There may be a worldwide depression, a bigger pandemic, and the burning of the planet to contend with, but if Joe Biden is elected in November, our first order of business will be to learn all over again how to govern ourselves. If Biden is elected and the Democrats take the Senate, we could have a First Hundred Days that could change the Constitution without amending it at all. Whether we are conscious of it or not, the problem is the Constitution itself—which still privileges many of the same small states or underpopulated regions that first held back, and then wrecked, the original New Deal. If we want another New Deal of any kind, Green or not, the young in this country will have to begin by insisting on a true republic, based on one person, one vote. That means, above all, scrapping the United States Senate, which makes a mockery of that principle—the Senate which stopped the first New Deal, and will stop the next, and is the biggest reason our country is not more like Denmark today. Right now, in the Trump era, we are at a moment like the one the country faced in the 1932—there is not just the fear and uncertainty and a sense of being unmoored but also the doubt that our form of government is capable of coping. In a way it is even worse: unlike in 1932, the plot against America is already in full swing, and we as a people are even more uncertain of who we are.
Before the young in this country ever stop racism, much less enact socialism, they better start by changing our form of government. Thanks to the U.S. Senate, the government still overrepresents the racist and populist parts of the country. It also now overrepresents the rural areas or underpopulated interior regions that are the biggest losers in the global economy—and by no coincidence, it has made easier the rise of Trump. Even if Republican senators from these states are by and large more genteel than the Republican members of the U.S. House, they are the real screamers, who give voice to the country’s id, or rather the parts that are most raw and red and racist.
That’s why the Senate, for all its good manners and sophistication, is a greater threat to individual liberty than the raucous and badly behaved U.S. House—even when the House had a GOP majority. The very structure of the U.S. Senate makes it difficult for us to know who “We the People” are. If North Dakota has the same power as New York to determine the will of the country as a whole, it is impossible for the chamber to act on behalf of the population as a whole—the people that we really are. And it makes it impossible for the country to be free. A country is free only to the extent its government is subject to the will of the people as a whole, and if the country is not free, we are not free as individuals, either. We are right to be fearful of this pandemic, and of what may be a coming depression, and of the burning of the planet—fearful in our individual lives—because we live in a country that is not free to act to end these crises.
At a time when we are disoriented by everything happening around us, we are disoriented all the more by our relationship to our federal government because we cannot recognize ourselves in the strange fun house mirror of the “United States” as it is represented in the Senate. It is not just that the U.S. Senate represents a distorted version of the United States but also that it deprives the real United States—the people as they truly are—of acting in its best interests. And in doing so, it deprives us of the full measure of our citizenship and leads many of us not to bother with being citizens at all.
Because of the U.S. Senate, which denies the principle of one person, one vote, it is unsurprising that we have one of the lowest voting rates in the world—far lower than other democracies, whether in Europe or Asia, whether rich or poor. For all the rage over vote suppression in the red states, the Constitution itself is a form of vote suppression. The vote suppression built into the Constitution by frustration of majority rule just makes more tempting the overt suppression of which we justly complain. By design, every single American has a different and arbitrarily weighted vote, by virtue of the Senate structure laid out in the Constitution. Understanding that the odds are against their self-government, it’s easy to see, in part, why 100 million Americans choose not to vote, which in turn makes each vote even more arbitrarily weighted.
That is especially true of the young, including the activist young, now bitter about the defeat of Sanders, who was incapable of bringing new voters to the polls. But if Sanders had brought out these new voters—and been elected—he’d be one more Democrat who ended up betraying them. Enacting his progressive agenda would have been impossible without a big flip of the Senate, or a change in the Constitution. For the socialist left, it would be far better to have a Sanders-type of Congress than to have Sanders as president. But neither Sanders nor any other Democrat will tell the truth: “Unless you also elect a radical Congress, which won’t happen until we change the Constitution, I can’t deliver on anything at all.” The GOP nominees can deliver on their promises: the Senate is set up to suit what they need to do. The Democratic presidential nominees, all of them, even the best, have to mislead, if not lie. So deceit becomes part of the culture and even the language of Democratic Party politics. As Foucault might point out, we have a discourse of representation that must ignore the Constitution, which does not permit certain things to be said.
