷⁶

The problem of national representation included a long-standing concern about maintaining a “balance” between the slave and free states.²⁷⁷ The chronology of admission of states reveals the alternating pattern of slave and free states—until negotiations broke down over the admission of new states, leading eventually to the Civil War.²⁷⁸ West Virginia, for example, split from Virginia over the issue of joining the Confederacy.²⁷⁹

The very existence of the states themselves and their boundaries express the inheritance of American slavery. See Table 7 on the next page.²⁸⁰

Table 7: Chronology of the State Admissions Prior to the Civil War

State	Date of Admission	Historical Context *
1. Delaware	1787	Slave state †
2. Pennsylvania	1787	Free state^a
3. New Jersey	1787	Free state ^b
4. Georgia	1788	Slave state ††
5. Connecticut	1788	Free state ^c
6. Massachusetts	1788	Free state ^d
7. Maryland	1788	Slave state †
8. South Carolina	1788	Slave state ††
9. New Hampshire	1788	Free state ^e
10. Virginia	1788	Slave state ††
11. New York	1788	Free state ^f
12. North Carolina	1789	Slave state ††
13. Rhode Island	1790	Free state ^c
14. Vermont	1791	Free state ^g
15. Kentucky	1792	Slave state †
16. Tennessee	1796	Slave state ††
17. Ohio	1803	Free state ^h
18. Louisiana	1812	Slave state ††
19. Indiana	1816	Free state ^h
20. Mississippi	1817	Slave state ††
21. Illinois	1818	Free state ^h
22. Alabama	1819	Slave state ††
23. Maine	1820	Free state ^d
24. Missouri	1821	Slave state †
25. Arkansas	1836	Slave state ††
26. Michigan	1837	Free state ^h
27. Florida	1845	Slave state ††
28. Texas	1845	Slave state ††
29. Iowa	1846	Free state
30. Wisconsin	1846	Free state ^h
31. California	1850	Free state ⁱ
32. Minnesota	1858	Free state
33. Oregon	1859	Free state
34. Kansas	1861	Free state ⁱ
35. West Virginia	1863	Slave state †

* The generalizations of “free” and “slave” do not account for many variations in the legal status of slavery in various states, as some of the specific notes indicate.

† Border states that remained in the union during the Civil War.

†† The eleven Confederate States of America.

^aPennsylvania adopted a gradual emancipation law in 1780 and forbid its citizens from engaging in the slave trade in 1788.

^bNew Jersey adopted a gradual emancipation law in 1804.

^cConnecticut and Rhode Island adopted gradual emancipation laws in 1784, and they forbade their citizens from engaging in the slave trade in 1787 and 1788, respectively.

^dThe Massachusetts Supreme Court removed legal support for slavery in 1783. Maine was part of Massachusetts at the time.

^eNew Hampshire adopted a statute interpreted to end slavery in 1857.

^fNew York forbade its citizens from engaging in the slave trade in 1788 and adopted a gradual emancipation law in 1799.

^gVermont outlawed slavery in its constitution in 1777.

^hThe Northwest Ordinance in 1787 banned slavery in the territories that became Ohio, Indiana, Illinois, Michigan, and Wisconsin. Several of these states, however, adopted legal restrictions against black migration.

ⁱThe admissions of California and Kansas as free states triggered the so-called “imbalances” that led in part to the Civil War.

With respect to constitutional interpretation, this history teaches that we should not valorize the states—and we should not put them on a pedestal of an uncritical federalism.

Most states were created within a constitutional framework that abolitionist William Lloyd Garrison called “a covenant with death.”²⁸¹ Even though others such as Frederick Douglass argued that the Constitution was “[n]ot a proslavery instrument,” it remains true that half the states—including the original thirteen—were formed within a framework that promoted slavery.²⁸² The thirty-five states formed before the Civil War had their borders drawn with “color lines” of “slave” and “free.”²⁸³

Geographical distributions of diverse populations reflected patterns of original settlement as well as later migrations.²⁸⁴ Racial violence, including lynching and mass murder, drove some of these migrations.²⁸⁵

“The problem of the twenty-first century,” as historian David Blight writes, “is still some agonizingly enduring combination of legacies bleeding forward from slavery and color lines.”²⁸⁶

Only after the cataclysm of the Civil War were the Three Fifths and Fugitive Slave Clauses superseded, and representation in the House reverted to “whole people” rather than fractions.²⁸⁷ Union armies followed by national policies of Reconstruction Republicans destroyed the Confederate ideologies of “states’ rights” and “white supremacy” (at least temporarily).²⁸⁸ Former slaves became citizens under the Fourteenth and Fifteenth Amendments, and for a brief time during Reconstruction, black men voted and ran for office in the south—with over 800 of them serving in state legislatures and more than 1000 in local governments.²⁸⁹ By 1870, fifteen percent of southern officials were black.²⁹⁰

But the Reconstruction did not last long. President Lincoln had hoped for “a new birth of freedom” and “a government of the people, by the people, for the people.”²⁹⁰Lincoln, supra note 82. Congress passed a Civil Rights Act in 1866.²⁹¹ Reconstruction Republicans pushed through the Thirteenth, Fourteenth, and Fifteenth Amendments. Then came a counter-reaction, ironically called the Redemption, and white southern Democrats returned to power. White terrorist lynching by the Ku Klux Klan and the adoption of Jim Crow laws set back progress on racial equality for another century.²⁹² In the words of W.E.B. Du Bois, “the slave went free, stood a brief moment in the sun; then moved back again toward slavery.”²⁹³ Even the New Deal depended on a devil’s bargain with white southern “Dixiecrats.”²⁹⁴

This history challenges any interpretation of the cold text of the original Constitution asserting that we must uphold the integrity and independence of the states against the demands of progress for greater and deeper respect for the equal voting rights of individuals, especially regarding race and color.

