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Law & the Courts

On Eric Orts’s Farcical Senate-Abolition Fantasy

Professor Eric Orts (INSEAD via YouTube)

I’ve often joked that one of the hard-and-fast rules of contemporary American journalism is that there will always be a professor somewhere who is willing to beclown himself in order to pretend in public that the most recent progressive infatuation isn’t flagrantly unconstitutional. Once you notice this rule, you can’t stop seeing it. After a while, you’ll even learn to anticipate the turn: “Traditionally, ‘Term of four Years’ has been understood to mean term of four years,” the piece you’re reading will explain, “but Professor Grunton Rabitini at Oregon’s Soiled Woods College argues that actually . . .”

Ah, there it is.

Such a turn was just made in our ongoing debate over the Senate. In The Atlantic today, Eric W. Orts, of Wharton writes that we should restructure the Senate by allocating “one seat to each state automatically to preserve federalism, but apportion the rest based on population,” and then insists with a straight face that this would be entirely legal — and even easy:

The obvious reply is, “This is impossible! The Constitution plainly says that each state gets two senators. There’s even a provision in the Constitution that says this rule cannot be amended.” Indeed, Article V, in describing the amendment process, stipulates that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”

That is the “obvious reply,” yes. For an obvious reason: It’s obviously correct. And yet:

This seems like a showstopper, and some scholars say it’s “unthinkable” that the one-state, two-senators rule can ever be changed. 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.

We’ll get to the argument Orts makes in a moment. But, before we do, we might take note of his framing, which does not help his case either in the general or in the specific realms. “Our Constitution is more malleable than many imagine” is the sort of thing that people plop in to their overture when they’re teeing themselves up to argue that our Constitution should, in fact, be ignored. It is a euphemism, rather than a framework, and it should be recognized as such. Ort’s more specific example, meanwhile, is completely, embarrassingly backward. The argument made against the Affordable Care Act’s constitutionality was not that the Constitution’s meaning is malleable, but that it is extremely rigid. One may disagree with that argument, as four members of the Supreme Court clearly did (John Roberts ultimately cast a vote to uphold the law, but joined a majority of five in declaring the mandate illegal on commerce-clause grounds). And yet it is the height of disingenuousness to portray those who blew open the commerce clause as the guardians of tradition and those who wished to keep it narrow as audacious Jacobins. It is certainly true that America has played host to some commerce-clause revolutionaries over the last nine decades, but they did not sound like Justices Clarence Thomas, Antonin Scalia, Anthony Kennedy, John Roberts, and Samuel Alito. They sounded like Professor Orts.

All this, however, is mere prologue to what may be the silliest legal argument I’ve read in the last decade: That Americans can absolutely restructure the Senate in violation of the Constitution’s text, providing they do it via legislation:

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.

Never in the history of the English language has the word “arguably” done as much work to support the sentences around it. And never, ever has it been so cruelly exposed to ridicule. On Orts’s rationale, Congress could amend any part of the Constitution by legislation. Want to abolish the First Amendment? Just pass the repeal through Congress on a simple majority vote. Easy! That the various branches of government are formed by the Constitution itself — and, by extension, that they cannot amend their own structure without that Constitution being amended — is the most elementary rule in all of American law. It cannot be undone by wishful thinking. Indeed, if anything, the Senate’s structure is the most permanent variable in the entire U.S. Constitution, given that it not only enjoys the same protection as everything else, but has an extra layer on top that ensures that any alteration be made with the consent of those directly affected. For Orts to treat the most heavily guarded item within the document as if it were the most easily circumvented is nothing less than extraordinary, and suggests to me that he believes his audience is stupid.

Orts goes on to add another preposterous argument on top of the first:

Second, the states, through the various voting-rights amendments — the Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth — have already given their “consent” by directing Congress to adopt legislation to protect equal voting rights, and this delegated power explicitly applies to “the United States” as well as the states. The Senate Reform Act would simply shift seats according to population. No state or its citizens would lose the franchise.

Even for those of us who are accustomed to learning in awe about the many innovative policies the architects of the Reconstruction Amendments intended secretly to mandate in the future, this one is a doozy. Insofar as it can be followed, Orts’s case here is that (a) the Constitution protects equal voting rights, (b) that, in his view, the Senate does not protect equal voting rights, so (c) the Constitution mandates that the Senate be altered — presumably via the “arguable” legislative method outlined above. Historically, legally, and linguistically, this approach is bizarre: If the framers of the “Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth” amendments had wanted to abolish or amend the Senate, they would have done so — or, rather, they wouldn’t have done so, because their amendments would have failed spectacularly at the first hurdle. Worse still, it is extremely dangerous, for if Orts’s approach were to be indulged, we would quickly move so far beyond both the security of both stare decisis and plain language as to invite endless, untrammeled chaos. Why? Well, because one can play his game with anything. First, you find a part of the Constitution that guarantees a favored end — say, “establish justice,” “promote general welfare,” or guarantee “freedom of the press”; then you contend that this end is incompatible with any other provision you happen not to like; and, finally, you explain that the provision you dislike is itself unconstitutional. At best, this method represents cheap sophistry. At worst, it represents anarchy. Again: “Our Constitution is more malleable than many imagine” is a euphemism for “We must ignore the law as it is written.”

But we must not, of course. Rather, we must ignore Orts, and we must push back against people who believe their job is to rewrite history and to misinform on a grand scale. I can see why certain professors feel the need to do this: Absurd as his cases always are, my proverbial Grunton Rabitini of Soiled Woods College has his words repeated widely by the unprincipled and the uninformed. But I cannot see why The Atlantic needs to publish it. We have a civics problem already in this country. Professor Orts and his editors just made it that little bit worse.

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