A good example of this deceit is the filibuster: “The Senate voted down S.R. No. xxx,” we say, when in fact the Senate passed it, fifty-five to forty-four, but could not overcome a minority filibuster. We don’t even have the language to resist our oppression. I revere Barack Obama, but when he said in 2008 that he would change the way Washington does business, without any intent even to take on the filibuster, he was deceiving us—and was engaged in a form of self-deception. It may not be outright lying, but the failure of even our best leaders to tell the truth helps to normalize the far more outlandish lying of Trump.
The Senate, for all its good manners and sophistication, is a greater threat to individual liberty than the raucous and badly behaved U.S. House.
We’re all part of that lying, and the left, which thinks so well of itself, is probably the worst offender. On the left, Sanders proposed to overhaul our particular form of capitalism, as if that could come before, or without, changing the structure of the Constitution, including the Senate where he’d built his own career. Both Sanders and Biden owe their years in power to the systematic denial of one person, one vote. Neither can even conceive of the existence of the Senate as a problem—much less the fundamental problem. And this leads to a more general failure to think of freedom in the right way—for we think of freedom primarily as freedom from the state. But there is a different view of freedom: it is to recognize that our freedom as individuals depends on the state being free. In Liberty before Liberalism (1998), the historian Quentin Skinner described an earlier idea of liberty, an idea of freedom, which came partly from Machiavelli and writers like John Milton and others writing at the time of the English Civil War. Skinner wishes to distinguish our modern sense of liberty, as an individual freedom from the state, from these writers’ view of liberty, which depended on the freedom of the state to act on behalf of the entire people, as they really were: “If a state or commonwealth is to count as free, the laws that govern it must be enacted with the consent of all its citizens, the members of the body politic as a whole.” It must be the will of that people, the actual people, and not a faux version of the people, or a fun house mirror image of the people. “For to the extent this does not happen, the body politic will be moved to act by a will other than its own.” And if the body politic is deprived of liberty, then none of us has any individual liberty. Rather, there is individualism without liberty. It is a fitting, Dante-like punishment for the United States that for the sin of hyper-individualism, we are currently locked down in our homes without the liberty to move. It is a natural consequence of our thinking of liberty as being free of the state when the state in turn is not free to represent or protect us.
The young grow up in a country that’s a dysfunctional family, where no one is saying out loud what is wrong. No one—no presidential contender, not Clinton, Obama, Biden, or Sanders—is willing to speak against the Constitution. Eventually, of course, the young—who worked for Sanders and march now against racism—will marry and move into middle age, and one day, grudgingly, half-consciously, may vote for a trimmer like Biden, as I will. But some will never entirely lose that particular sense that the young often have that somebody is lying about something—the sense that in this land of the free, there is something terribly wrong.
The first step, as in any dysfunctional family, or country, is to start telling the truth—and the truth is that the Constitution does not represent us, and we the people are subject to a will other than our own. It is to stop elevating the president as an omnipotent agent of change—which both the right and left do—because even in the glory years of Franklin Roosevelt, the Congress has been more important, far more important, unless there is rule by decree. As Ira Katznelson argues in Fear Itself: the New Deal and the Origins of Our Time (2013), the New Deal was limited to what horrifically racist senators from the South were willing to permit. The New Deal existed on the condition that many of its landmark laws would not apply in the South, usually by exempting agriculture. That’s how we lost organized labor in this country. The New Deal was based on a compromise with the Senate that the labor movement stay locked up in the North. Years later, the U.S. economy moved to the union-free South and West and we soon stopped having much of a labor movement at all.
The more the Constitution delegitimizes the left, the harder it becomes to criticize it—to demand checks on the Constitution’s minority rule. Thus, ironically, the only language we have to oppose the Constitution is to say: Defend the Constitution! So lawyers on the left like me form the American Constitution Society, when in reality the Constitution is the very thing we should be opposing for its rejection of the one person, one vote rule enshrined in every other democratic constitution in the world.
