2 Equal Representation

The Perpetual Great Compromise

The inequality of representation in the Senate [is] always a subject more or less disturbing to logical minds.

—S. E. MOFFETT, 1895

Why Washington, D.C., Is Not a State: It’s the Senate, Stupid!

The Twenty-Third Amendment to the Constitution, giving Washington, D.C., electoral votes in the election of the president and vice president, was passed by the Eighty-Sixth Congress on June 16, 1960, and ratified by March 29, 1961. Even though only one state from the former Confederacy voted to endorse the proposed amendment, ratification by the required three quarters of states took just nine months and twelve days, making it the third fastest addition to the Constitution.1 Even the repeal of Prohibition took longer.

Washington was still a relatively sleepy and southern town during the same months that John F. Kennedy was campaigning for and then starting his presidency. Nevertheless, with 752,000 residents, the District in 1961 was more populous than eleven states. Moreover, with civil rights becoming a central issue in American politics, the 1960 census revealed that the majority of the District’s population was African American.2 So, while southern states were no doubt concerned about how the amendment might affect the national balance of power for the presidency, D.C. got its three electoral votes. Most of the nation embraced the principle of democratic representation for the population of this major city because the impact was likely to be rather insignificant.

A decade later, with the District thoroughly Democratic and still greater in population than ten states, Republican president Richard Nixon would sign legislation granting the District one nonvoting delegate to the House of Representatives. But representation in the Senate had been and would remain an entirely different matter. In 1978, Congress—at an apex of Democratic power in both chambers of Congress—submitted the District of Columbia Voting Rights Amendment to the states for ratification.3 The proposed amendment specified that the District “shall be treated as though it were a State” as far as representation in Congress and the election of the president and vice president were concerned. The amendment received only a handful of Republican votes, and only sixteen states ratified it in six years; the record shows that the main opposition was due to the impact on the Senate. Republicans offered unsuccessful alternatives: first, to allow D.C. residents to vote in Maryland’s elections for US senators instead of the District getting its own senators, and, second, to have the amendment apply only to representation in the House. This failure notwithstanding, there has been an ongoing statehood movement ever since, even as D.C. slipped in relative population.4 In the census of 1980, the District was bigger than only four states, then three in 1990, and then only Wyoming in 2000.5 In 2020, the Democratic House of Representatives passed a bill to grant D.C. statehood, but it went nowhere in the Republican Senate.6

The odd status of Washington, D.C., reveals both the political importance and representational irrationality of the Senate. Who could imagine giving a metropolitan area of 68 square miles and fewer than 600,000 residents two senators? Wyoming, by contrast, with fewer residents than D.C., but 98,000 square miles and far more cattle than people, must have its two senators.

A common view is that D.C. would never be admitted as a state because of the “four toos”: it is “too liberal, too urban, too black, or too Democratic.”7 Race and its relationship to liberal policies and the Democratic Party matter, of course. But that is looking at the problem the wrong way. Adding one more liberal Black representative to the House—with full voting rights—is not such a significant concern that it would stop a concerted effort to achieve the equivalent of D.C. statehood, just as it would not stop the equivalent for a hypothetical district that was largely white and conservative. But two liberal and possibly Black senators is another matter entirely. It could tip the balance of power in the Senate indefinitely, especially a Senate with the filibuster; that is, supermajority requirements to end debate.

The strained arguments against D.C. statehood reveal what they awkwardly seek to obscure: the absurdity of Senate representation. The very thing—equal representation—that is otherwise a bedrock of the Constitution and, for many, a measure of the founders’ genius is the unspoken reason that D.C. or Puerto Rico cannot be granted the status that supposedly makes the American system special. The disenfranchisement of D.C.—which would be the state with the highest percentage of African Americans—highlights as well a central theme of this chapter and the next: the strong historical bond between equal representation in the Senate and efforts to maintain white supremacy. Two senators from the District of Columbia would be small recompense for the over two hundred years of the Senate’s generally ignominious role in the oppression of Black Americans.