Remember in this history, too, the sordid role played by the Supreme Court. In United States v Cruikshank,²⁹⁵ the Court restrained the federal government from pursuing prosecutions under the Enforcement Act of 1870 against mass murders of black citizens committed by white supremacists in Louisiana.²⁹⁶ Dred Scott v. Sandford²⁹⁷ and Plessy v. Ferguson²⁹⁸ rank among the most racist decisions ever issued.²⁹⁹ In Plessy, the Court upheld the noxious “separate but equal” doctrine that was used to justify segregation in the south long after the Civil War had been fought and ostensibly won by the north.³⁰⁰ The Court’s decision in Dred Scott was even worse. It knocked aside a congressional compromise, found slaves to have no constitutional rights at all, and set spark to the fire of war.³⁰¹ This sorry history of judicial racism should counsel any future Court to tread carefully before striking down a statute such as the Senate Reform Act designed in part to correct historical and present racial injustices.³⁰²

The strongest historical argument against the reform is that the one state, two senators rule resulted originally from the Connecticut Compromise between large and small states.³⁰³ Massachusetts, Pennsylvania, and Virginia accounted for forty-five percent of the population at the founding, and a practical deal accommodated the smaller states.³⁰⁴

However, the motivation for this compromise was not to assure any long-term balance between small and large states—which might otherwise support an originalist interpretation in favor of the one state, two senators rule today. “Senate seats were allocated to States on an equal basis,” Justice Ruth Bader Ginsburg recently observed, “to respect state sovereignty and increase the odds that the smaller States would ratify the Constitution.”³⁰⁵ The deal placated the small states who had the power to hold up the larger ones.³⁰⁶ Small, closed-in “four-sided” states such as Delaware, Maryland, and New Jersey feared the consequences of westward expansion of open-ended “three-sided” states led by Virginia.³⁰⁷ Today, more than two centuries of history have filled in the continental map, obviating this original concern.

In addition, the Connecticut Compromise cannot be separated from other compromises made regarding slavery. The most serious conflicts at the founding involved debates over slavery and not large-versus-small states.³⁰⁸ In Madison’s words, “the States were divided into different interests not by their difference in size, but by other circumstances, the most material of which resulted . . . principally from the effects of their having or not having slaves.”³⁰⁹ The one state, two senators rule was part and parcel of larger compromises concerning slavery, including the Three Fifths Clause giving slave states outsized influence in Congress until the Civil War. In this context, one historian concluded that “the cloud of slavery” combined with the “ambiguity of the part-national/part-federal” Connecticut Compromise likely helped to cause the Civil War “by distorting the sectional balance of power in Congress for decades and by allowing both sides of the war to portray their political claims to sovereignty as legitimate.”³¹⁰

At a minimum, the origins of the Connecticut Compromise within a pro-slavery representational structure, as well as its subsequent ideological history as a justification for “states’ rights” claims in and after the Civil War, reveal no good political theory for the one state, two senators rule. Madison was right.³¹¹ Failure to adopt a scheme of national representation of citizens apportioned by relative population in the Senate contributed to a terrible war, and this legacy still polarizes the nation with uneven representation and racial dysfunctionality. This history supports the following legal analogy: Just as the voting-rights amendments cancelled pro-slavery and sexist provisions in the original Constitution, so too a statutory reform grounded in the same voting-rights amendments and narrowly tailored to protect equal voting rights should override the original one state, two senators rule.

It is admittedly rare to allow a statute, even when grounded in power derived from later constitutional amendments, to contravene an original constitutional rule.³¹² However, the Lockean paradox created by Article V’s anti-amendment provision, which was added almost as an afterthought at the Constitutional Convention after a very long, hot summer of hard work, leaves no choice but to bite the bullet.³¹³ Our founding ancestors whom we most respect, including Madison, Hamilton, and Wilson, would, if they were alive, nod their heads in approval.³¹⁴

Historical path dependence, then, rather than any viable theory of representation is the primary explanation for the one state, two senators rule.³¹⁵ The Connecticut Compromise, forged on the basis of interest rather than principle,³¹⁶ is too weak a reed to support the representational unfairness in the Senate, which has multiplied more than six-fold since the founding, especially in light of later constitutional amendments protecting equal voting rights of U.S. citizens.³¹⁷