Both Sanders and Biden owe their years in power to the systematic denial of one person, one vote. Neither can even conceive of the existence of the Senate as a problem.
Yes, the Senate’s departure from one person, one vote is mindboggling—in the case of the filibuster, forty senators from states representing 9 percent of the population are capable of blocking a bill. Perhaps a better measure of our lack of liberty, senators from states representing 16 percent of the people are enough to enact a bill (assuming no filibuster). And like the Senate in the New Deal, today’s Senate overrepresents the worst parts of the country, albeit in the most genteel way—creating a sense that we have lost control of our own country. Let’s put aside the percentages set out above or even the hope that demography will flip Texas or Florida blue. Look at the map of the country: compared to the coasts, the vast interior of the country can seem relatively empty. In my own state—downstate Illinois—there is no one there. If it weren’t for the cars it would be easy to think it was still the 1940s, and of course people are leaving the area, without others moving in, as the rest of the country grows. To be sure, Illinois is far from the worst example of this phenomenon because it has Chicago, our biggest city of the interior, the only major American city that is not hugging up against an ocean as if scared to go too far inland. This vast interior, like the old South, becomes a bigger player in the Senate as it loses its relative importance in the country. There is every reason to think that in the next thirty years, the country will be more ungovernable than ever—and the country will have even less freedom or liberty to act.
It is the Senate, even without the filibuster, which has kept in place throughout our history an especially reckless form of capitalism, in which a relative few of us, like Tom and Daisy in The Great Gatsby, can smash up the economy and just drive on. The Senate was their legal guardian long before anyone heard of Mitch McConnell. In our first fourscore and seven years, the Senate had the effect of over representing the slave states, and locking in slavery, until the South made the colossal error of firing on Fort Sumter and starting the Civil War. Then, in the Gilded Age, thanks to the corrupt state legislatures that “elected” senators, and railroads that bought them, the Senate had the effect of locking in our current form of capitalism; and this was the real era of Dark Money. Of course, in the South, the Senate locked in Jim Crow, and a new form of slavery, and a racist authoritarian government in those states. Then the Senate blocked, and then slowly rolled back the much more egalitarian New Deal; and then in our own time, on at least three occasions since 1976, a Senate filibuster blocked labor law reform, a true right to unionize, that had been passed by the House; and so we have the inequality of the Gilded Age. The function of the Senate, from 1787 on, has been to threaten free labor. And thanks to the filibuster, it has not mattered that the Democrats from time to time get a simple majority in the Senate. At the start of the Obama Administration, there was high hope for labor law reform. At the AFL-CIO, people high fived each other: “We have sixty votes,” that is, enough to beat a filibuster. But sixty votes are never sixty votes, because the Senate—or at least one senator—is always for sale, and it is an illusion to think that so long as the filibuster exists, sixty votes can ever lead to an end of our new Gilded Age. Nor will sixty votes be there to stop the burning of the planet.
The Frozen Republic
Of the two great arguments in favor of the Senate, the first is that it increases bipartisanship. What it actually does is to force a near unanimity of right and left for anything to change. That is just another way of saying that the Senate deprives the state of its freedom, another way of saying that our real and true country is subject to a will other than its own. That’s why in the pandemic the majority—even those on the left, who ardently want change—have to first pay off Tom and Daisy before we can feed the poor. Of course there is no bipartisanship in this country; the Senate does not encourage but destroys bipartisanship by making it as hard as possible for anything to get done at all. A measure of bipartisanship has existed historically only when there is a dominant majority party, as after the Civil War or in the post New Deal. Right now, for structural reasons, bipartisanship is impossible. A minority opposition party can be as outrageous as it likes, and thanks to the Senate, with or without the filibuster its power to veto will carry the day. It also leads everyone, on right and left, to become more cynical and distrustful of government, not for doing too much but for doing nothing at all. It’s the Senate that has brought us to such a 1932 moment, such as Katznelson describes in Fear Itself, because the Senate has so long deprived us of the freedom to act. Measures like single-payer health care or at least Obamacare with a public option would be the law by now. And just as the Senate has helped to destroy the GOP as a responsible opposition party, so it has torn apart the Democratic Party, between Democrats who claim to be forced by the Senate rules to be “transactional,” giving away far too much in the name of compromise, and those who escape into a fantasy world by refusing to be transactional at all. What binds together both Biden from tiny Delaware and Sanders from tiny Vermont is that neither one legitimately belonged in that upper chamber if the Senate were based on one person, one vote. Both men owe their careers to our unrepresentative Constitution.