In this chapter, I explore the role and evolution of equal representation in American constitutionalism and democracy and make four arguments about its development and impact. First, the Senate as it developed via new state admissions was just what the Great Compromise portended: a battleground over regional interests. This was the case before and after the Civil War. And state admissions were the weapon in that battle. Second, prior to the Civil War, the main beneficiary of equal representation and state admissions were the slave-holding states of the South. Equal representation’s outstanding role in early American history was to serve as the institutional core of the so-called “slave power.” Third, emerging from and as part of this use of equal representation before the war, southern senators—who saw themselves as a minority oppressed by the northern majority—helped forge the idea that the Senate was the Constitution’s citadel to protect minority interests, even though no such thing was intended, as I showed in the last chapter. Finally, despite the manifest use of equal representation and state admissions in party and regional competition for the entire nineteenth century, equal representation did not become the focus of efforts to reform the Senate. Instead, forces of democratic change would converge on another defining feature of the Senate: selection by state legislature. An ultimately successful movement rallied behind direct election of senators, resulting in the Seventeenth Amendment in 1913. As the Senate was democratized in this way, growing inequities of equal representation were left intact for logical minds to ponder as the Senate forged its way into the new century.

The Great and Permanent Compromise

It is called the Great Compromise for a reason. The decision at the 1787 Constitutional Convention to give each state equal representation in the Senate was the most controversial and difficult of that summer. Led by Virginia, a coalition of “large” states sought forms of proportional representation in both chambers of the proposed national legislature, while the so-called “small” states held out for equal representation in at least one chamber. However much that summary oversimplifies a more complex situation, it captures what became the linchpin of the entire convention. Midway through the summer the proceedings nearly collapsed when the question arose of how the Senate would be constituted, and, as Madison predicted in the midst of the crisis, if this problem were solved, “all others would be surmountable.”8 That proved to be the case.

A few months later, when the time came to justify the Senate’s architecture in the Federalist Papers, Madison thinly disguised his distaste for this feature of the proposed government and portrayed it as an invention of political necessity:

The equality of representation in the Senate is another point, which, being evidently the result of compromise between the opposite pretensions of the large and the small states, does not call for much discussion. . . . It is superfluous to try by the standards of theory, a part of the Constitution which is allowed on all hands to be the result not of theory, but “of a spirit of amity, and that mutual deference and concession which the peculiarity of our political situation rendered indispensable.” . . . A government founded on principles more consonant to the wishes of the larger states, is not likely to be obtained from the smaller states. The only option then for the former lies between the proposed government and a government still more objectionable. Under this alternative the advice of prudence must be, to embrace the lesser evil; and instead of indulging a fruitless anticipation of the possible mischiefs which may ensue, to contemplate rather the advantageous consequences which may qualify the sacrifice.9

Madison’s argument—like the rest of the Federalist essays—was first published in a New York newspaper. At the time, New York’s population was slightly above the average of the states’ populations, but its delegation to the Constitutional Convention repeatedly supported state equality, including the unicameral New Jersey Plan, and voted against proportional representation in the House.10 In fact, Alexander Hamilton was left to fend for himself and his state when his New York colleagues, John Lansing and Robert Yates, abandoned the proceedings after July 10 and returned home because the work of the convention portended, in their view, a centralized system.11 New York was seen as the key swing state in the battle for ratification, and that is why Hamilton organized the effort there to produce and publish the arguments that would become the Federalist Papers. From this perspective, Madison’s less than subtle criticism is somewhat startling. Instead of extolling equal representation for the benefit of antifederalist New Yorkers, Madison seemed to be writing for large-state citizens suspicious of, or actively opposed to, equal representation.

Though it was the pivotal controversy at the convention, equal representation proved to be less of an issue during ratification than one might have expected. Nevertheless, if it was going to be challenged, the challenge had to happen as states considered the new plan. Unlike anything else in the Constitution, once equal representation was ratified, the door would be shut and double-bolted. With ratification, it was left to be seen whether Madison’s hope would be fulfilled. Would equal representation’s “advantageous consequences” he urged us to contemplate ensue? Or would the mischiefs be many, the advantages negligible, and the sacrifice increasingly glaring?

