Earlier this week, Wharton law professor Eric Orts authored an article in The Atlantic on how to “fix” the Senate, as if it had one wheel falling off and needed a transmission. Orts’ basic argument was that the Senate should be proportioned according to population, with each state getting 1 senator and the rest apportioned by population, similar to the House of Representatives.
This is not a new idea, as the Constitutional Convention of 1787 almost ground to a halt over the question of apportionment of the Senate. James Madison, a large-state delegate from Virginia and arguably one of the most influential men at the Constitutional Convention, argued that the upper chamber of Congress (now the Senate) should be apportioned at least in part based on population. This would have naturally benefit Virginia which had a large population, particularly when slaves were counted a part of that population. Small States argued that each State should have an equal vote in the upper chamber, which was what the Articles of Confederation provided for Congress as it existed in 1787. The Connecticut Compromise, sometimes called the Grand Compromise, apportioned the House of Representatives by population (i.e. the more population a State had the more representatives it would get) while the Senate received equal apportionment (2 senators from each State). Large State representatives, particularly Madison, saw this as a defeat, and so, as a perk to the large States, the Constitution provided that all revenue-raising bills must originate in the House of Representatives, giving the small States an effective veto through the equally-apportioned Senate.
That seems to have worked well for 200+ years. There have been scholars and others who have suggested throughout our history that the Senate be changed. For instance, the 17th Amendment, ratified in 1913, provided that Senators would be directly elected by the people of a various State instead of the various State legislatures appointing Senators as they had previously done. The Atlantic, which seems to have a beef with the Senate, a few weeks go trotted out former Congressman John Dingell to make an argument for simply abolishing the Senate.
But the merits of whether the Senate should be apportioned by population are not our main concern here. Mr. Orts’ legal reasoning to achieve that goal is our concern.
Orts runs into a very large problem when discussing amending the constitution: the constitution itself. The Constitution provides its own amendment mechanism, and generally requires that 3/4 of all of the states have to agree to the amendment. For instance, the Utah legislature rejected the 17th Amendment noted above and a plethora of southern states, Florida, Georgia, Kentucky, Mississippi, South Carolina, and Virginia, simply refused to take action. Yet, the Amendment was ratified because 3/4 of the States ratified it.
The Senate, though, is different. Since equal representation in the Senate was a huge thing for small States, they made sure that the Constitution contained language that no State could be deprived of its equal representation in the Senate unless it agreed:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
Wow, this seems air tight. How can some States get more Senators than others without all of the States agreeing? That’s what the plain text of the constitution says, right? Nah. Not according to Orts. According to his august legal reasoning, “But, look, when conservative lawyers first argued that the Affordable Care Act violated the Commerce Clause, that seemed unthinkable, too. Our Constitution is more malleable than many imagine.”
So how does one go about getting around the provisions of the “malleable” Constitution quoted above? This, my friends, is where Mr. Orts gets my award for silly argument of a lifetime. He goes on to say that if the Constitution provides for equal senators, and we can’t amend that Constitution, then we’ll just pass a statute:
First, consider that Article V applies only to amendments. Congress would adopt the Rule of One Hundred scheme as a statute; let’s call it the Senate Reform Act. Because it’s legislation rather than an amendment, Article V would—arguably—not apply.
And “arguably” that is the silliest thing I’ve ever read.
Here is a law professor claiming that if the Constitution and a statute disagree then the statute wins. Any first year law student and most 9th graders can tell you that such is not how the law works. The Constitution is the supreme law and a statute must yield to it. That’s why statutes get declared unconstitutional but constitutions never get declared un-statute-al.
But step back and think about this. One, this is the type of revisionist theory that pervades liberal legal circles. If the Constitution doesn’t say what you want, then either ignore it or lie and say that it says something completely different. This is what you get with a “living” Constitution. This is really not out of the ordinary for liberal legal theology; it’s pretty standard thinking. And that in and of itself is a profound statement.
Perhaps even more troubling is that this is the type of “professor” who molds the minds of young legal students. This is the type of guy Democrats would appoint to the Federal bench. And this is a case in point about why it is SO very important for conservatives to control the White House and Senate.
Silly, yes. And scary.