Jack Balkin (Yale University) has posted The Senate on SSRN. Here is the abstract:
-
This essay argues that contemporary constitutional practice with respect to the United States Senate has not been faithful to the text, history and structure of the United States Constitution. The argument is based on framework originalism, which views the Constitution as an initial framework for governance that sets politics in motion, and that must be filled out over time through constitutional construction. In implementing the Constitution, later generations must remain faithful to the basic framework, which requires fidelity to original meaning and principle but not the original expected application of the text.
Article I of the Constitution establishes the framework for the exercise of legislative power. That framework includes important structural features, including bicameralism, the division of legislative power between the House of Representatives and the Senate. The framework also establishes a principle of political equality that properly constrains political choices made by the House, the Senate, and the States, when implementing Article I. The principle of political equality requires that the apportionment of each of the two Houses of Congress be proportionate to the group or entity which the House represents. In the case of the House of Representatives, that principle required apportionment in proportion to population--reflecting the role of the House in representation of the People. In the case of the Senate, that principle required equal apportionment for each State: the original Constitution made each Senator a representative of a State, to be selected by the legislature of the State.
The 17th Amendment to the Constitution abolished the selection of Senators by state legislatures and provided for direct popular election of Senators. When this structural change is combined with the principle of political equality in Article I, the result is a requirement for reapportionment of the Senate in proportion to population. This reapportionment could be accomplished in a variety of ways--that is, by various political constructions. For example, the existing total of 100 Senators could be apportioned by creating various districts. California might be allocated 10 Senators, while Montana, Idaho, and Wyoming would share a single Senator.
-
It might be objected that reapportionment of the Senate is inconsistent with Article I, Section 3, which reads "The Senate of the United States shall be composed of two Senators from each state," but that is not the case. The United States Constitution contains a number of metonyms. A metonym is a figure of speech used in rhetoric in which a thing or concept is not called by its own name, but by the name of something intimately associated with that thing or concept. Thus, the First Amendment to the Constitution uses "Congress shall pass no law" as a metonym for a prohibition of official action by any part of the government of the United States: for example, the freedom of speech can be infringed by a judicial decision or an executive order, even though these are not literally "laws" "passed" by "Congress." Likewise, the phrase "two Senators from each state" is a metonym for "a number of Senators that is proportionate to the body that these Senators represent."
When we strip away constitutional constructions that predate the 17th Amendment and look at the original meaning and structural purposes underlying Article I, we discover the principle of political equality that requires apportionment of the Senate by population. That was the original point of Article I as modified by the 17th Amendment, and that should be its proper construction today.
