Fixing the Senate

University of Miami Legal Studies Research Paper No. 3797782

80 Pages Posted: 5 Mar 2021 Last revised: 25 Jan 2022

See all articles by David Froomkin

David Froomkin

Yale University

A. Michael Froomkin

University of Miami - School of Law; Yale University - Yale Information Society Project

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 first argue that the constitutional proscription on reforming the Senate has been overstated, identifying a range of constitutional reform options that would be permissible despite the Entrenchment Clause. Several of these approaches circumvent the restriction imposed by the Entrenchment Clause by reforming the Senate in ways that do not alter the equal representation of states: disempowering the Senate, abolishing the Senate entirely, or adding at-large nationally elected senators. A different approach involves repealing the Entrenchment Clause and then either passing a second amendment reapportioning the Senate or asking courts to democratize it under the Equal Protection Clause. We then canvass reforms that could move in the direction of democratizing the Senate without constitutional amendment, including admitting new states, creating virtual states for indigenous peoples, breaking up the largest states, and (although we do not advocate it) a new Constitutional Convention. Throughout, we discuss the relative merits and difficulties of each of these options. Reformers and scholars need a clear understanding of the relevant legal frameworks to develop effective strategies. While we recognize that none of these options are easy, we conclude that action to fix the Senate’s democratic deficit is essential—and urgent.

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

Suggested Citation

Froomkin, David and Froomkin, A. Michael, Fixing the Senate (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 )

CT
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)

Yale University - Yale Information Society Project ( email )

127 Wall Street
New Haven, CT 06511
United States

Do you want regular updates from SSRN on Twitter?

Paper statistics

Downloads
201
Abstract Views
1,381
rank
206,189
PlumX Metrics