Fixing the Senate: A User's Guide

74 Pages Posted: 5 Mar 2021 Last revised: 16 Mar 2021

See all articles by David Froomkin

David Froomkin

Yale University

A. Michael Froomkin

University of Miami - School of Law

Date Written: March 4, 2021

Abstract

The Senate is the most undemocratic part of the U.S. Constitution – worse even than the Electoral College, although the two are related, and some versions of fixing the Senate would ameliorate the Electoral College also. Unfortunately, each state's 'equal Suffrage' in the Senate is protected by a unique Constitutional entrenchment clause. The Entrenchment Clause creates a genuine bar to reform, but that bar is not insurmountable. We argue first that the constitutional proscription on abolishing the Senate has been overstated, but that in any case there are constitutional reform proposals that range from abolishing the Senate to various degrees of disempowering it. We then argue that there are several promising reforms that could move in the direction of democratizing the Senate without constitutional amendment. In particular: admitting new states, breaking up the largest states, and a new Constitutional Convention. This paper canvases benefits, costs, effectiveness, and likely feasibility of each of these methods by which one might seek to make the Senate more representative despite the entrenchment clause. Several of the proposals create an opportunity for Supreme Court review and perhaps obstruction, raising questions about the relationship between Senate reform and Supreme Court reform.

Keywords: Senate, constitutional amendments, democracy, representation, Entrenchment Clause

Suggested Citation

Froomkin, David and Froomkin, A. Michael, Fixing the Senate: A User's Guide (March 4, 2021). University of Miami Legal Studies Research Paper No. 3797782, Available at SSRN: https://ssrn.com/abstract=3797782 or http://dx.doi.org/10.2139/ssrn.3797782

David Froomkin (Contact Author)

Yale University ( email )

New Haven, CT 06520
United States

A. Michael Froomkin

University of Miami - School of Law ( email )

P.O. Box 248087
Coral Gables, FL 33146
United States
305-284-4285 (Phone)
305-284-6506 (Fax)

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