The only possible way to reform the U.S. Senate

The United States Constitution specifies that no state can be involuntarily deprived of equal representation in the Senate, which I take to mean that any state that refused to ratify a constitutional amendment establishing proportional Senate representation would be entitled to as many senators as the most populous state. Some have proposed that we amend the Constitution to remove that stipulation, but doing so may give rise to the legal paradox of a constitional amendment that is itself unconstitutional.

One idea that is not given adequate attention is that there is a number of senators that is at once equal for all states and proportional to their population: i.e., zero. Reducing each state’s number of senators to zero would hence fulfill the requirements of the above stipulation while satisfying the demand for more democratic representation. In order to bring about this outcome without causing constitional deadlocks, all the duties and powers of the Senate would first need to be either abolished (as in its role in creating legislation) or transfered to another branch of government (treaties, presidential appointments, etc.). Once that was done, emptying the chamber of all members would seem only appropriate.

Particularly interesting in this connection would be the position of the Vice President, whose sole specified constitutional duty is to preside over the Senate and cast tie-breaking votes when necessary. Given that the Senate would now be a purely notional legislative body with no members, powers, or duties, the Vice President would become the most deeply Agambenian political figure in history — a true embodiment of inoperativity. What’s more, the Vice President is not a member of the Senate and hence is not allowed to introduce legislation, only to vote in the case of a tie. Hence the Vice President would be radically unable to do anything other than to convene and adjourn meetings of the null set of all senators, which does not include the Vice President him or herself.

This is a proposal that I could get behind — indeed, enthusiastically. If we’re going to have a nonsensical system of government, let’s at least push the ontological boundaries.

19 Responses to “The only possible way to reform the U.S. Senate”

  1. Minivet Says:

    I like it. Though that would mean no legislative check on treaties or appointments – there would be a 0-0 tie which the VP would break in favor of the executive. I suppose if this happens by amendment, it could give the House the same concurrent power, which would equate to transferring the power.

    I assume it was known in the original post, if left unstated, that just as no Parliament can bind its successor, no constituent assembly should be able to either; the perpetual-Senate clause is pretty clearly contrary to the basic republican principles of the Constitution, and this principle would be ably and satisfactorily reflected by an amendment that got rid of the restriction.

  2. Brad DeLong Says:

    Nonsense! If each state has zero senators, the Senate still has one member: the Vice President, who presides and votes when the vote is tied!

  3. Minivet (@Minivet) Says:

    Nope. Under the Constitution, the Vice President is not a member of the Senate; he’s simply the Vice President, he just also happens to have the power to preside over and tiebreak it.

  4. chris y Says:

    But while not being a member of the Senate, he will nevertheless find that if the Senate has zero members he will be obliged to cast his tiebreaking vote on every issue, as all votes will necessarily be tied 0-0.

  5. Minivet (@Minivet) Says:

    Yes, but as per the OP, with her/him unable to introduce bills, there would be nothing to tiebreak on except things brought up automatically under the Constitution: House-passed bills to concur in, appointments, treaties, impeachments.

    Actually, it occurs to me now the amendment would also need to state that the House can by itself override a presidential veto, since otherwise no veto could be overridden.

  6. Adam Kotsko Says:

    My intention was to transfer all duties and powers to other bodies — my parenthetical listing was meant to be illustrative, not exhaustive.

  7. Adam Kotsko Says:

    Hence no legislation of any kind would ever arrive at the Senate or require a tie-breaking vote.

  8. ben Says:

    “Some have proposed that we amend the Constitution to remove that stipulation, but doing so may give rise to the legal paradox of a constitional amendment that is itself unconstitutional.”

    You mentioned this possibility on twitter but I don’t really see why it would be unconstitutional. Yes, you’d be amending the constitution to remove a barrier to doing something that the un-amended constitution bars, but … why would that be unconstitutional? (And why wouldn’t similar logic have applied to the 21st amendment?)

  9. ben Says:

    Actually, it occurs to me that if you transfer all the duties and powers of the Senate to other bodies, you can keep all the Senators you like; they just wouldn’t have anything to do.

  10. ben Says:

    It would sort of be like having a symbolic monarchy with no official governmental function. A symbolic oligarchy.

  11. Eric Says:

    Apparently when Gödel was studying for his citizenship exam he found a loophole in the constitution allowing the president to arbitrarily elect senators under certain circumstances. The Tea Party wouldn’t like it, but they don’t like democracy anyway, so…

  12. Daniel Lindquist Says:

    I’ve seen it claimed that Godel found a loophole of some sort while preparing for his citizenship test a number of times; I’ve never seen anything actually say what he supposedly found.

  13. RJL Says:

    I think you’re underestimating the role of the Vice President. From all the movies I’ve seen, he also bears the heavy responsibility of protecting the new set of nuclear launch codes that are issued when the President is taken hostage.

  14. Eric Says:

    I think I saw that in the biographical note on Gödel in Stephen Hawking’s God Created the Integers.

  15. Robert B Says:

    I read this anecdote about Einstein attempting to prevent Godel disrupting his citizenship proceedings with the claim to have discovered “a logical-legal possibility by which the U.S.A. could be transformed into a dictatorship” in Solomon Feferman’s biographical essay at the start of vol. 1 of Godel’s Collected Works. A slightly shorter retelling by Hao Wang is quoted online – http://www.math.mcgill.ca/rags/JAC/124/constitution.html . Both Feferman and Wang cite Heinz Zemanek’s article in a German periodical as their source; it seems unlikely anyone recorded the content of Godel’s argument.

  16. Stephen Frug Says:

    I don’t think this solution would pass muster (alas). The constitution requires “equal representation”: zero for each state would be *equal*, but would not be *representation*.

    I still like my “turn the Senate into the House of Lords”, i.e. mostly powerless, rubber-stamp body: make all Senate-only duties House-only instead; require supermajorities of the Senate to *reject* legislation by the House (i.e. w/o supermajority rejection any law is automatically passed), etc. Wouldn’t *literally* abolish the Senate, but would come as close as we constitutionally can, I think.

  17. john casey Says:

    Eh. Why screw around. Call a new constitutional convention, not with existing constitutional procedures, but ignoring them. Write a good overall replacement. Call for a majority vote national referendum to ratify, and bob’s yr uncle.

  18. Joe Smith Says:

    Nope. With the House subject to very extreme gerrymandering (as we have now) all you are doing is instituting a system of one-party rule which will be very difficult to break.

  19. Mañuel Libor Says:

    Very smart—I am using that phrase in its usual sense of ‘I thought of this too’ (‘The New Senate shall be elected….)

    I’d actually be more interested in smaller Sub-House districts whose representatives would dicker over how puppet House members would vote.


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