An opponent might argue also that the one state, two senators rule shields states from overreaching by the national government.³¹⁸ The proposed reform, however, shifts power, in federalist terms, only among the states, and not in terms of empowering of the national government against the states. If anything, greater power accumulated in a fewer number of states may increase the power of the states vis-à-vis the national government.³¹⁹

In addition, even if one accepts an originalist argument in favor of the one state, two senators rule, the historical context reflects an intramodal conflict that parallels the one in textual analysis.³²⁰ An originalist interpretation must account for the intentions and meaning also of those who passed the various voting-rights amendments. They could not have imagined a future Congress passing a Senate Reform Act specifically, but they authorized Congress to pass legislation broadly “appropriate” to protect equal voting rights.³²¹ As the historian Eric Foner concludes, “the [Fourteenth] Amendment’s central principle remained constant: a national guarantee of equality before the law.”³²²

Just as “time’s arrow” favors the later constitutional rule in textual interpretation, so should the historical force of the voting-rights amendments hold sway. The founders had no better foresight than those who enacted the voting-rights amendments. As two scholars observe:

In their wildest dreams the framers of the Constitution never imagined that the population of the United States would someday approach [and exceed] 300 million. Nor did they imagine that a single state—on the Pacific coast of the continent, no less—would have a population almost ten times that of the entire country at the first census . . . . The entire country in 1790 had roughly the same population as Connecticut today.³²³

The grossly unequal representation of the contemporary Senate was not foreseen by either the founders or those who wrote and ratified the voting-rights amendments, but the latter empowered Congress to act on principle to protect against this kind of development.

A Senate Reform Act would set a positive trajectory into the future for the national protection of equal voting rights. If adopted, one hopes a future Supreme Court would choose not to trample again on the long-term narrative of enhancing democracy in America. If it did, then one may recall the words Frederick Douglass. “The Supreme Court of the United States is not the only power in the world,” he said in the aftermath of Dred Scott, for “the Supreme Court of the Almighty is greater.”³²⁴ The Court “could not change the essential nature of things, making evil good, and good evil.”³²⁵

F. Moral Principle

If textual analysis poses the highest hurdle of constitutional interpretation for the proposed reform, the question of moral principle is probably the lowest. It is difficult to conceive of an objection to the reform on moral or ethical grounds—other than maybe an unarticulated preference for “settled expectations” or “governmental regularity.”³²⁶ Presented with evidence of gross voting inequality, we should simply follow Spike Lee’s advice and “do the right thing.”³²⁷

Scholars in many disciplines agree that “quantitative” equality is an important value.³²⁸ “Today,” as Robert Dahl says, “we have come to assume that democracy must guarantee virtually every adult citizen the right to vote.”³²⁹

It is also true that “equality” standing alone amounts to an “empty idea.”³³⁰ We must have a theory for why equality in voting matters, and this theory should include concepts of human dignity and self-respect, as well as equal opportunity to participate in the self-governance of elections.³³¹

In addition, a theory of political equality in voting assumes some other factors, such as voters’ basic cognitive competence. Voters need civic education to understand what is at stake in elections and why they matter.For good political outcomes, more than quantitative equality to participate is required because inequality of wealth or other social imbalances in conditions can skew political outcomes, especially if voters do not have the capacity to think for themselves.³³²

In law, the principle of equal voting rights expresses general values of “equal treatment” and “treating like cases alike,” even if the values are not self-executing.³³³ As Justice Antonin Scalia said, “the appearance of equal treatment” is one of the “most substantial” values in the law.³³⁴ He continued:

As a motivating force of the human spirit, that value cannot be overestimated. Parents know that children will accept quite readily all sorts of arbitrary substantive dispositions—no television in the afternoon, or no television in the evening, or even no television at all. But try to let one brother or sister watch television when the others do not, and you will feel the fury of the fundamental sense of justice unleashed. The Equal Protection Clause epitomizes justice more than any other provision of the Constitution.³³⁵

An analogous argument applies in the context of voting. How can it be fair for a citizen to move from California to Nevada or Alaska and feel their voting weight multiplied by fifteen or fifty times?³³⁶ Does a citizen in New Mexico deserve 13.5 times more say in the Senate than one across the border in Texas?³³⁷ These discrepancies are not reconcilable with respect for citizens’ equal rights to vote in their national government.

Many theories of political order rely on a moral principle of voting equality. Consider John Rawls’ theory of justice as an example.³³⁸ For Rawls, a just political order relies on “a just constitution” that establishes “a just procedure arranged to ensure a just outcome.”³³⁹ To this end, “the liberties of equal citizenship must be incorporated into and protected by the constitution,” and “these liberties include . . . equal political rights.”³⁴⁰ Specifically, Rawls articulates a “principle of (equal) participation” that “requires that all citizens . . . have an equal right to take part in, and to determine the outcome of, the constitutional process that establishes the laws with which they are to comply.”³⁴¹ He continues: “Justice as fairness begins with the idea that where common principles are necessary and to everyone’s advantage, they are to be worked out from the viewpoint of a suitably defined initial situation of equality in which each person is fairly represented.”³⁴² “All sane adults,” Rawls concludes, “have the right to take part in political affairs, and the precept of one elector one vote is honored as far as possible. Elections are fair and free, and regularly held.”³⁴³

