The “small” states at the Constitutional Convention insisted on equal representation in the Senate, which became two votes per state. As a result, a relatively small part of the American population can block what the rest of us want to do. For most of our history that meant that states which tried to break the US up by seceding and going to war on our country have been able to resist the equal rights and opportunity that the rest of us tried to secure for all Americans.
The Senate wasn’t intended to do that. It was the small size, and what the members of the Convention expected would be the small population of New England states except Massachusetts, which still included Maine, that ultimately led some northern delegates to accept equal representation, because they were free states, revising their law to reflect that freedom. The Senate was supposed to form a bastion of freedom against the slave-owning south. It didn’t work out that way, of course, and the Senate has become a big obstacle to liberty and equality.
The filibuster made it worse. Theoretically both sides can filibuster but for decades it prevented progress toward equal rights even when Senate majorities favored it. It was still being used last year to prevent anti-lynching legislation – what’s American about lynching?
So what can we do about the Senate? First of all constitutional amendments require ratification by three-fourths of the states. That’s hard. We’ve made a number of procedural amendments, but substantive changes have been rare since the Progressive era – the Equal Rights Amendment, designed to give equal rights to women, failed to clear three-quarters of the states. And the closing words of Article V read that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” In other words we’re stuck with it.
It may surprise you but the Constitution doesn’t prohibit an amendment that would reduce the Senate to the status of the House of Lords, able to postpone legislation but not defeat it. The Constitution does not prohibit giving away the Senate Chamber and facilities and making the senators homeless – I don’t know what that would accomplish but it’s an interesting thought. And we could do away with the filibuster, so on those occasions when the good guys can capture the Senate, the bad guys can’t filibuster it away.
Yes, there are risks. If the Republicans recapture both the White House and the Senate, with or without their current base of white nationalist and tea party support with their extremist funding sources, the Democrats won’t be able to do a thing about judicial appointments. But there’s a good chance that racist Republicans will lose ground even within the Party, which improves the odds that eliminating the filibuster will be good for the country.
The filibuster could be weakened by restoring the requirement that the person doing the filibuster actually keep talking nonstop, not just put a paper hold on legislation until and unless a super-majority ends it. It could be weakened by excluding the category of election laws from its clutches. Whatever it takes, Schumer, Harris and Biden have to create a path through the filibuster roadblock – a path that will make American democracy reliable, opposition parties, loyal, and our constitutional system something we can be proud of again. Oh, by the way, on the impeachment trial, free speech has never included a right to conspire, defraud, incite or defame. Trump’s “free speech” defense is just another of his false claims.
Steve Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics. He is the Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School, served on the New York Civil Liberties Union board, on the New York Advisory Committee to the U.S. Civil Rights Commission, and as a US Peace Corps Volunteer in Iran.
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