A liberal NYU law professor's solution to other liberals complaining about representation in the Senate.
Divide States to Democratize the Senate
A constitutionally sound fix to a vexing political problem.
‘No State, without its Consent, shall be deprived of its equal Suffrage in the Senate,” declares Article V of the Constitution, which lays out the amendment process. A Californian has only 1/65th the representation of a Wyoming resident in the upper chamber. That’s undemocratic, but there’s no way around Article V.
Or is there? Article IV provides that “new States may be admitted by the Congress into this Union”—including from the territory of an existing state, if its legislature consents. Five states were created in this manner: Vermont from New York (1791), Kentucky from Virginia (1792), Tennessee from North Carolina (1796), Maine from Massachusetts (1820) and West Virginia from Virginia (1863).
Drawing on that tradition, a Democracy Restoration Act could grant blanket consent to populous but underrepresented states to go forth and multiply to restore the Senate’s democratic legitimacy.
Section 1 of the act would provide that whenever the decennial census identifies states with populations that exceed that of the least populous state by more than, say, 20 to 1, each of those largest states would have the option of dividing in half. Section 2 would condition the creation of any such state on the consent of the residents of both halves of the original state.
If, using the 2010 census, we set the trigger at 20 to 1, the six states exceeding 12 million people—California, Texas, New York, Florida, Pennsylvania and Illinois—with about 41% of America’s inhabitants, could split, yielding 12 new senators and dramatically reducing the Senate’s structural inequality. If we set the trigger at 10 to 1, 19 states with more than 70% of the U.S. population could generate 38 senators. Go all the way to 6 to 1—the ratio between the largest and smallest states when the Constitution was ratified—and 29 states yield 58 senators.
Given current political reality, such an effort to restore democracy to the Senate would likely attract more Democratic than Republican support. But it wouldn’t necessarily advantage either party. Bifurcating Texas and Florida would probably generate Democratic gains, with Georgia and Ohio up next; but splitting California, New York and Illinois could open up opportunities for Republicans. Once state boundaries were locked into place, Senate gerrymandering would become almost impossible. The future is unpredictable, but it would be determined by democratically legitimate institutions.
My fix wouldn’t be easy. Realistically, the Democratic Party would have to gain a Senate majority and the presidency under the existing, stacked system. Political leaders and residents in the underrepresented states would have to be willing to shake up the status quo to take advantage of the increased political power offered by creating new states. That means agreeing on fair boundaries, working out the problems of bifurcating (like liability for debts), and providing for joint administration of certain programs, possibly via interstate compacts.
The important thing is there’s a constitutional way to rescue the Senate from its current undemocratic condition.
Mr. Neuborne has taught law at New York University since 1972.
https://www.wsj.com/articles/divide-states-to-democratize-the-senate-1542672828?mod=hp_opin_pos2
