Earlier this month, at the inaugural Spur Festival in Toronto, Chrystia Freeland and I pontificated about “Vested Interests in Politics” in our two countries. (Although Christia lives in New York and is a big honcha at Reuters’s Times Square headquarters, she is Canadian.) A few days later, in an e-mail conversation, Brendan de Caires, of PEN Canada, pressed me on why it’s so hard to rein in those interests. Is it, he asked, “safe to say that the Constitution’s most important quirks and biases—the electoral college, acreage trumping population in political representation—are now practically irrevocable?” Most of the big ones are, I replied:
In particular, we’re stuck with the political inequalities built into the U.S. Senate, which have grown more grotesque with time. In 1789, the population ratio between the most and least populous state was 11 to one. Now it’s 66 to one. James Madison and Alexander Hamilton absolutely hated the idea that each state should be entitled to the same number of senators regardless of size. Hamilton was withering on the topic. “As states are a collection of individual men,” he harangued his fellow-delegates at the Constitutional Convention in Philadelphia, “which ought we to respect most, the rights of the people composing them, or of the artificial beings resulting from the composition? Nothing could be more preposterous or absurd than to sacrifice the former to the latter.” In the end, he and Madison accepted the deal only because without it the pipsqueak states like Rhode Island would have bolted. It gets worse. In the Constitution’s Article V, the one outlining the process for amendments, only one type of amendment is absolutely forbidden: “[N]o State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”
This last bit is one of the weirdest provisions in the entire document. The full text of Article V, which is one sentence long, is even weirder:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.
And what, you may ask, are the first and fourth clauses in the Article I, Section 9?
The first clause, limiting Congress’s power to lay direct taxes, was superseded in 1913 by the Sixteenth Amendment, which legalized the federal income tax. No big problem there, unless you’re a Tea Partier. But the fourth clause is a doozy:
The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.
This may look at first glance like the powdered-wig version of immigration reform, but of course it’s something rather more sinister. The Framers preferred to avoid using impolite terms like “the slave trade.” But that’s what they decreed must not be messed with before 1808.
As for the part about “equal Suffrage in the Senate” (equal suffrage, that is, for what Hamilton disdained as the “artificial beings” called states, as opposed to the human beings living in them), it’s grammatically unclear whether the 1808 deadline applies. Most authorities think it doesn’t, and that the two-senators-per-state rule is therefore eternally sacrosanct—that any change in it would have to be approved by all of the states, à la the Articles of Confederation, not just three-quarters of them.
I once had occasion—long ago, at a reception after a speech by Justice Anthony Scalia—to ask Justice Scalia what would happen if an amendment changing the composition of the Senate were ever passed. He replied that, offhand, he didn’t see how the Supreme Court could declare a properly proposed and ratified Constitutional amendment unconstitutional. So there’s hope. Wan hope, to be sure.
(My full exchange with Brendan de Caires is here.)
Illustration by Richard McGuire.