The other argument for the Senate is Original Intent, as equal suffrage of the states in the Senate was the price for having a United States at all. That’s why we have a nation—the Great Compromise of 1787, the New Jersey Plan and not the Virginia Plan. We’ve had to accept the Senate as the rules of the game, which take three quarters of the states to change, and so the rules will never change. Indeed, the Constitution itself says that every amendment is possible except an amendment to abolish the equal suffrage of the states in the Senate. Did you know that? Of course you could amend the Constitution to get rid of that provision and then go on to amend the Senate. But the argument is: rejection of the Senate is a rejection of the Constitution.
Let’s put aside that Madison, Hamilton, and the other real geniuses of the Constitution hated the idea of equal suffrage in the Senate and vehemently opposed it, and that those who think otherwise are in league with the most despicable of the Framers, the slaveholders of South Carolina and Georgia. For that matter, let’s forget that the Constitution itself is an illegal act: from the Continental Congress, the delegates to the Constitutional Convention had only the narrower mandate of amending the Articles of Confederation, and the amending of the Articles was supposed to require a unanimous vote. Instead, the Framers went rogue, and drafted a whole Constitution to be adopted for thirteen states if just nine agreed. Our country has never been legitimate by any standard that would hold up in a court. As Lawrence Lessig described in a recent book, Fidelity and Constraint: How the Supreme Court Has Read the American Constitution, it is legitimate only in the sense that there is a constituent power of the people even greater than the Constitution, including the provisions for amending it. If we really are faithful to the Constitution, we should put in a new one in the same extralegal way the Framers did.
Even so, apart from all the above, there is still an argument that the Constitution itself requires the Constitution to change—or at least that the Constitution as amended over the years has reached a point where the Senate itself is unconstitutional. The Constitution of 1787 began as a form of dual sovereignty, in part for the national government, in part for the state governments. Just as there was dual sovereignty, the people had two types of citizenship—citizens of the nation, and citizens of the states. The important point here is that the House represented the people in their capacity as national citizens while the Senate represented the states as institutions, and indirectly represented the people in their capacity as state citizens. But the Constitution is not static but dynamic: it was meant to form a more perfect Union, and its underlying logic was to continue perfecting that Union and increasing our capacity to act as national citizens. It’s because of this continuing work—the perfecting of our sense of national citizenship—that we have outgrown the constraints placed on it by state citizenship.
Aside from changing us, the Constitution changed. The Civil War Amendments (the Thirteenth, Fourteenth, and Fifteenth Amendments) and the Seventeenth Amendment rewrote the Original Intent. The rejection of one person, one vote is in conflict with these amendments. It is often said that the Civil War amendments represented a Second Founding, subordinating the states to the national government or making clear that our identity as national citizens was preeminent over our identity as state citizens. That’s the argument, for example, in Eric Foner’s much admired new book, The Second Founding: How the Civil War and Reconstruction Remade the Constitution (2019). The Fourteenth Amendment not only declares our right as national citizens to equal protection of the laws—that is, these broad rights we had as national citizens against the states—but also speaks of our privileges and immunities as federal citizens. Foner argues, justly, that the Fourteenth Amendment still has not taken full effect. The Fourteenth Amendment puts just about everything the states may do under the possible purview of the federal government. It is a kind of legal occupation of all the states by the national government after the War, just as there was a military occupation of the Confederacy. It is tragic that the Congress did not go on to change the representation of the Senate too—after all, anyone can see, contra Lincoln, that not just slavery but the way the Senate protected it had forced upon the country a civil war.
A Senate filibuster blocked labor law reform, a true right to unionize, that had been passed by the House; and so we have the inequality of the Gilded Age.
