The Founders’ Most Deliberative Body
Whenever there’s talk of the founders and their intent to make the Senate the more deliberative chamber of Congress, I think it would be worthwhile to bear in mind some context:
- The great constitutional debates of the first Congress took place in the House of Representatives, not the Senate. The House hardly suffered for lack of deliberation. Notably, the historic debate leading up to the famous “decision of 1789″—which established a congressional precedent by which executive officers were understood to serve at the pleasure of the President—took place in the House. This is especially interesting given that the issue under debate was largely about the unique constitutional powers of the Senate. (One view in the debate held that, because the Senate’s “advice and consent” was required to appoint top executive officers, Senate approval should also be required to remove them.)
- Senate proceedings were actually closed to the public and the press prior to 1794.
- James Madison, “father of the Constitution,” served in the House, not the Senate. That’s not decisive evidence of anything, but no one can deny that Madison had serious deliberation skills.
- When the first Congress was seated in 1789, only eleven states had ratified the constitution. Twenty years later, in 1809, there were 17 states, making 34 senators. There’s no magic number of senators above which limits on debate must be institutionalized to prevent runaway exploitation of the rules protecting minority participation in debate, but surely the size of the body is relevant to the need for such rules. And if so, well, it’s only natural that the Senate did not adopt such rules in the early years—it didn’t need to.1
- The history of senate procedure is actually more complicated than that. There apparently was a rule to stop debate and move to a vote—”moving the previous question”—which was discontinued in 1806. But discussion of that will have to wait for a future post. [↩]
Size Is Not Our Problem
Ezra Klein disagrees with Kurt Andersen’s suggestion that the problem with Congress is that the ratio of constituents to reps is too large and somehow leads to an excess of anti-government populism, particularly in the Senate.
The framers worried about democratic government working in a country as large as this one, and it’s possible that we’ve finally reached the unmanageable tipping point they feared: Maybe our republic’s constitutional operating system simply can’t scale up to deal satisfactorily with a heterogeneous population of 310 million. When the Constitution was written and the Senate created, there were around 4 million people in America, or about one senator for every 150,000 people. For Congress to be as representative as it was in 1789, we’d need to elect 2,000 senators and 5,000 House members. And so I wonder, as I watch Senate leaders irresponsibly playing to the noisiest, angriest parts of the peanut gallery, if the current, possibly suicidal spectacle of anti-government “populism” in Washington isn’t connected to our bloated people-to-Congresspeople ratios. As the institution grows ever more unrepresentative, more numerically elite, members of Congress may feel irresistible pressure to act like wild and crazy small-d democrats.
(Emphasis added.) Ezra ably dispenses with Andersen’s odd take on senatorial temperament. But Andersen’s ultimate suggestion here is that the problem with American democracy is that America is too big for the constitutional design. And that thesis fares no better.
Some of the framers did worry about effectively governing a country so large. But a crucial argument of the Federalist Papers (No. 10, by Madison) was that the greater size and diversity of the country would actually increase the stability of the government by decreasing the sway of factions and local interests over the general government. The size and heterogeneity of the nation were in fact integral elements of the intended design. The one concern about the scalability of the design was the danger that reps would become too detached from the varied experiences of their constituencies when those constituencies become too large for any one representative to know and understand.
As for our own experiences, it’s really hard to make much sense of the notion that the dysfunctions of Congress are the result of a defective scale of representation. It is not the size of the country that causes congressional failure to enact legislation that suits majority preferences. It is malapportionment and supermajority rule in the Senate. The former is not a departure from the framers’ design, but the realization of it. And the latter is a consequence of the Senate’s own rules. Those rules may be crazy, but they’re not small-d democratic.
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