Strengthening Constitutional Self-Government

No Left Turns

Sabato revisited

Almost exactly three months ago, I posted on Larry Sabato’s (bad) ideas for revising the Constitution and holding a constitutional convention to do so. (I’m all for civic education, but that strikes me as a singularly bad means of accomplishing it.)

Today, my father-in-law waved yesterday’s Atlanta paper in front of me. It had this announcement of a series devoted to Sabato’s proposals, and this interview with Sabato.

Among other things, LS apparently doesn’t like the Senate because it’s insufficiently democratic:

One thing we’re trying to do is remedy the unfairness of the Senate. Right now you have a population differential of 70-to-1 between California and Wyoming--70-to-1! The Founders could never have conceived of this. The population differentials among the early states were significant but not nearly to this extent. This is massive. Second, and this figure always shocks people, 17 percent of the people elect 51 Senators. The founders were concerned about the "tyranny of the majority," and I am, too. But there’s another evil at the opposite extreme: the tyranny of a small minority. It seems to me that when 17 percent of the people can drive the other 83 percent, we may have a problem. And it’s worse than that. Because in fact, since it only takes 41 senators to stop everything in the Senate, 11.2 percent of the people elect 41 senators. So 11 percent of Americans are driving the other 89 percent. To me that is tyranny of a small minority.

Oh, where to begin? How about with his implicit claim that minorities shouldn’t (ever?) obstruct overwhelming majorities? Kind of makes a hash of limited government, doesn’t it?

And then there’s his argument that current Senate procedures demand a constitutional response. Wouldn’t it be easier, if it’s really a problem, to change the Senate’s rules?

His most problematical argument--the most theoretical and least based on the kind of textured and nuanced political analysis for which he’s known--is his fear that small states will obstruct the will of large states. By my reckoning, the 26 smallest states are represented in the Senate by 22 Democrats, 28 Republicans, and 2 Independents. This is hardly a prescription for a unified tyrannically-minded minority, especially when you consider that the small states include almost all of New England (trending Democratic, with some Republican Senators who are hard to distinguish from their Democratic counterparts), Hawaii (which last elected a Republican when?), and a buch of states from the South and the West that you’d think would reliably elect Republicans (but include Democrats Jeff Bingamon, Byron Dorgan, Harry Reid, and Max Baucus, as well as Republicans like Chuck Hagel).

And if you pare Sabato’s obstructionist bloc down to the 21 smallest states, you get a 20/20 partisan split, with the tie-breakers being Joe Lieberman and Bernie Sanders.

It seems to me that the small states look quite a bit like the big states. And it seems to me that Sabato’s theoretical concern is so far-fetched as to be almost ridiculous. He hasn’t convinced me that anything is broken here, or that his "fix" (more "democracy") is in keeping with the spirit of the Constitution.

Discussions - 30 Comments

Federalist #62.

In this spirit it may be remarked, that the equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty. So far the equality ought to be no less acceptable to the large than to the small States; since they are not less solicitous to guard, by every possible expedient, against an improper consolidation of the States into one simple republic.

Another advantage accruing from this ingredient in the constitution of the Senate is, the additional impediment it must prove against improper acts of legislation. No law or resolution can now be passed without the concurrence, first, of a majority of the people, and then, of a majority of the States.

Not always a message which goes down well around these parts of course. And I'm sure that the wretched Sabato desires nothing more than the "consolidation of the States into one simple republic".

ONLY two things stood between us and the path that the Europeans took, the United States Senate and the Electoral College.

And the Left knows it. And thus despises the Electoral College and the Senate.

And don't look now folks, but "the Fairness Doctrine" is coming our way fast. Of course I FULLY informed the RNC and the Republican Party of that over a year ago, REPEATEDLY by the ay. But as you've noticed, our Party seems awfully slow on the uptake.

Where there is no vision, does a people prosper, or pay.

I absolutely agree with JK, John, and Dan. But consider: the esteemed Sabato is an academic and media guru whose utterances influence perhaps hundreds of thousands. Thanks to Howard Zinn et al., perhaps only 0.1% of our young adults have ever heard of, much less read, the Federalist Papers.

Based on results, the Senate is TOO democratic.

Do we have better or worse governance than when the states were allowed to select Senators by any means they chose, such as gubernatorial or legislative appointment versus popular election?

I'm with the Roman. I much prefer how Senators used to be selected. As a result of that method, we had Senators of outstanding talent. Now? Just take a glance at the roll of the Senate. It's so bad that it drags the entire idea of republican governance into disrepute.

