No, The Atlantic, You Can't Reapportion the Senate With an Act of Congress

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January 3, 2019

A Wednesday op-ed in the Atlantic by Warton School professor Eric W. Orts claims the current trendy liberal constitutional gripe—the disproportionality of the U.S. Senate—can be fixed with one easy law. All you have to do is pass one statute and big states like California can have twelve senators and small states like Vermont only one. This constitutional shortcut has been hitherto undiscovered, but journalists on Twitter declared it a "fascinating argument," "so good and reasonable," and perhaps less charitably, "some real galaxy brain shit but I dig it."

Alas, I do not dig it. Orts actually explains pretty well the reason you can't really change the Senate's makeup, so I'll just quote him:

The obvious reply is, "This is impossible! The Constitution plainly says that each state gets two senators. There’s even a provision in the Constitution that says this rule cannot be amended." Indeed, Article V, in describing the amendment process, stipulates that "no State, without its Consent, shall be deprived of its equal Suffrage in the Senate." This seems like a showstopper, and some scholars say it’s "unthinkable" that the one-state, two-senators rule can ever be changed.

I mean, yes, this is the obvious reply, because it's obviously correct. Sadly, he continues:

But, look, when conservative lawyers first argued that the Affordable Care Act violated the Commerce Clause, that seemed unthinkable, too. Our Constitution is more malleable than many imagine.

First, consider that Article V applies only to amendments. Congress would adopt the Rule of One Hundred scheme as a statute; let’s call it the Senate Reform Act. Because it’s legislation rather than an amendment, Article V would—arguably—not apply.

The first point is more of a temper tantrum than an actual argument. Conservatives once made a case liberals thought was highly implausible, they prevailed at the Supreme Court on that point, therefore "unthinkable" constitutional arguments are fair game and the Constitution is "malleable." Never ye mind that the originalist justices ruled the way they did because they believe the meaning of the Constitution isn't malleable. The real argument is in the subtext; conservative jurists make it up as they go along, right guys? Why shouldn't we?

It's the second point where it becomes clear Orts is dishonest or inexcusably ignorant. It is true the Article V protections only apply to amendments, but that's because an amendment is the only way to change the Senate's apportionment. Article I and the Seventeenth Amendment (neither of which he quotes anywhere in piece) both state, "the Senate of the United States shall be composed of two Senators from each State." There's no need to invoke Article V when the law blatantly violates the text of the Constitution elsewhere. No judge alive would rule otherwise.

It gets dumber:

Second, the states, through the various voting-rights amendments—the Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth—have already given their "consent" by directing Congress to adopt legislation to protect equal voting rights, and this delegated power explicitly applies to "the United States" as well as the states. The Senate Reform Act would simply shift seats according to population. No state or its citizens would lose the franchise.

Given that literally no one has forwarded this idea before today, I will go out on a limb and say no one in any of the states intended to concede their right to equal representation in the Senate through those amendments. So now a state can unknowingly give "consent"? When the states that "consented" also later passed the Seventeenth Amendment, reasserting the two-senators rule? When for centuries every other instance of "consent" in the Constitution has been interpreted to require explicit consent through formal votes? Should Brett Kavanaugh have simply declared the Senate inadvertently and secretly "consented" to his appointment a century ago?

I'm a guy who's read through a pocket Constitution, like, a few times? Eric W. Orts is the professor of Legal Studies at an Ivy League school, a member of the New York and D.C. bars, with law degrees from Michigan and Columbia, who has taught at Harvard, NYU, and UCLA law schools. I have to believe he realizes his argument is nonsense. Surely an Atlantic editor did.

Why write/post it then? Well the same reason someone might argue a 29-year-old Alexandria Ocasio-Cortez could and should run for president, or Hillary Clinton can still be elected president in a special election, or the Grand Marshall of the Supreme Court will soon impeach Trump. There’s a market for liberal constitutional fan-fic, fairy tales that will make all your fantasies come true if you just believe hard enough.

I’m sure those hawking these fantasies see them as harmless means of self-promotion. But they all have the same implicit premise and feed the same instinct: when the rule of law and liberal policy goals come to a head, rule of law can be wished away. It's a dangerous idea, even if it's couched as no more than a plea for attention.