Other philosophers agree that equal representation is a basic value. One may disagree with Rawls about how far to go in order to achieve political equality, but there is little controversy over the formal requirement of equal voting rights. “Democratic equality,” according to one survey, “embraces the norm that law-makers and top public officials should be selected in democratic elections. All mentally competent adult citizens should be eligible to vote and run for office in free elections . . .in which all votes count equally and majority rule prevails.”³⁴⁴

The moral principle of equal voting rights finds wide agreement in different schools of thought.³⁴⁵ Deontologists and social contract theorists emphasize the need for voting to express rights of human dignity and the pursuit of one’s vision of the good life for oneself and the common good.³⁴⁶ Utilitarian and welfare theorists see equal voting as a means of expressing interests and preferences to aggregate them fairly into an overall measurement of social good and happiness.³⁴⁷ Libertarians agree that everyone should have a right to protect their property and advance their interests on a legally equal basis with others.³⁴⁸ All of these moral theories converge in supporting a principle of equal voting rights for individuals.

One objection may recall “states’ rights” theories of federalism. According to this objection, the equal rights that citizens may claim in the United States extend primarily to their rights as citizens of their respective states, and not citizens of the United States.

The Supreme Court in U.S. Term Limits, Inc. v. Thornton³⁴⁹ raised this issue tangentially in striking down, in a five-to-four opinion, an Arkansas law imposing term limits on U.S. senators and representatives.³⁵⁰ Writing for the Court, Justice John Paul Stevens argued that “sovereignty is vested in the people, and that sovereignty confers on the people the right to choose freely their representatives to the National Government.”³⁵¹

In a long dissenting opinion, Justice Clarence Thomas objected that the “Constitution simply does not recognize any mechanism for action by the undifferentiated people of the Nation.”³⁵² He added:

[T]he notion of popular sovereignty that undergirds the Constitution does not erase state boundaries, but rather tracks them. The people of each State obviously did trust their fate to the people of the several States when they consented to the Constitution; not only did they empower the governmental institutions of the United States, but they also agreed to be bound by constitutional amendments that they themselves refused to ratify. See Art. V . . . . At the same time, however, the people of each State retained their separate political identities. As Chief Justice Marshall put it, ‘[n]o political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass.’³⁵³

Nevertheless, it is no dream that the Civil War and subsequent amendments altered the constitutional landscape and established federal voting rights operative on the national government as well as the states.³⁵⁴

Recall the universal language used in the voting-rights amendments: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or any State.”³⁵⁵ “We the People” of the United States are acting in this declaration, and delegating power to protect our voting rights to Congress and not the states (or, frankly, the Supreme Court). Note, also, that senators swear an oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic,” and “bear true faith and allegiance to the same.”³⁵⁶ U.S. senators owe their constitutional duties to their constituents as citizens of the United States.

Justice Anthony Kennedy’s concurrence in Term Limits sounds the right note of compromise: Americans are citizens of both the United States and their individual states. In Kennedy’s words,

Federalism was our Nation’s own discovery. The Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other. The resulting Constitution created a legal system unprecedented in form and design, establishing two orders of government, each with its own direct relationship, . . . its own set of mutual rights and obligations to the people who sustain it and are governed by it.³⁵⁷

A Senate Reform Act would redeem the voting rights of U.S. citizens. It respects federalism and applies the moral and political principle of equal voting rights at a national level for national elections.

G. Legal Doctrine

Last but not least, the proposed reform finds support in legal doctrine announced in Supreme Court precedents. The Senate Reform Act would follow in the same path as the Voting Rights Act of 1965, with Congress focusing on the governing structure of the United States itself rather than the states.³⁵⁸

The most relevant cases are those that upheld congressional authority to promulgate the Voting Rights Act. In South Carolina v. Katzenbach,³⁵⁹ the Court rejected claims by a state that the Voting Rights Act exceeded the constitutional authority of Congress under the Fifteenth Amendment.³⁶⁰ South Carolina argued that “the principle of the equality of States” meant Congress could not adopt measures reaching into state governments to review or supervise elections.³⁶¹ The Court replied by setting forth a principle that applies also to the proposed reform here.

The language and purpose of the Fifteenth Amendment, the prior decisions construing its several provisions, and the general doctrines of constitutional interpretation, all point to one fundamental principle. As against the reserved powers of the States, Congress may use any rational means to effectuate the constitutional prohibition of racial discrimination in voting.³⁶²

Although more recent cases have questioned the continuing need for remedial measures under the Voting Rights Act, the constitutional authority and the “success” of the statute have been reaffirmed.³⁶³ The only difference in an application of this doctrine to a Senate Reform Act would be that it addresses abridgment “by the United States” rather than “any state.”³⁶⁴ The reform aims at the same substantive problem as the Voting Rights Act: denial or abridgment of equal voting rights.