The original idea was for the Senate to represent the States, and the Congress to represent the People. The 17th Amendment changed all that, and the nation has been going downhill ever since. The only way to recover is to repeal the 17th Amendment, and return the selection of Senators to State governments.

Sabato is a "progressive" - i.e., a socialist. Of COURSE he wants a "proletariat of the masses" - with HIS group being the source of all information for those masses.

A difficulty we face is that the constitutional text has been insufficiently adaptable to modifications in circumstance, so the document has been functionally amended via elite consensus: politicians and judges simply ignore inconvenient provisions. An example would be the quite circumscribed delegation of legislative power to be found in Article I. Were those clauses replaced by one that conferred upon an annual conference of state legislators to compose, maintain, and amend an organic law which would specify the powers of the federal legislature, we would have a more effective constraint upon central government than is provided by those (non-functional) clauses of Article I.

For those of you who are enamored of bicameralism: was it or was it not incorporated into the document as a result of a political compromise in 1787 between advocates competing notions of the proper priciple of representation to be followed in a posited unicameral legislature? If the obstructive properties of it which are now the source of retrospective apologia are so to be so valued, why not add a third or a fourth chamber?


As regards the political culture, and for those of you so persuaded that the 'reverence' for the document is such a salutary part of our political culture, can you answer the following: does that 'reverence' actually constrain the behavior of the political class, or does it merely generate a thoughtless resistance to potentially utile reforms? Is the body of 14th Amendment jurisprudence as it now stands an indicator of reverence for anything other than the will of the judiciary and the subcultures out of which judges come? Is it at all sensible to revere the Bill of Rights, given that many of its provisions are so vague as to be useless for adjudication? (Define 'excessive bails', please).

The trouble with Dr. Sabato's ideas is that they appear more the product of an academic's idle imagination, a sort of intellectual tinker-toy, than the effort of a genuine meditation on how formal institutions might be modified to harness and channel current tendencies in political economy. Consider the problem of contemporary law, an architecture built of statutory legislation, administrative rules and regulation, and judicial opining far more promiscuous than was the case in the antebellum period: how might we restructure institutions so that more of what is implimented is community sentiment rather than the agenda of professional subcultures or aspirant mandarins? Has Dr. Sabato any ideas at all?

Why not bring on the constitutional convention?

If the obstructive properties of it which are now the source of retrospective apologia are so to be so valued, why not add a third or a fourth chamber?

I get the feeling that you think you have made a compelling point here.

Among other problems with your critique, Federalist #62 was not a "retrospective apologia". It explains the thinking of the people who wrote the Constitution, at the time they wrote it.

For those of you who are enamored of bicameralism: was it or was it not incorporated into the document as a result of a political compromise in 1787 between advocates competing notions of the proper priciple of representation to be followed in a posited unicameral legislature?

No.

Objection to Sabato #1: The title of his proposals is "revitalizing the Constitution." This literally means it is currently non-vital, dusty, musty, moribund, not working, a mere "letter" that is dead and killeth the spirit. It more generally means that our Constitution is among the many things in our lives that from time to time needs to be reformed, reworked, rejiggered, shaken-up, etc. We "revitalize" our resumes, our social life, our workout routine, and, if female, our skin.

So the spirit here is completely wrong, partaking of the headline, the advertisement, the list of to-dos in a self-help book, but NOT of the reverence Madison so correctly spoke of in Federalist #49.

Objection to Sabato #2: The first proposal concerns increasing the representation of the larger states in the Senate. The really relevant question here is not WHY but HOW. Later on, I will explain, as a Californian, as a respecter of Madison, and as a political scientist, I find the case for WHY we should want to do this rather compelling. But ALL THAT IS IRRELEVANT, since Sabato has put forth his proposal as if the following words were not in the Constitution: Article V indicates the procedure for amending the Constitution, and then says "PROVIDED THAT...NO STATE SHALL BE DEPRIVED OF ITS EQUAL SUFFRAGE IN THE SENATE."

In other words, this is the ONE non-amendable part of the Constitution. We could amend it so that the President was selected by random lottery, so that five year-olds could vote, so that the Supreme Court consisted of forty-four thousand justices, but it flat-out says we cannot eliminate equal state suffrage in the Senate.

Larry Sabato is thus advancing a plan, that if actually followed, would require us to scrap the Constitution.

Objection to Sabato #3: IF Sabato did not know that this was in the Constitution, THEN he is shown to be ignorant of our fundamental law. In that case he would not merit the term "political scientist" UNLESS knowledge about our elections, districts, etc. is fundamentally more important than knowledge of our fundamental law. This in fact might be the model of political science that Sabato represents.