After that war, Jim Crow crept back into the Senate, which was also now on sale in the North. The quid pro quo was cruder, even less ideological, in a way, than the way dark money goes to senators now. So in the Gilded Age, we had a Senate even worse or more corrupt than the Senate that brought on the Civil War. The Senate was also for sale downstream, because the state legislatures that elected it were on sale and too weak to fend off, much less regulate, the nation’s new plutocracy. The railroads, the oil giants, J.P. Morgan, and others either bought up the state legislatures or directly bought off the senators. The Dark Money of that time was bright as day. Eventually the Progressives stopped the state governments from electing senators, effectively ending the Grand Compromise of 1787 and the idea that the Senate directly represented the states as corporate bodies, or that senators were delegates from these governments. Thanks to the Seventeenth Amendment, not the states, in their capacity as governments, but we the people, in our capacity as national citizens, did the electing of the Senate.
Under the Seventeenth Amendment, we have no right as state citizens to vote for the Senate; we’re doing it in our capacity as national citizens. And if the Senate is not representing us in our capacity as state citizens—it is not possibly representing us in our capacity as national citizens. This is not just an intellectual argument: it’s also real life. We can talk about dual sovereignty, or state citizenship, and some people feel they have a real identity as state citizens. But this is 2020, not 1787. People no longer have an identity as state citizens, at least not the identity that it was the Original Intent to protect. It’s gone. To the extent that people say, I’m a state citizen, they’re pretending. It’s another form of lying. All of us know—even those who say it—that it’s not true.
World v. U.S. Senate
While the Seventeenth Amendment may have saved the Senate, in a backhanded way it destroyed its legitimacy. There is an eccentric far-right set of Americans who keep calling for its repeal, and as preposterous as that is, these people are not wrong to think the Senate makes no sense unless the Seventeenth Amendment is repealed. The amendment arguably saved the country, or liberal government: it ultimately made the New Deal possible. Yes, there was still the racist bloc of senators like Carter Glass and Harry Byrd of Virginia—after all, they came from states where fewer than 4 percent of eligible blacks could vote. True enough, these senators did shut down much of the New Deal. But thanks to direct election in other states, there were more senators like George Norris of Nebraska and Robert Wagner of New York. Even in the South, there were some racist senators who otherwise voted with the left: Hugo Black of Alabama, for example, or even the horrific Theodore Bilbo of Mississippi, who is featured in Fear Itself.
The Senate no longer just limits our capacity to act as national citizens—within the nation—but our capacity to act as global citizens.
In one respect, by cleaning up some of the old Senate corruption, the Seventeenth Amendment worked too well: it gave us a certain number of liberal heroes, especially in the 1960s, senators like William Fulbright or Wayne Morse or Philip Hart. In my early teenage years, I was smitten by John F. Kennedy’s Profiles in Courage, a book about senators who took heroic stands, and it was Kennedy who, for me, gave the Senate a kind of existential cool. Senators were larger than life, and I still have my heroes, like Sherrod Brown. Meanwhile, over in the U.S. House, for years it seemed to many of us that there were 435 little ants running over to vote when someone rang a bell. Until Adam Schiff it was hard to pick any one of them out other than the Speaker. Only later, in my late twenties when I worked at the U.S. Department of Energy under Jimmy Carter, did I grasp that the Senate exists to paralyze the country, and began to appreciate the U.S. House as the battering ram, the branch that even more than the presidency represents the people, or would if only the Supreme Court would ever shut down the gerrymanders.
Still, there was a golden age: in part because organized labor in the North forced the election of many wonderful senators. And in 1964-66, Lyndon Johnson was able to exert his will in the Senate with a freakishly enormous Democratic majority. The Senate passed the Civil Rights Act of 1964—a start to the end of the racial slavery that the Senate had been set up to protect. It was suddenly hard to see the Senate as a problem, as Lincoln and others did just before the Civil War, or as the Progressives had: filibusters were extremely rare, and that Senate from 1964 to 1966 passed the Voting Rights Act, Medicare, and the Immigration and Nationality Act. Under that Senate, we were the land of the free. By the time of Watergate and Sam Ervin, and the Church Committee, many young people my age had a huge crush on the Senate—and for some, even under Mitch McConnell, it has not gone away.