When the Constitution explicitly authorizes Congress to legislate, then its power reaches its zenith. The Court in Katzenbachquoted the canonical case of McCulloch v. Maryland³⁶⁵: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the constitution, are constitutional.”³⁶⁶

The Court in Katzenbach praised Congress for its “inventive manner” in addressing a recalcitrant historical problem.³⁶⁷ History is important because Congress had retreated after Reconstruction and allowed racist white southerners to reassert power over elections and voting.³⁶⁸ Because the Voting Rights Act was part of what has been correctly called the Second Reconstruction,³⁶⁹ then a Senate Reform Act may constitute part of a Third Reconstruction.³⁷⁰ In any event, both the Voting Rights Act and the proposed Senate Reform Act aim at a similar end of voting equality.

In Katzenbach, the Court upheld federal oversight to prohibit discriminatory impediments to voting such as literacy tests.³⁷¹ Other cases addressed the problem of geographical malapportionment in state legislatures. In 1962, in Baker v. Carr,³⁷² the Court found Tennessee’s legislative scheme to violate the Equal Protection Clause.³⁷³ The next year, in Gray v. Sanders,³⁷⁴ the Court struck down the legislative structure in Georgia.³⁷⁵ In reviewing the state’s representational system, the Court asked:

How then can one person be given twice or 10 times the voting power of another person in a statewide election merely because he lives in a rural area or because he lives in the smallest rural county? Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote—whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit.³⁷⁶

Geographical disparities that emphasize the votes of rural populations merely because of their location on a map run afoul the Equal Protection clause and distort the concept of equal voting rights.

This principle of equal voting rights applies also to the U.S. Senate. The Court in Gray, with Justice William O. Douglas writing for the majority, said that “[t]he conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing—one person, one vote.”³⁷⁷

Then, in 1964, the Court dropped the “bombshell” of Reynolds v. Sims.³⁷⁸ In Reynolds, the Court found Alabama’s legislature to be unconstitutional under the Equal Protection Clause.³⁷⁹ Going further than previous precedents, the Court “minted a new rule that every district had to be equally populous.”³⁸⁰ “Legislators represent people, not trees or acres,” the Court reasoned, following Gray and other cases.³⁸¹ “[I]f a State should provide that the votes of citizens in one part of the State should be given two times, or five times, or 10 times the weight of votes of citizens in another part of the State, it could hardly be contended that the right to vote of those residing in the disfavored areas had not been effectively diluted.”³⁸² Such a state electoral system could be easily manipulated, according to the Court, to disenfranchise some citizens by inflating the importance of others.³⁸³ In one stroke, the Court knocked out more than forty state electoral systems as unconstitutionally unequal.³⁸⁴

My argument here is not that the U.S. Senate can or should be struck down as unconstitutional in a case brought by private citizens or the states acting on their behalf.³⁸⁵ The current structure of the Senate violates the principle of equal voting rights of citizens, but it does not follow that a free-standing constitutional claim should be justiciable. The federal courts should, in my view, decline to entertain such a challenge because it would create an impractical and unwise conflict between the courts and the political branches. If the Supreme Court ordered reform of the Senate, it would set up an untenable power contest, and courts should therefore deny standing in these cases on grounds of the political question doctrine.³⁸⁶

In addition, without an affirmative act of Congress, no intramodal textual constitutional conflict is presented.³⁸⁷ The distinction between “constitutional construction” and “constitutional interpretation” helps to explain the difference.³⁸⁸ If and when Congress adopts a Senate Reform Act, then it would construct the meaning of the voting-rights amendments, and courts should then defer to that construction, perhaps even adopting the doctrine of “clear mistake.”³⁸⁹ In the absence of congressional action, the textual meaning of the voting-rights amendments regarding congressional apportionment is much less determinate.³⁹⁰

Nonetheless, the legal principles of voting equality and fairness enunciated in cases such as Baker, Gray, and Reynolds apply with similar persuasive force to the proposed reform. Recall that the levels of mathematical inequality of representation in the U.S. Senate today are much higher than the ratios struck down in these cases against the states. Compared with inequality in the Senate dividing the smallest and largest states in a ratio close to seventy-to-one, the ratios of voting inequality in some of the state legislative cases seem quaint.³⁹¹

More recent cases are not to the contrary. In Bush v. Gore,³⁹² for example, the Supreme Court intervened in a state recount of votes in a presidential election and applied an equal protection rationale to protect voters’ rights. Ostensibly, the Court acted to protect all Florida voters from unequal treatment in recounting votes in a close federal election.³⁹³ The case has been criticized as result-oriented: five Republican-appointed justices holding in favor of the Republican candidate.³⁹⁴ At a minimum, though, the Court in Bush v. Gore followed in the tradition of applying the Equal Protection Clause to protect federal voting rights. The Court observed that states could not “value one person’s vote over that of another” in federal elections.³⁹⁵ The Court followed Reynolds v. Sims in arguing that “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by prohibiting the free exercise of the franchise.”³⁹⁶ In this respect, said the Court, there was “no difference between the two sides of the present controversy.”³⁹⁷ The dissenting minority opinions followed leading equal protection cases too, though coming to the opposite conclusion on the merits.³⁹⁸