Objection to Sabato #4: But if Sabato knew that the non-amendability of equal state suffrage in the Senate was in the Constitution, but decided to go ahead and have his proposal for unequal state suffrage in the Senate LEAD OFF his list of 23 proposals, then EITHER:

1) He assumes there is a practical way around the relevant clause in Article V that can amend the Constitution without violating it.

Or 2)He knows it is constitutionally impossible, but he recommends it anyway, seriously hoping the people will follow him in ignoring that clause.

Or, 3) He knows it is constitutionally impossible, and that for that very reason it is practically impossible, but the moral/egalitarian point he gets to make by pretending to seriously recommend it is so highly valuable that it outweighs any adverse consequences that occur by his doing such.

Objection to Sabato # 5: If 2) then Sabato is saying that one can ignore the text of the Constitution when one seeks to amend it. Because, if the FUNDAMENTAL PRINCIPLES OF FAIRNESS allow you ignore ONE clause concerning the rules for amending, then who is to say those same FUNDAMENTAL PRINCIPLES do not allow you to ignore ALL the rules for amending? That is, if fundamental principles of justice are your pole-star, why not CHUCK ARTICLE FIVE ENTIRE? ANYTHING that delays or prevents the more just OUTCOME from being realized violates those principles.

And it is fairly clear that this same reasoning applies to the entire Constitution, and to constutionalism in general. No purist for justice, for egalitarianism can be a constitutionalist. No dismisser or ignorer of the relevant clause of Article V can be a constitutionalist.

There were several representative schemes proposed at the constitutional convention, so the thinking of the delegates was variable on that point. You are correct, however, that bicameralism was the default mode of the state legislatures at that time.

I should note that Federalist #62 presents the arguments that Madison was willing to marshall publically in defense of the characteristics of the Senate as constituted, which is not properly identified with "the thinking of those who composed the document" (which might be as well or better reflected in the Convention's journals and private correspondence).

Now, why are two chambers optimal? Is Nebraska ill-governed in a manner that can be attributed to its unicameral legislature? And if two chambers are optimal, ought their functions be coterminous?

Now, why are two chambers optimal?

They act as a check on one another. This is even more true when they are chosen in a different fashion and represent different interests.

The model being followed here is an ancient one, going all the way back to the Roman Republic, which had an "executive" and also a Senate and a Legislature. The British Parliament followed the same bicameral structure.

In other words, they are "optimal" because they have been found to work fairly well over a long period of time.


There were several representative schemes proposed at the constitutional convention

And this is the one they chose. If you reject the suggested reasons, why do you think they settled on this particular structure?

They act as a check on one another. This is even more true when they are chosen in a different fashion and represent different interests.

I think you are suggesting that the probability of just and prudent legislation is enhanced when concurrent majorities are required. (I think whether it is or is not is dependent upon the characteristics of the actual political society).

The model being followed here is an ancient one, going all the way back to the Roman Republic, which had an "executive" and also a Senate and a Legislature.

I think the Roman Republic had four conciliar bodies with legislative functions.

The British Parliament followed the same bicameral structure.

Our legislatures are descended from medieval representative assemblies. However, these medieval assemblies were of variable structure. Some were tricameral and organized into caucuses of clergy, nobility, and burgesses. Britain remains (at least nominally) a society of orders. A nobility scarcely existed in the American colonies. (Please note also that the functions of the House of Lords and the House of Commons are not coterminous and their powers not equal).

In other words, they are "optimal" because they have been found to work fairly well over a long period of time.

I think you have confused optimality with functionality. And when something 'works' it is working toward some end. (Which?)


And this is the one they chose. If you reject the suggested reasons, why do you think they settled on this particular structure?

It was unseasonably hot in Philadelphia that year and they wanted to git.

Personally, I would not be terribly concerned with why the Constitutional Convention did what it did unless I thought they possessed some special insight now lost. As some and perhaps most were liberally educated in ways that are now rare, I expect their meditations on questions metaphysical and ethical would far exceed in sophistication what any in the federal legislature could accomplish today. That having been said, those same vulgar politicians can inspect two hundred years of experience with the 1787 handiwork, inspect the operation of competing models over that same period of time; and survey contemporary economic, social, and demographic conditions and consider the possible implications for institutional form.

Here in New York, we retain a bicameral legislature. Both chambers are directly elected; both are elected for two year terms; the members of both are elected by plurality vote from equipopulous single-member districts. It would seem to make little sense, until you account for inertia and vested interests.