But as labor unions collapsed, and race and Vietnam broke up the Democratic Party, this “good” Senate went back to its bad old Original Intent ways—though in part, it was by an accident. Some of the best senators had an idea for a rule to limit racial filibusters, but the new rule had unintended and lasting consequences. In 1976—prompted in part by then Vice President Rockefeller, the Senate adopted a new rule for cloture, that is, for a cut off of debate, a new Rule 22. In its current form, it permits a kind of pretend filibuster, a “procedural” filibuster by the filing of a motion with the Chair, which does not require Jimmy Stewart to stand there till he plops, but instead requires sixty votes in order to allow a simple majority vote. That’s right: it takes sixty senators for fifty senators to pass a bill. The reform here was that it had previously taken sixty-seven, but in the old days the racial filibuster was used just for protecting Jim Crow laws and vigilante lynching, and sixty votes would get rid of these shocking spectacles much faster. But few could see that the “procedural” filibuster would become routine, and filibusters went from being blue moon events to being used over a hundred times a session. This change effectively meant that in 1976 we threw away the “good” Senate. By 1993-94, minority leader Bob Dole used the filibuster to shut down the Clinton Administration—or the administration’s non-NAFTA agenda—which in turn discredited both of the Clintons with the left and split the Democratic Party. But Dole’s use of the filibuster also destroyed Dole’s GOP, which once identified itself as a responsible opposition to the party of Gingrich and now Trump. Now the GOP could go to even greater extremes ideologically and still have a hammer to stop a moderate Democratic Party. So the filibuster ended up destroying both the Democrats as a responsible governing party and the GOP as a responsible opposition. The bipartisan, “good” Senate was gone.
Still, might that filibuster soon be gone? It’s possible, if the Democrats retake the Senate in 2020. But both of these outcomes are far from certain. Even if the Democrats take the Senate, and even if they get rid of the filibuster, much of the long-term damage to the country has already been done. And we are now in a different age. It is no longer plausible that we can protect liberal democracy from the global challenges we face by going back to the pre-1976 Senate. For the Senate no longer just limits our capacity to act as national citizens—within the nation—but our capacity to act as global citizens. The Senate is so skewed a version of the United States that it is hard to imagine how two thirds of that body could ever fulfill its mandate to enact treaties. That means the Senate will prevent us—in this country and the rest of the world—from fending off an environmental Armageddon, making the chamber an existential threat to young people all over the planet.
It is probable that the U.S. Senate will be abolished eventually—because the rest of the world will no longer tolerate it. Aside from the 330 million here, there are billions of people around the world who have a stake in getting rid of it. If we don’t figure out a way to do away with the Senate, or at least its rejection of one person, one vote, then the rest of the world (or the collection of countries that are based on one person, one vote) will figure out a way of doing it, if only to save themselves.
But that’s likely to come much later in this century. Is there any hope right now? Yes.
The Short Window
This time—if the Democrats take the White House and the Senate—Joe Biden has an opportunity to use the First Hundred Days better than Obama used his. He might use it even better than Franklin Roosevelt used his own. In Biden’s First Hundred Days, there is a chance, a brief window, to change our form of government before enough of an opposition forms to stop it. It’s that moment when his presidency will be the most free of political gravity. In that moment, there are four ways to change our form of government without changing the written Constitution—and to restore liberty or freedom in Milton’s sense.
First, in the case of the Senate, we have to abolish the filibuster and admit Puerto Rico and the District of Columbia as states. Neither project will be easy. But at least each is possible, as recasting the Senate based on one person, one vote is not. The admission of Puerto Rico and D.C. will add, structurally, four new plausibly Democratic senators, and tilt the Senate in the long run to represent a still-spurious United States, but one much closer to the one that really exists. In the case of Puerto Rico, the special problem is the reluctance or fierce opposition of many on the left in Puerto Rico to becoming part of the United States. That’s understandable. But however justified that argument once was, it is now a lot more dubious at a time when climate change may cause the entire island to physically disappear. Puerto Rico is much more likely to protect itself existentially—the island itself—by making the difference in the Senate as to how the United States deals with climate change. It is an irony that we the people who deprived Puerto Rico of its liberty now need Puerto Rico to bring a certain kind of liberty to our own. Meanwhile, after Trump’s military assault on the District of Columbia, its admission as a state, with its own National Guard, would seem to be a matter of self-defense.