The Antebellum Irony of Equal Representation

However farsighted the founders seem to have been in many areas of politics, some of their notions of demographics seem naïve from our perspective. No small part of the anxiety the founders had about state size and regional representation was based on projections of population growth. In turn, those projections were based largely on the physical size of the states and the presence or absence of slavery. A quick glance at a map of the states at the time of the Constitutional Convention shows how physically large the southern states were compared to most of the northern states. Some southern states did not have western borders and instead extended all the way to the Mississippi. The intuitive eighteenth-century assumption was that the larger the territory, the greater the potential population.12 And slavery was, of course, part of the potential for southern growth. This was an agrarian perspective that did not give much weight to the potential for urban concentration around trade and industrial production.

At the Constitutional Convention, the conflicting interests between slave and free states surfaced on a few occasions over questions of representation. And the conflicts between slave-holding and free states intersected with issues around small versus large states in interesting ways. The Great Compromise was preceded by what some have called the “greatest compromise,” more commonly known as the three-fifths compromise: the decision to include three-fifths of any state’s total enslaved population in its apportionment population for the House of Representatives. This ratio, familiar to the delegates as the rule of revenue or “quota of contribution” created by the Congress of the Confederation, was adopted with little debate by a vote of 9–2.13 The greatest compromise might have softened the way for the Great Compromise, even if that is difficult to discern in the voting by states and individual delegates.

The extra representation in the House might have made it easier for some large-state southern convention delegates to accept equality in the Senate; in turn, the potential domination of the House by the South might have given some northerners a reason to accede to senate equality.14 The potential power of the South in the House—and Virginia was by some margin the largest state—was another argument for making the Senate into a northern institution. At the convention, there were six “northern” or border states that were free or with insignificant enslaved populations and six southern or border states with significant enslaved populations.15 And if the convention succeeded and Rhode Island, which did not send delegates to Philadelphia, joined the union, then the balance would be seven to six. That small initial northern advantage in the Senate seemed likely to grow sooner rather than later with the transformation of the Northwest Territories into states, states that were preordained to be free by the Northwest Ordinance. But that is not how the nation evolved in its initial decades.

The irony is that it did not take long for the tables to turn as northern states gained population much faster than southern states. This was not due to the admission of new states. The original six “slave” states had at the start a slim population advantage over the seven northern states, now including Rhode Island (by about 65,000 residents, according to the 1790 census). Only twenty years later those same seven northern states, with New York and Pennsylvania leading the way, had over half a million more residents than the original group of slave states. This was the census head count including all slaves, not the apportionment population with enslaved populations counted by three-fifths. And in the 1810 census, enslaved individuals accounted for 37 percent of total population of the original six slave states, not counting Kentucky and Tennessee, which had been added to their ranks.16 Many in the North considered the three-fifths clause an unjustifiable addition to southern representation. Nevertheless, the northern states were destined to dominate the apportionment for the House of Representatives in spite of slavery. By 1820 the North had a greater than 800,000-person advantage in total population over the South, including all the states that had entered the union to that point. The resulting apportionment for the House of Representatives gave the North a 123–90 seat advantage. Twenty years later the gap had increased to 135–88. What about the Senate? Could the South use the Senate to offset the northern state advantage in the House?

The “Slave Power” and Equal Representation

Politicians in Washington could not control population growth, which determines the number and distribution of representatives in the House, but they could control state admissions, which is the only thing that matters for the Senate. The fairness of equal representation—as a principle of government—does not seem to have been a notable subject of discussion or concern during the first half of the nineteenth century. Sectional power certainly was, however, and as it became the dominant controversy in national politics, the Senate was the central battleground. And one factor loomed above all others: the determination of slave states to maintain parity with northern states in the Senate because there was nothing they could do about the House, even as many northerners lamented the boost given to southern representation in the House by the Constitution’s three-fifths clause. As a result, the consequences of state equality in the Senate constantly influenced the politics of antebellum state admissions. This was a contest of sectional clout, not political principle, and the Senate would be the institutional bastion of what critics labeled the “slave power.”17