The districts for each chamber are gerrymandered differently. For decades the Democrats have controlled the lower house and the Republicans the upper house. The net effect of this (when conjoined to the gubernatorial veto) had been is that the (perpetually late) budget and salient legislation are negotiated between the Governor, the Speaker of of the Assembly, and the Temporary President of the Senate. A Rule of Three is more-or-less what prevails.

At the time of the Revolution, perhaps a tenth of the population in New York state resided in the urban settlement at the tip of Manhattan. As of now, 60% of the state's population resides in that fragment of Metropolitan New York that is within state boundaries. A similar percentage of New Jersey's population is to be found in the urban glob in the northeast corner of the state (with another 10% or so residing in portions of the state that are an annex to Metropolitan Philadelphia. I have nothing against New York City, but it is someplace else, quite unlike the provincial cities, the shuffle of small towns, and the large expanse of countryside that is Upstate. Similarly, the bulk of the territory of New Jersey is occupied by the mess of small towns and small cities which collectively make up about a quarter of its population. I suspect a periodic rectification of frontiers between the states would enance the capacity of communities to live according to preferred norms. Significant changes in state boundaries have not taken place since 1820. I cannot say as I believe that it is because the practice of fixed boundaries 'works'.


I would also refer you to the contemporaneous observations of Hendrick Hertzberg and Michael Kinsley on the operations of Congress and the President during the Reagan Administration. Neither man was enamored of the policies the Administration persued. Hertzberg offered that all the checking-and-balancing going on made elections seem an exercise in futility; Kinsley's point was that had the Reagan Administration gotten more-or-less the legislation it preferred, the injury to economic efficiency and social equality might have been less severe than that exacted by the patchwork of compromises the political parties agreed upon. I suspect both men were right.

Objection to Sabato #6: If 1) is Sabato’s position, the bottom line is that there is no way around the non-amendability of equal senatorial state suffrage clause (henceforth: “the non-amendability clause”).

If Sabato cites some scholars in his book-length treatment, who speculate that a convention or some other procedure could override the clause, well, we’ll see what their arguments are, but all their expertise will be up against the words "PROVIDED THAT...NO STATE, WITHOUT ITS CONSENT, SHALL BE DEPRIVED OF ITS EQUAL SUFFRAGE IN THE SENATE” whose meaning is inescapable, and whose original intent will not be denied by any historian.

Of course, if ALL of the TWENTY-FIVE states who in Sabato’s scheme do not receive an extra senator FREELY CONSENT to his scheme, then there would be no Constitutional issue whatsoever. But Sabato is too much of a political scientist not to know that such a noble self-sacrifice by EACH of those states, even in an a convention setting blessed with as many “angels of our better nature” present as can be, is utterly impossible. All it takes is for one of those state’s internal votes to be 51% against the idea, and the Constitution requires that state to also get 3 senators, which would enrage the twenty-five self-sacrificing states—so why would any of them vote this way in the first place, even if they had a self-sacrificing national civic spirit that we can hardly expect of ONE small state’s population/representatives?

It does seem that large states could opt to split and form new states, which would give their populations more Senators. But this is not what Sabato advocates. And it has several difficulties. First, what a large state can do, a small state can also, if those senatorial votes are all-so-valuable. Second, splitting state-government bureacracies, particularly in an era of big state-governments, would be incredibly expensive and disruptive for the citizens involved. Perhaps so expensive as to be utterly prohibitive. Third, as stipulated in Art. IV, sect. 3, one has to get Congressional permission to split states. Why would the small states’ senators give permission? Fourth, even if permission is given and the split goes through, what is to stop a dissenting small-state from bringing a suit to the Supreme Court under the claim that they have been de facto deprived of their equal suffrage, that the manifest intent of the split was to so deprive them? And how should the Court rule in such a case?

Objection to Sabato #7: So there is no way around the non-amendability clause. Except one. One could say that, the Constitutional Convention Sabato is calling for is not simply, as Art. V puts it, “for proposing Amendments,” but is in fact re-instituting the old Constitution, so that it may cut out the non-amendability clause if it so desires, since such a Convention would be free in theory to institute an entirely new constitution. Such a Convention would be a return to the formation of the social compact, a moment when the people, as it says in the Declaration, “alter” the “Form of Government” and “institute new Government, laying its foundation and organizing its powers in such form as to them shall seem most likely to effect their Safety and Happiness.” The people could choose to “alter” this one wee clause of the constitution, and then use the remaining familiar rules for amendment for the rest of the changes. By why, if such a pregnant and solemn moment of re-founding has been arrived at, should the people not “alter” all sorts of aspects of the Form of Government? Sabato has given them TWENTY-THREE things that are needed to re-vitalize our Constitution, and so why not ensure that all of them get done by ignoring the normal rules for amendment, and thus getting past the onerous super-majorities otherwise needed?