The last best hope of mankind—to head off environmental catastrophe—is to get the Senate out of the way.
As to the filibuster, even if there is a rules change, it will be capable of coming back at any time. The only way to protect a republican form of government is to drive a stake through its heart: prohibit by law, enacted by House and Senate, either house from using any device for the passage of a bill other than a simple majority vote.
Second, we have to invoke the power of Congress under Article I, Section 4 (the Elections Clause), to displace any state from using voter or election data to create districts for the U.S. House. This, in effect, would be a ban on gerrymandering. It may even be arguably constitutional to require the state legislature as well to be gerrymander-free as a condition for the right of that state legislature to draw the districts of the U.S. House.
Third, the Congress has to get rid of the Electoral College, or any other device that gives the White House to the runner up. The Electoral College is in the Constitution sure enough, but the Constitution does not prohibit Congress from regulating it. Congress passes laws aplenty that regulate the affairs of the executive branch and presidential elections in particular without any explicit mandate in Article I to do so. There is also Section 2 of the Fourteenth Amendment, which protects the right of citizens to vote for president and vice president without being disenfranchised by the states. Section 5 of the Fourteenth Amendment says that Congress may enforce any part of it by “appropriate legislation.”
What kind of law could it pass? Congress could require each state to assign its electors to candidates based on their respective percentage of the popular vote, rather than allowing a winner-take-all system. This would prevent any one state from being a battleground state, or leaving the presidency captive to the decisions that just three or four of the fifty states make.
Fourth, it is the moment to pass a bill limiting service on the Supreme Court to no more than fifteen years. That’s not to limit lifetime tenure: just as ex-Justice Souter or ex-Justice O’Connor did, a Supreme Court justice could go on serving in one of our distinguished appellate courts. And the bill should provide that in addition to the Constitution’s requirement of submitting the president’s nomination to the Senate, it should go as well to the House, which is the only chamber that represents and is directly responsive to the people as a whole.
Finally, and the most important way of overcoming the drag of the Senate, the republic is in sore need of universal voting, such as Australia and many other countries have. Because of all our checks and balances, we need the help of everyone to overcome them. At least the individual election outcomes in the Senate state by state will be more legitimate—if 99 percent instead of the usual 30 to 40 percent in the off-year elections vote. As bad as the Senate is, and as tilted toward Tom and Daisy, it is possible to change it if everyone has to vote. It is a kind of reparation for all the damage done by the Senate and our representative form of government—it is only right to push people back into citizenship when there has been a form of government to push them out, by frustrating majority will and our capacity to act as national citizens. It is the only way to force the young to take responsibility now in what will still be a dysfunctional family until the principle of equal suffrage of the states in the Senate is finally gone.
Even if there were a Hundred Days—and there may not be—none of the above would be enough. The Senate has to go. Until then the only hope is continuing education. It’s to keep telling each other that we the people are not free, and don’t even know who we really are. The last best hope of mankind—to head off environmental catastrophe—is to get the Senate out of the way. Perhaps there can be a convention of like-minded states—I mean, just the blue states—to propose a new constitution ratified by enough states to account for two thirds of our population. Then just put it in effect: let the Supreme Court howl. It’s how we put in the republic in the first place—not by unanimous vote as the Articles of Confederation required, but by throwing out the Articles altogether and daring anyone stop us. If we do not change the Senate, we may one day not have a Senate—or a Congress—at all. In 1933, we came close enough to giving up on Congress and putting in rule by decree, as other countries were doing. Global warming is our 1933. One way of changing the Senate in its current form is to wait until there is no choice but authoritarian rule.