The recent case of Shelby County v. Holder³⁹⁹ is also not to the contrary. In Shelby County, the Court referred favorably to the history of the voting-rights amendments and the passage of the Voting Rights Act.⁴⁰⁰ Plaintiffs challenged the singling out of southern states for special review and oversight, and the Court found this part of the Voting Rights Act to conflict with concerns about federalism.⁴⁰¹ Dubiously, the Court claimed the political and social culture in the United States had evolved beyond the racial discrimination of the past, especially in the old southern slave states.⁴⁰² In making this empirical judgment, the Court nonetheless recognized the success of the Voting Rights Act, as well as its constitutionality.⁴⁰³

Chief Justice John Roberts, writing for the Court, endorsed a future-oriented interpretation: “The Fifteenth Amendment commands that the right to vote shall not be denied or abridged on account of race or color, and it gives Congress the power to enforce that command. The Amendment is not designed to punish for the past; its purpose is to ensure a better future.”⁴⁰⁴ The Senate Reform Act is designed precisely in this fashion: to provide equal voting rights for all American citizens in “a better future.”

IV. Political Balance and Feasibility

The proposed Senate Reform Act is drawn mathematically and in politically neutral terms.⁴⁰⁵ Because it would produce relatively balanced political outcomes for Republicans and Democrats, the “red” and the “blue,”it should also prove politically feasible.⁴⁰⁶

Consider the following analysis. Working from the template of the 2016 presidential election, and allocating all gains and losses of senators in the reform to states according to their votes in that election, big red states like Texas and Florida would gain eleven senators as against ten extra senators for big blue California. Losses of senators in small states would roughly even out: losses in low-population western red states countering losses in the blue states of New England. See Table 8 on the next page.⁴⁰⁷

Table 8: Estimated Net Gains/Losses of Senators in Red and Blue States

State	Vote in 2016	New Senators	Net Gain/ Loss
Alabama	Trump	2	0
Alaska	Trump	1	-1
Arizona	Trump	2	0
Arkansas	Trump	1	-1
California	Clinton	12	+10
Colorado	Clinton	2	-1
Connecticut	Clinton	1	-1
Delaware	Clinton	1	-1
Florida	Trump	6	+4
Georgia	Trump	3	+1
Hawaii	Clinton	1	-1
Idaho	Trump	1	-1
Illinois	Clinton	4	+2
Indiana	Trump	2	0
Iowa	Trump	1	-1
Kansas	Trump	1	-1
Kentucky	Trump	1	-1
Louisiana	Trump	1	-1
Maine †	Clinton/Trump	1	0
Maryland	Clinton	2	0
Massachusetts	Clinton	2	0
Michigan	Trump	3	+1
Minnesota	Clinton	2	0
Mississippi	Trump	1	-1
Missouri	Trump	2	0
Montana	Trump	1	-1
Nebraska	Trump	1	-1
Nevada	Clinton	1	-1
New Hampshire	Clinton	1	-1
New Jersey	Clinton	3	+1
New Mexico	Clinton	1	-1
New York	Clinton	6	+4
North Carolina	Trump	3	+1
North Dakota	Trump	1	-1
Ohio	Trump	4	+2
Oklahoma	Trump	1	-1
Oregon	Clinton	1	-1
Pennsylvania	Trump	4	+2
Rhode Island	Clinton	1	-1
South Carolina	Trump	2	0
South Dakota	Trump	1	-1
Tennessee	Trump	2	0
Texas	Trump	9	+7
Utah	Trump	1	-1
Vermont	Clinton	1	-1
Virginia	Clinton	3	+1
Washington	Clinton	2	0
West Virginia	Trump	1	-1
Wisconsin	Trump	2	0
Wyoming	Trump	1	-1
Net gain/loss			Blue +8/ Red +2

† Maine split its electoral votes.

Overall, this simple, straightforward model yields a national gain of eight Democrats compared with a gain of two Republicans, but this does not account for the likely variations within states with respect to election methods likely to give “purple” outcomes of mixed-party representation in larger states.⁴⁰⁸ Moreover, even if all votes in the Electoral College in 2016 had been, hypothetically, awarded according to the reformed apportionment as illustrated in Table 8, the outcome of the election would not have changed.⁴⁰⁹ Although the proposed reform may initially benefit Democrats, the overall long-term political consequences would be uncertain.⁴¹⁰ At least, our political future would be more fair and representative. One might observe, however, that under the Senate Reform Act a current majority of twenty-six states would lose a senator.⁴¹¹ Why would any of them agree?

If U.S. senators and representatives voted only in the interest of their own states’ relative power, then the reform would indeed fail. Representatives in theHouse would likely follow the interests of their states and vote in favor of the reform. Senators, though, would balk. Those in the twelve states gaining senators would vote yes. Those in another twelve states that keep two senators might say yes too. Those in the twenty-six states that lose a senator, though, would kill the bill.⁴¹²

Sectional politics of this kind, however, no longer rules the day.⁴¹³ In the post-World War II period, presidential leadership and ideologically split parties matter more than sectional or geographical differences.⁴¹⁴ Since the 1970s, ideology has grown more important—with Democrats becoming more “liberal” and Republicans more “conservative.”⁴¹⁵ Ideological polarization now trumps regional and geographical divisions.⁴¹⁶ Indicating the depth of continuing racial division in the United States, scholars and journalists identify a key watershed in the ideological fervor of the civil rights reforms of the 1960s, including the Voting Rights Act of 1965.⁴¹⁷ The election of the first black president stoked implicit as well as explicit racist reactions.⁴¹⁸ In response, there is a growing social movement aiming at a Third Reconstruction.⁴¹⁹ In this context, a Senate Reform Act is politically feasible from an ideological point of view because it would improve voting equality and racial justice in America, and thus may find a place as part of an agenda for a Third Reconstruction.