That is, for Sabato to advocate this last way around the non-amendability clause essentially means that he is the man described in 2) (in objection #5 above). If Sabato tries to fudge things and say the Convention he envisions would be perfectly within its rights to excise the non-amendability clause but otherwise would proceed by existing amending rules, he MUST be called on it. A United States Constitutional Convention is either 100% an Article V-following one, or it is 100% a fundamental, social-compact one. Constitutional theory knows no other possibility.

Sabato is a very good elections analyst and a moderate voice in academe on many matters, but if he advocates this, he has placed himself in RADICAL opposition to the existing Constitution and its legitimacy, and he unwittingly seeks to crack open the Constitutional door for REVOLUTIONARY proposals that would not stoop to fiddling with a single clause, proposals that would (assuming the votes were there for a Convention in the first place) either dangerously divide the nation or lead it to a truly new form of government. And if we REFOUND the government in, say, 2012, why not also in 2022, also in 2024, and so on…?

Objection to Sabato #9: If 3) is Sabato's position, the questions become the following: a) What is the value of the moral/egalitarian point he gets to make by pretending to seriously recommend his first propsoal? b) What are the likely adverse consequences that occur by his pretending to seriously recommend it? c) Does b)outweigh a)?

a) The first basic measure of the moral/egalitarian point is whether it is true. Joe of course has some fine arguments arrayed against it above. My gut sense, however, is that they do not overcome it. One can read this fine book by Forrest McDonald to see why the equal suffrage was a compromise forced on the big states by the smaller states in the MOST contentious and likely-to-kill-the-whole-deal debate during the Constitutional Convention. One can also read this helpful book by Lee and Oppenheimer to see why Madison was deeply opposed to the equal-suffrage compromise as grossly unfair and non-republican, despite the happy gloss he put upon things in Federalist #62. Madison and others knew it was either a Constitution with the equal suffrage non-amendability clause, or no Constitution. They chose wisely. The bulk of Lee and Oppenheimer's book demonstrates MYRIADS of ways, besides the most obvious ones, in which the equal suffrage in the Senate is unfair. It simply is unfair. Simply is non-republican. Simply was regarded as such by the best of the Founders. And to say that any Founder serious about Federalism would have been hunky-dory with 17% of the population voting for 51% of the Senate is FALSE. No, this, along with the protection of slavery, was the great stinking injustice of the Constitution that good and wise men were forced to accept. And what is worse, the injustice of it can grow indefinitely, so long as CA, NY, TX,and the like outpace lonely Wyoming. Fifty years from now, future Sabatos can produce even more shocking numbers than they can now. Future demagogues can frame it in terms of whites being favored over browns and blacks, of rural and exurban America being favored over urban America, of conservatives being favored over liberals.

So I think the injustice of the equal suffrage is genuine, although I welcome the efforts of Knippenberg and others to show otherwise. Sabato has a true point to make. What, however, is the value of that truth? Is it a truth that it benefits the nation to focus upon? Normally, this is an odd question to ask. But remember, the entire premise of this objection is that Sabato KNOWS that his proposal to increase large-state senatorial suffrage is unconstitutional, and that for practical or patriotic reasons he thus doesn't really mean to push for it. So is a non-reformable (within the Constituional rules) injustice one that it benefits the nation to focus on? Particularly when the manner of focsuing PRETENDS that it must, by some rule, be reformable? Particularly when it is not a minor injustice? What does Sabato hope to accomplish here? Does hope that by inducing guilty feelings in small states and constitutional conservatives about this non-reformable injustice, he will make them more likely to go with his other reforms?

Perhaps, many will say, he hopes to "start a conversation," and through the means of controversy, spark an interest in the Constitution. It's all for CIVIC EDUCATION! I'll later show how weak such a defense is.

Let us turn to b). As should already be clear, the adverse consequences of making this point in this manner are extreme. Radicals might take Sabato at his word, and it is not impossible that at some point in our future they might have the votes to enforce it, to call for that back-to-ground-zero convention that getting rid of the non-amendability clause will require. True, it's quite unlikely. But even so, why give idealistic left-leaning Americans yet another reason, supported by "America's most-quoted political scientist," for regarding our regime as saddled with a hopeless and serious injustice, a blot on its fudnamental democratic legitmacy? I am not saying Sabato endorse such reasoning; I am saying he is foolish if he thinks such reasoning won't occur, and IN DIRECT PROPORTION to which this issue becomes a common topic of political discussion. It is an adverse consequence to get young people angry about a flaw in our system that cannot be rectified without violating constitutionalism. And the worse the flaw is, the more adverse the consequence of calling attention to it. And again, Sabato speaks AS IF the flaw can be easily fixed, with just a little American ingenuinty and idealism. He thus at best SETS HIS AUDIENCE UP FOR GRAVE DISSAPPOINTMENT, not with HIM, but WITH THEIR OWN REGIME. And at worst, he encourages them to say, "Constitutional, Schmonsitutional, we're going to enact what's just!!!"

