The Most Dangerous Chamber

The most common criticism of the Supreme Court, and of the judiciary in general, is that it is countermajoritarian. In other words, we let unelected, life-tenured judges overturn decisions of the people's elected representatives. Now, much has been said elsewhere about the "countermajoritarian difficulty," and also why it's not really so much of a difficulty. Today, however, I want to focus on a different countermajoritarian problem: the United States Senate.

Now, the Senate is elected by the people, and Senators have to face re-election every six years, so nothing about the body is particular countermajoritarian, on its face. But, in many respects, the body is highly countermajoritarian. The current Democratic caucus of 60 senators represents about 64% of Americans, and yet even with a Democratic president it is enfeebled by senators representing the other 36%. Now, before people start yelling about Bill Frist and the "nuclear option," note that even at the current Republican Party's height of power in 2005 and 2006, the 55 Republican senators represented 50% of Americans (my best estimate, to two significant figures). The current Republican party's power derives from the Great Compromise that allowed small states to ratify the Constitution. Each Democratic senator represents 3.2 million people; each Republican senator represents 2.7 million.

So, what is the problem with this?


In his paper on Judicial Review, János Kis justified judicial review based on two ideas: epistemic asymmetry and accountability. In this post, I will ignore accountability, as that is a very complex topic of its own. I want to focus on epistemic asymmetry. Kis defines epistemic asymmetry as "[w]hen a procedure is...more likely to allow correct decisions than its feasible alternatives." Correctness is a difficult term to define; in the judicial context, it likely means "correctly interpreting the Constitution," while in the legislative context, it likely means "correctly interpreting the will of the people." (This, I admit, is a very rough definition, but lets run with it for now). In interpreting Constitutional rights, we feel that the courts—insulated from day-to-day politics and having more extensive training and expertise—will be better able to identify the rights in the Constitution and to what situations they apply.

But what about the Senate provides epistemic asymmetry over the House of Representatives (or direct democracy)? Granted, Senators are generally considered "older and wiser," and they often have more political experience, but this alone only justifies the power of the 100-person body, not its makeup. The democratic deficit of the Senate favors rural areas over urban areas. Even within the Democratic party, Senator Max Baucus, who seemed to be the most important Senator this summer, represents a mere 480,000 people, or less than 0.2 percent of the U.S. population.

Is there anything about this particular countermajoritarianism—the supremacy of rural states over urban states—that is justified by any sort of epistemic asymmetry? Do we think that the Senate comes to "better" or more "correct" decisions because the 10% of the population in the smallest states gets forty percent of the voting power, or because the smallest number of states that make up a majority of Americans get only sixteen eighteen senators?

If not, we should start thinking hard about the real questions regarding democratic legitimacy that arise in the Senate.