Another objection to the reform is that urban states would gain and rural states would lose.⁴²⁰ This prediction is broadly true. Census data shows that ten of the eleven states with forty percent or more of their population in rural areas would lose a senator under the reform.⁴²¹ However, other than an obvious self-interested claim by people living in rural areas, it is not clear what principle should grant them a special privilege, especially when the voting weight differentials are so large. Surely, the founders had no original intent to privilege rural areas given that ninety-five percent of the country was rural at the time of the first census in 1790.⁴²² They could not have foreseen the urban revolution. The better substantive argument is that rural states do not deserve better or more representation simply because they are rural. Given that rural populations now represent only one-fifth of the total population, this fact is not likely to be decisive politically either.⁴²³ As indicated above too, rural citizens in very large states are also currently underrepresented by the one state, two senators rule, and the reform would likely increase their relative representation.⁴²⁴

A related practical political hurdle may arise from what is known as the endowment effect or status quo bias.⁴²⁵ States that “lose” a senator may feel more strongly about the loss as opposed to “gains” for other states. One option to alleviate this concern is to double the number of senators allocated to all states, thus leaving two senators as a minimum for each state (eliminating any direct feeling of “loss” of an initial “endowment”), and following a Rule of Two Hundred to allocate other seats.⁴²⁶ This would almost double the size of the reformed Senate to 216 senators rather than 110. See Table 9 on the next page.⁴²⁷

Following a Rule of Two Hundred would reduce the attractiveness of the proposal with respect to following tradition with respect to size. However, it would remove the potentially politically difficult prospect of proposing that states such as Iowa, Nevada, New Hampshire, and South Carolina, which are currently early primary venues for presidential candidates, would all “lose a senator” under the reform.⁴²⁸

Table 9: Proposed Allocation of Senators under a Rule of Two Hundred

State	2017 Population*	Share of One Percent of Total U.S. Population	Proposed Senators based on .05 units
United States	325,719,178
Alabama	4,874,747	1.49	3
Alaska	739,795	.23	2
Arizona	7,016,270	2.15	4
Arkansas	3,004,279	.92	2
California	39,536,653	12.13	24
Colorado	5,607,154	1.72	3
Connecticut	3,588,184	1.10	2
Delaware	961,939	.30	2
Florida	20,984,400	6.44	13
Georgia	10,429,379	3.20	6
Hawaii	1,427,538	.44	2
Idaho	1,716,943	.53	2
Illinois	12,802,023	3.93	8
Indiana	6,666,818	2.05	4
Iowa	3,145,711	.97	2
Kansas	2,913,123	.89	2
Kentucky	4,454,189	1.37	3
Louisiana	4,684,333	1.44	3
Maine	1,335,907	.41	2
Maryland	6,052,177	1.86	4
Massachusetts	6,859,819	2.11	4
Michigan	9,962,311	3.06	6
Minnesota	5,576,606	1.71	3
Mississippi	2,984,100	.92	2
Missouri	6,113,532	1.88	4
Montana	1,050,493	.32	2
Nebraska	1,920,076	.59	2
Nevada	2,998,039	.92	2
New Hampshire	1,342,795	.41	2
New Jersey	9,005,644	2.76	6
New Mexico	2,088,070	.64	2
New York	19,849,399	6.09	12
North Carolina	10,273,419	3.15	6
North Dakota	755,393	.23	2
Ohio	11,658,609	3.58	7
Oklahoma	3,930,864	1.21	2
Oregon	4,142,776	1.27	2
Pennsylvania	12,805,537	3.93	8
Rhode Island	1,059,639	.33	2
South Carolina	5,024,369	1.54	3
South Dakota	869,666	.27	2
Tennessee	6,715,984	2.06	4
Texas	28,304,596	8.69	17
Utah	3,101,833	.95	2
Vermont	623,657	.19	2
Virginia	8,470,020	2.60	5
Washington	7,405,743	2.27	4
West Virginia	1,815,857	.56	2
Wisconsin	5,795,483	1.78	4
Wyoming	579,315	.18	2
Total Senators			216
District of Columbia	693,972	.21	(2)
Puerto Rico	3,337,177	1.02	(2)
Pacific Islands	375,165	.11	(2)
American Indians and Alaskan Natives	2,726,278	.73	(2)

* U.S. Census, 2017 estimate used for illustration purposes only.