So, b) clearly outweighs a). Sabato should apologize for making his first proposal. To talk in the manner of Sabato about our fundamental law is like talking about the crimes of British Imperialism in the summer of 1940. Yes, those crimes occured. Yes, our Constituion has this serious flaw. What you say is TRUE. But is what you say WISE? Does it see the BIGGER truth?

I think you are suggesting that the probability of just and prudent legislation is enhanced when concurrent majorities are required.

I thought I said this rather explicitly. But as long as the idea was conveyed ...

I think you have confused optimality with functionality.

I think you are under the impression that political systems can be designed like toasters or automobles.

And when something 'works' it is working toward some end. (Which?)

Umm, the end of maximizing peace and individual freedom within a system in which all can feel they are stakeholders? While at the same time placing some restrictions on the known problems of direct democracy?

It was unseasonably hot in Philadelphia that year and they wanted to git.

Well, I can believe what the people who wrote the Constitition said, or I can believe some anonymous blog commenter. Which one do you think I'll pick?


Here in New York, we retain a bicameral legislature. Both chambers are directly elected; both are elected for two year terms; the members of both are elected by plurality vote from equipopulous single-member districts

If you consult the history books you will find that it was not always thus. So you don't really "retain" what was. New York has implemented what Sabato desires. As you indicate, one consequence of doing so is to call into question the very existence of a second chamber, if both are to be identical to each other in all respects.

With respect to Hertzberg, Kinsley, and the Reagan administration, you've left the discussion of the bicameral legislature behind and are addressing the separation of powers between the executive and legislature. And if I'm reading you correctly, you find even that division of powers to be troublesome. Would you prefer that we elect a Caesar?

Carl Scott:

I attended a lecture by Gottfried Dietze 23 years ago in which he asked the audience to name a constitutional provision that could not be amended. Out from the audience came the replay, "equal representation in the Senate". Yes, he replied, it was the Federal principle that was a permanent feature; however, someone had explained to him how it could it be circumvented: you pass an amendment excising the language prohibiting amendment, and then pass another amendment altering or abolishing the Senate. "I told him I thought that would be a dirty trick." (Uttered in Dietze's accent, the line got quite a laugh).

My memory may be failing me, but I do not think that it is a requirement that the two chambers be perpetually of equal power or concern themselves with the same subject matter, and there are modest differences in function written into the document (on the initiation of tax and appropriation bills, on the vetting of appointments, on the advice-and-consent to treaties, etc). We might, in keeping with modifications in how law is generated, vest the composition of statutory legislation in one chamber and the vetting of administrative regulations in the other.

I think you are under the impression that political systems can be designed like toasters or automobles.

The metaphor had not occurred to me. That aside, you say a unicameral legislature is undesirable and offer no evaluation of a tricameral legislature. I take that to mean that you find a bicameral legislature optimal. However, your elaboration on why you preferred such was that it had a history of working. The Rochester City Council works after a fashion. It is not a bicameral body.


Umm, the end of maximizing peace and individual freedom within a system in which all can feel they are stakeholders? While at the same time placing some restrictions on the known problems of direct democracy?

I am somewhat perplexed by the reference to direct democracy. That is characteristic of local government in Switzerland but is quite unusual elsewhere. (Heretofore, we have been discussing representative bodies).

You are making a point about social relations that I have a tentative opinion about but have seen precious little observational research on: that the formal characteristics of the legislature function the way you posit they do. It may be true, false, true given certain contingencies, or true but not to a degree that justifies the costs of doing business that way.

For my own part, I would offer that individual freedom is not something you maximize, but something that should be present in a quantity that serves justice or the common good.

I suspect you are right that a certain sort of bicameralism will expand the pool of individuals and communal groups who understand themselves as stakeholders. However, by no means all will regard themselves as such. I think Mississippi had a bicameral legislature in 1930. (Also, providing a voice to minority viewpoints through an electoral system of proportional representation might also expand the pool of stakeholders).

One thing I am certain of, is that the resolution of these questions is to come from an empirical comparison of working political societies, not from consulting The Federalist Papers.

Well, I can believe what the people who wrote the Constitition said, or I can believe some anonymous blog commenter. Which one do you think I'll pick?

