For want of a majority of states

Slavery, civil rights, and how the U.S. Senate undermines democracy

Contributed by the Supreme Court Historical Society
Oliver Elseworth.

■ By Dave Marin / Contributed

One way to wave away the unequal representation of Americans in the U.S. Senate is to assert that to the extent the Senate has any affect at all on policy, it is a positive one, screening out proposals that in the long term were proven to be harmful anyhow.
Oliver Ellsworth, delegate from Connecticut to the United States’ Constitutional Convention, articulated this very sentiment when he asked another delegate: “…whether he had ever seen a good measure fail in [the Continental Congress] for want of a majority of States in its favor.” (Farrand, 1911, II:11).
In some sense, this argument is self-justifying; if a measure does not have the support of a majority of states, why, then it is not a good measure (essentially the “No true Scotsman” fallacy).
However, rhetorical technique aside, there are at least two measures that nearly all present-day Americans see as unarguably good: the abolition of slavery, and ensuring that African-Americans have the right to vote. Millheiser (2017) notes that the Senate played a key role in blocking both of these changes.
By 1819, the more populous free states enjoyed a strong majority in the House, but both free and slave states had equal representation in the senate, there being eleven slave states, and eleven free ones. Slave-state senators used their power to block a proposal to admit Missouri as a free state. This resulted in the Missouri Compromise, an agreement that the number of slave and free states would be equal. This balance began to unravel with the admission of California as a free state in 1850, and was effectively ended by the Kansas-Nebraska Act in 1854. Seven years later, the Civil War broke out.

Painting by Thure de Thulstrup
Hancock at Gettysburg by Thure de Thulstrup.

It is possible to argue that the Missouri Compromise was the only thing that might have kept the United States together. However, it also divided the country along sectional lines, and ensured that slavery could not be contained, much less phased out over time as it was in the Northern states. In a very real sense, it was not just slavery, but the way the Senate kept slavery alive, that led to the Civil War.
African-Americans formally gained the right to vote in 1870, with the passage of the 15th Amendment. However, actually exercising this franchise required the intervention of the federal government to subdue the white supremacist violence that tore through the South after the Civil War.
As Millheiser notes, it was again the Senate that magnified the power of the Southern states, ensuring that no civil rights legislation could pass Congress between 1876 and 1956. At this point, the Senate no longer constituted a majority of states, but the rise of the filibuster in the Senate ensured that even a determined minority could block legislation. For example several anti-lynching bills supported by the NAACP passed the House between 1922 and 1939, only to be filibustered in the Senate (Zangrando, 1965, 112–113). And this was despite polls showing 70 percent of Americans supporting anti-lynching legislation (ibid., 115).

Alfred Rudolph Waud, Harper’s Weekly, 26 May 1866
Scenes from the Memphis Riot.

Taylor et al. (2014, 74) note that although the United States has the oldest republican Constitution, it did not emerge as a democracy with universal suffrage until relatively late, with the passage of the Voting Rights Act in 1965. In the previous year, the Civil Rights Act of 1964 (which contained relatively weak protections for voting rights) only passed after being fiercely filibustered in the Senate.
While keeping slavery alive and blocking civil rights legislation are probably the most egregious examples of the Senate’s ability to block change for decades at a time, they are not the only ones.
Gilens (2007, 10–11), studying almost 2,000 survey questions on Americans’ policy preferences (for example, “raise the minimum wage”) between 1981 and 2000. He found a shocking result: even in cases where 90 percent of Americans supported a policy change, these changes were only adopted 46 percent percent of the time. He speculated that “supermajority requirements in the Senate” were among the reasons the federal government was so unresponsive.

Associated Press
Senator Strom Thurmond of South Carolina filibusters the Civil Rights Act of 1964.

Using the same dataset, Gilens and Page (2014) determined that which policies the federal government adopts can be entirely explained by the preferences of economic elites (that is, rich folks) and special interest groups, with average citizens’ preferences having no discernable effect.
The predicted probability of policy adoption (dark lines, left axes) by policy disposition; the distribution of preferences (gray columns, right axes).
Again, the Senate is likely the most compelling explanation. Not only is its membership largely composed of economic elites, but… over-representation of small-state voters makes the Senate uniquely vulnerable to the influence of special interest groups in a way that the House is not.

Dave Martin is Director of Research and Policy, California Freedom Coalition. This article is the first part of “What’s the Harm?” a part of a larger article, “The Great Bait-and-Switch: U.S. Senate Malapportionment in Historical Perspective.”

Gilens and Page; 2014, 573
The predicted probability of policy adoption (dark lines, left axes) by policy disposition; the distribution of preferences (gray columns, right axes).

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