Politics & Policy

The Senate and the Supreme Court Have Been Granted Too Much Power

(James Lawler Duggan/Reuters)
The Founders envisioned a federal government that handled only certain, enumerated tasks, but that schema got inverted after the Great Depression.

Recently, progressive public intellectuals have taken to complaining about the United States Senate. This is nothing new, admittedly. Progressives have been complaining about one thing or another in our Constitution at least since Woodrow Wilson was a professor at Princeton University. And the Senate has long been a target of leftist ire. As recently as 2009, for instance, progressives were upset about the 60-vote threshold for the filibuster, which prohibits many actions by a simple majority.

But there is a novel twist of late, at least relative to nine years ago. During the heady days of Obama’s first two years, Democrats enjoyed a very large majority in the Senate, and progressives wanted that majority to be able to do more — hence their attack on the filibuster. Now that Democrats are in the minority, progressives are complaining that the Senate as constituted is allowed to do anything at all. It is not fair, they assert, that the Senate favors small states so heavily. Surely, if the Founders had foreseen the enormous advantage that small states now enjoy, they would never have created the Senate as it is.

Let’s put aside the situational civics of the Left, ignoring the pretty obvious flip-flop from “We need to empower Senate majorities” to “Senate majorities are democratically illegitimate,” which is manifestly a product of the Democratic party’s fortunes in the upper chamber. There is nevertheless a nugget of legitimate grievance in the progressive critique, although its implications are quite different from what they reckon.

For starters, I doubt very much that delegates from the small states in attendance at the Constitutional Convention in 1787 would have been more likely to compromise on the structure of the Senate had they known that populations across the states would become more unequal, not less. The complaint of states such as New Jersey, Delaware, and Connecticut was that their interests would be ignored in a totally majoritarian system. It seems to me that if they knew how dominant California, Texas, and Florida would become, they would have fought all the harder.

Moreover, one of the best arguments against equal representation in the Senate no longer has the same force it once did. James Madison argued in 1787 that the large states would not unite against the small states because their interests were too divergent from one another — that large-state-versus-small-state distinctions did not have any impact on which factions in society were represented in Congress. But is that the case now? I’d say not really. The sparsely populated states in the Great Plains, for instance, have very distinct ethnic, cultural, economic, and even religious interests from the states on the coasts.

I will admit, however, that the Senate is poorly suited to handling the national powers that it now possesses. As constituted, the Senate reflects the priority of federalism in the design of the Constitution. Both Alexander Hamilton and Madison, for instance, wished to circumscribe sharply the authorities of the states at the Convention, but they were voted down. Instead, a power-sharing agreement was created between the federal government, which was to wield limited or enumerated powers, and the states, which would retain all other powers. The Senate reflects this ethos.

In the context of 1787, the design of the Senate made a great deal of sense. Yes, it was a parochial, state-based institution, but it was to legislate for a government that handled only certain, enumerated tasks.

Yet following the Great Depression, the constitutional schema was largely inverted. Whereas once the national government really claimed power only to do what was explicitly allowed under the Constitution, it subsequently began acting as though it was allowed to do anything that was not explicitly forbidden.

Despite this massive increase in federal power, the institutions tasked with wielding this power have remained more or less the same. While the Framers created a sensible balance between structure and power, subsequent generations have vastly expanded the latter while leaving the former the same.

No wonder our system seems so dysfunctional! What we have done since the Great Depression is analogous to trying to build a 50-story skyscraper atop a foundation meant for a two-story home. That would make no sense for an architect of buildings, so why should we expect it to work for an architect of governments?

In the case of recent progressive bellyaching about the Senate, the immediate context is the Supreme Court, which serves as an excellent example of how expansive federal power makes little sense with the limited institutions we have retained. The real battle is over Roe v. Wade, a decision in which the Supreme Court applied a constitutionally unmentioned right to privacy to states and localities, which under the Tenth Amendment are supposed to be free to manage their affairs in all matters in which the Constitution does not explicitly grant the national government power.

That was a power grab, pure and simple. We can agree with it or disagree with it, but the plain fact is that the people never signed off on such a right to privacy, diminution of state authority, or sweeping Court jurisdiction — either at the original ratifying conventions or in any subsequent debates over amendments. Rather, the Court saw a chance to expand its power, and it took it. This has happened across all three branches time and again, especially over the last 80 years, which has seen the creation of the massive federal leviathan we now live under.

So I will stipulate gladly to progressives that it makes little sense for a body constituted like the Senate to be choosing justices who wield such vast power. However, that to me is proof that the government has acquired authorities that were never originally granted to it by the people — either through the original ratification process in 1788–89 or in subsequent efforts to amend the Constitution.

For my part, I am ready to have a constitutional debate over the structure of our government — including whether equal apportionment of the Senate makes sense. But in return, I demand a constitutional debate over the powers of our government. For too long, federal authority has grown quietly, without explicit public sanction. And if we have come to a point where our institutions no longer can responsibly wield the power they have acquired, then everything should be on the table — nationalizing our institutions as well as reinforcing the constitutional limits to their power.


Jay Cost is a visiting fellow at the American Enterprise Institute and the Center for Faith and Freedom at Grove City College.


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