It was my attempt at humor, John, believe it or not.


New York has implemented what Sabato desires. As you indicate, one consequence of doing so is to call into question the very existence of a second chamber, if both are to be identical to each other in all respects.

Actually, the Warren Court's reapportionment decisions handed down ca. 1963 required a modification of how representation was distributed. IIRC, the apportionment method used for both chambers up to 1963 required that the representation of counties be correllated with their population; the Warren Court required strictly equipopulous districts, county boundaries be damned. The current state constitution dates from 1846 and I am not sure that the apportionment of the state Senate has ever in that time resembled that of the U.S. Senate.

My complaint, and it is a commonplace in New York, is the degree to which our legislators function as extras in the drama that matters: the negotiation between Messrs. Spitzer, Silver, and Bruno. Bicameralism is an architectural feature which sustains this.

With respect to Hertzberg, Kinsley, and the Reagan administration, you've left the discussion of the bicameral legislature behind and are addressing the separation of powers between the executive and legislature.

I am addressing the separation of powers, but was not leaving behind a discussion of a problem within bicameralism, as we had a split legislature for most of those years. Among other things, Congress was scarcely capable of producing appropriations bills and catch-all continuing resolutions were required to fund the government. I have long since forgotten most of the transient disputes which animated their commentary. I merely note that both were fitfully marshalling arguments that the institutional set up was ultimately injurious to the interests of a broad array of parties (if not all parties).

And if I'm reading you correctly, you find even that division of powers to be troublesome. Would you prefer that we elect a Caesar?.

No. Separation of powers is modal in the Americas, but in most of the rest of the world parliamentary systems tend to prevail: the ministry retains office on the sufferance of the legislature and the head of state has no utile veto power over legislation. I should also note that the town I grew up in had a unicameral municipal council who appointed a city manager they could dismiss at will. I do not remember that any of the five city managers whom I can recall functioned tyrannically toward anyone but their families, their department heads, or their office staff.

One thing I am certain of, is that the resolution of these questions is to come from an empirical comparison of working political societies, not from consulting The Federalist Papers.

Those are your questions, perhaps. They were not the one I was addressing. Sabato seems confused as to how and why we even have a Senate in which seats are not alloted on the basis of population. The answer to that question, as I say, can be found in the relevant historical doucuments, of which the Federalist papers are a part.


The metaphor had not occurred to me.

It should have. It is not possible to devise a political system using the same processes as used in engineering. The only way to tell what works is by looking at what has worked. Arguably our system no longer works well. I'm sympathetic to such an argument, if that is what you are making

Among other things, Congress was scarcely capable of producing appropriations bills and catch-all continuing resolutions were required to fund the government.

True, but I see no sign that this was related to the existence of the bicameral legislature. It occured/occurs because the Senate allows a minority to block passage of bills. Another cause is excessive partisanship.

the Warren Court required strictly equipopulous districts

I'd say that the real object of your concern ought to be the Warren Court then, not the broken legislatures resulting from its edicts.

in most of the rest of the world parliamentary systems tend to prevail

True, but in most of these parliamentry systems a bicameral legislature exists. There are well known pros and cons to the different systems (US vs UK), but they share a two chambered legislative body.

True, but I see no sign that this was related to the existence of the bicameral legislature. It occured/occurs because the Senate allows a minority to block passage of bills. Another cause is excessive partisanship.

I think you have been arguing that a virtue of bicameralism is that it impedes some legislation. You wish to qualify that by saying it did not have the effect of impeding any appropriations bills for a period of eight years.

I'd say that the real object of your concern ought to be the Warren Court then, not the broken legislatures resulting from its edicts.

Again, if I recall correctly, representation in the state Senate was (up to 1963) apportioned in the same manner as that in the state Assembly. The only difference was that representative in the one body were apportioned among counties and in the other among specified multi-county units. The effect of the Warren Court decisions was to make a modest addition (around 15%) to the portion accorded to metropolitan counties in both bodies and a considerable reduction in the portion (~40%) accorded to non-metropolitan counties. I have a dear friend who was on the staff of the legislature in 1961-63. He will assure you it was not unbroken at that time.

in most of these parliamentry systems a bicameral legislature exists. There are well known pros and cons to the different systems (US vs UK), but they share a two chambered legislative body.

The House of Lords can delay legislation, but its approval is not ultimately required. The curio about our federal legislature (which I suspect is quite unusual elsewhere) is that (on balance) the upper house is accorded more formal authority (and is certainly the more influential).

Those are your questions, perhaps.

Your hobby horses are not mine, 'tis true.