Even though the Senate Reform Act is drawn in politically neutral terms, and even though the political future is highly uncertain and difficult to predict, it is nevertheless likely that most Republicans today would oppose the reform for two reasons. First, Republicans have tended in recent years to adopt a strong “states’ rights” view of political and constitutional theory, and the proposal follows in a Madisonian nationalist strain.⁴²⁹ Second, Republicans benefit from the current status quo bias in the Senate favoring white voters. In both the 2016 presidential election and the 2018 midterms, Republicans attracted more white voters (by 10 to 20% margins), while Democrats had an edge in nonwhite categories (including approximately 80% margins among black voters, 40 to 50% among Asian voters, and almost 40% among Hispanic voters).⁴³⁰ For similar reasons of race and politics, Republicans are probably unlikely to support a reform that would make it easier to add the District of Columbia and Puerto Rico as new states.⁴³¹ Far-sighted Republicans, however, might consider whether they would prefer the proposed reform that would allow adding the District of Columbia and Puerto Rico as states with only one senator each to the alternative of adding both with two senators. One can also imagine a future in which Republicans abandoned a racially clouded political strategy.

Under at least some future circumstances, then, one can imagine a scenario in which a “blue wave” would continue to build,⁴³² and Democrats could win control of the Senate and the Presidency, as well as the House, in 2020, 2024, or 2028. Republicans in some large states might then also be persuaded to support Senate reform along the lines indicated here because it would improve their likely outcomes in future elections. For example, Republicans in large states such as California and New York, and perhaps Florida and Texas too, are currently underrepresented in the Senate.⁴³³ If the proposed Senate Reform Act gathered support from both a Democratic president and a Democratic Congress, along with some Republican support in big states, then it is feasible that enough Democrats in small states and Republicans in large ones could support the change on grounds of fairness and national unity, as well as partisan politics. A Senate Reform Act would then pass into law.

Conclusion: Make the Senate a Democracy Again

The unrepresentative structure of the Senate has been stitched into the constitutional fabric of the United States from the beginning. It is a fabric that has been stained by the inherited sin of African slavery and the long exclusion of indigenous people and women.

Over time, a civil war and other political battles have expanded the franchise beyond the property-owning, often slaveholding white men who wrote and ratified the original text of the Constitution. These victories overstitched permanent patches into our constitutional clothing. The Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twentieth-Sixth Amendments enshrine a right to vote to all adults equally, without regard to race, ethnicity, color, national origin, sex, sexual orientation, wealth, and age. They explicitly delegate to Congress the power of enforcement.

It has been said “the arc of the moral universe is long, but it bends toward justice.”⁴³⁴ This has been true in the United States with respect to the evolution of constitutional protections of voting rights, though it has followed a spiraling or zig-zag pattern of historical progression.⁴³⁵

The U.S. Senate, as shown here, has become increasingly skewed in representation. It is an outlier among modern democracies in the severity of its unequal distribution of voting weight and power, disfavoring all citizens who live in large states. This unequal representation is also heavily biased in favor of white people, as well as biased, though less strongly so, against women and other protected categories of citizens regarding age and sexual orientation.⁴³⁶

In these circumstances, Congress should exercise its power under the voting-rights amendments. It should correct this injustice that lies at the core of American democracy. It should act to place all U.S. citizens on a more equal footing in their Senate.

The Senate Reform Act recommended here provides a simple mathematical solution. It employs the Rule of One Hundred to adjust the allocation of senators to the states. Big states would add senators, mid-sized states would retain two senators, and small states would lose a senator. The overall number of senators would remain about the same, increasing from 100 to 110. If politically more feasible, a reform could follow instead of a Rule of Two Hundred in order to avoid the loss aversion that small states might otherwise feel too acutely. Other than total number and allocation of seats, all constitutional rules regarding the Senate would remain the same.

There are other structural advantages to the proposal. Because it is politically easier to add a new state with one senator rather than two, the reform would pave a path to potential statehood for the District of Columbia, Puerto Rico, and perhaps the Pacific Islands and indigenous peoples. The reform would automatically render the Electoral College more representative of the nation, relieving pressure for other potentially more disruptive changes, such as an interstate compact for a national popular vote. The reform would counter the tendency for senators in small states to siphon more than their fair share of government spending from the federal budget.

Despite these advantages, some may stubbornly contend that the one state, two senators rule can never change—because the original text of the Constitution says so! However, standard modes of constitutional interpretation give a different answer. The text of the later voting-rights amendments empowers Congress to override the original one state, two senators rule because the Senate, as presently constituted, abridges the equal voting rights of U.S. citizens. Textual analysis, as well as consideration of structure, history, morality, and legal authority, support interpreting the reform as constitutional.

It is absurd to say a bad constitutional rule can never be changed, except by a revolution. We should not read the Constitution to put a straightjacket on the progression of representative government, binding us forever to the dead hand of an inflexible past. “The Earth belongs always to the living generation,” said Thomas Jefferson, and “the dead have neither powers nor rights over it.”⁴³⁷

Once before, the Seventeenth Amendment made the Senate more democratic, transferring the right to vote for U.S. senators from state legislators directly to the people. It is time now to resolve our national Lockean paradox of unequal representation. We should make the Senate a democracy, again.

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