I think you have been arguing that a virtue of bicameralism is that it impedes some legislation.

Yes.

You wish to qualify that by saying it did not have the effect of impeding any appropriations bills for a period of eight years.

It is not a qualification. And I did not claim that "it did not have the effect of impeding any appropriations bills for a period of eight years." It is a fact that the recently stalled appropriations bills were not stalled because of the existence of a bicameral legislature. This occured because of specific rules in the Senate requiring a super-majority. But don't let reality intrude on your abstract philosophizing.

We can certainly imagine a scenario in which bills are blocked because the Senate is in the hands of one faction and the House in another. But that is not the case in the instance you brought up.


Your hobby horses are not mine, 'tis true.

That may be the case, I don't know. But I have attemped to confine my remarks to the historical origins of Congress, which is the topic of the thread. Unlike you, I have kept my hobby horses out of this.

The House of Lords can delay legislation, but its approval is not ultimately required

As I'm sure you know, this was not the case at the time of the American Revolution and the writing of the US Constitution. So unless you are saying that we need to modify our system of government to reflect changes made by the British, I don't see your point. And if you are saying that, you're being silly.

It is a fact that the recently stalled appropriations bills were not stalled because of the existence of a bicameral legislature. This occured because of specific rules in the Senate requiring a super-majority. But don't let reality intrude on your abstract philosophizing.

It is not a fact. You are arguing that the capacity of the Senate to block legislation (it being controlled by the othe party) had no effect and that the capacity of the Senate minority to do so did. The requirement of concurrent majorities is functionally similar to the requirement of supermajorities.


hat may be the case, I don't know. But I have attemped to confine my remarks to the historical origins of Congress, which is the topic of the thread. Unlike you, I have kept my hobby horses out of this.

The original subject of the thread was Dr. Sabato's proposals for modifying the constitution.

As I'm sure you know, this was not the case at the time of the American Revolution and the writing of the US Constitution. So unless you are saying that we need to modify our system of government to reflect changes made by the British, I don't see your point. And if you are saying that, you're being silly.

I do not regard it as silly to make comparative assessments of how political institutions function in different contexts (does this constitute 'abstract philosophizing' as well?). You contended that bicameralism 'works' on the basis of historical experience; I point out that the American variant thereof is atypical in the sort of parliamentary systems that are the norm outside the Americas. That the House of Lords could at one time block legislation is irrelevant. At the time the American constitution was adopted, the House of Commons was hideously malapportioned, shot through with rotten boroughs and pocket boroughs. Edmund Burke wrote apologias for that; you can read them when you are tired of The Federalist.

I point out that the American variant thereof is atypical in the sort of parliamentary systems that are the norm outside the Americas.

If you are claiming that, then you are speaking in ignorance. I suggest that you do a little research on the systems used in other democratic countries.


That the House of Lords could at one time block legislation is irrelevant.

Sez you.

You contended that bicameralism 'works' on the basis of historical experience;

And you have not shown differently. Or even attempted to.

The requirement of concurrent majorities is functionally similar to the requirement of supermajorities.

The requirement of concurrent majorities is met when one party has a majority in both chambers. The requirment for a supermajority is not neccessarily met in that situation. It is an additional and higher hurdle to cross. So they are clearly not "functionally" similar.

If you want to argue for an end to the filibuster, go ahead. I'll probably agree with you. But abolishing the House won't change that.

does this constitute 'abstract philosophizing'

Unless you clearly identify a problem with current Congress, and propose a sensible remedy, then yes, it does. Remarkably, you have written a great many words here without saying what troubles you about the way Congress is organized. If we abolished the Senate tomorrow, what benefits would follow?

If you are claiming that, then you are speaking in ignorance. I suggest that you do a little research on the systems used in other democratic countries.

John, among parliamentary states, the upper house of the legislature is either non-existent (as it is in New Zealand, Israel, all of the Scandinavian states, Portugal, several Eastern European republics, &c.); can be over-ruled by the lower house through a supermajority vote, repeated votes in multiple sessions, or a simple repetition of the original vote (Great Britain, Ireland, Japan, Poland, Spain, &c.); passes only on restricted categories of legislation (Germany); or lacks the discretion to initiate or amend legislation (the Netherlands). Upper houses with co-equal powers of legislation (e.g. Australia) are atypical. The executive in parliamentary systems holds office at the suffrance of the lower house and only the lower house of the legislature. There are few if any exceptions.


Sez you.

Yeah.

And you have not shown differently. Or even attempted to...Unless you clearly identify a problem with current Congress,

Take your fingers out of your ears.


Ciao, John. My sock drawer awaits.

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