As the South lost ground in the House, it maintained a balance of power in the Senate through a process of state admissions that kept the number of free and slave states, and thereby the number of senators from each region, equal or nearly so. The balancing act in the Senate began with the admission of Vermont and Kentucky, one free, one slave, in 1791 and 1792.18 Coming well before the conflicts between North and South emerged, this first pair maintained a one-state advantage for the North. The admission of Tennessee produced a 50–50 Senate in 1796, which was upset by Ohio’s entry in 1803 as the first state from the Northwest Territories. This was balanced by Louisiana’s entry as a slave state in 1812, followed by three pairs in close succession: Indiana and Mississippi, Illinois and Alabama, and, most famously, Maine and Missouri in the Missouri Compromise of 1820.19 By 1821 eleven states had been added, five free (Vermont, Ohio, Indiana, Illinois, Maine) and six slave-holding states (Kentucky, Tennessee, Louisiana, Mississippi, Alabama, Missouri). This produced a balance of twelve free and twelve slave states, and thus an evenly divided Senate.

The final pairing in state admissions was Arkansas and Michigan in 1836 and 1837. The South had its last hurrah with Florida and Texas in 1845, achieving a short-lived two-state advantage of 15–13 in the Senate while making up just under 40 percent of the House. This process and strategy fell apart, however, in the late 1840s and early 1850s at the same time as the South ran out of territory to convert to slave states. After Florida and Texas came the trio of Iowa, Wisconsin, and California, producing a 16–15 northern or non-slave-state majority. Minnesota and Oregon would be added as the sectional rupture headed toward civil war. Figure 1 shows the steady loss of southern power in the House relative to the Senate. In this way, the Great Compromise of 1787 lived on in the series of compromises over state admissions. Equal representation, the linchpin of this sectional balancing act, perhaps delayed but could not stave off secession and the conflagration that soon followed.

Historians have explored the various forces that limited but did not entirely suppress sectional conflict from the early 1800s to at least the Compromise of 1850.20 The equilibrium in the Senate meant that the South typically had enough votes to stop any legislation it deemed contrary to its vital interests. The House, by contrast, could and sometimes did pass antislavery measures. This goes back as far as 1804 and an amendment to prohibit slavery in the territory of the Louisiana Purchase.21 That failed in the Senate, as did an amendment passed by the House in 1819 to abolish slavery in Missouri as part of its admission as a state. After years of delaying the admission of Texas, the House voted to add an amendment to the Texas statehood bill that would have divided it into one slave and one free state. As well, starting in 1846 the House more than once passed the Wilmot Proviso to prohibit slavery in territory gained from war with Mexico. Finally, while the Kansas-Nebraska Act of 1854 was a foregone, if rather contentious, conclusion in the Senate, passing 37–14, the House fight culminated in a much closer 113–100 vote that signaled the fragmentation of the Democratic Party over slavery.

Despite a general and strategic preference by party leaders to avoid sectional conflict, the House repeatedly expressed majority opposition to the expansion of slavery, but these legislative initiatives could not get past the South’s institutional veto in the Senate. The Senate also had rules of debate (the subject of chapter 5) that allowed for minority obstruction in the form of dilatory motions and filibusters in the form of extended debate, and the South took advantage of those obstructive possibilities. As Gregory Wawro shows, slave state senators utilized their chamber’s rules to obstruct particularly as their minority status increased later in this era.22 But during these decades the House also had freewheeling debates, and minority obstruction was possible and took place there as well.23 The core of the slave power was equal representation in the Senate.

Antebellum Equal Representation and Minority Interests

The central importance of equal representation is also evident in the most influential and infamous strand of American political theory of the antebellum period. John C. Calhoun—representative, secretary of war, vice president, secretary of state, senator, and above all passionate defender of slavery as a positive and permanent good—developed his theory of the “concurrent majority” in response to the emerging minority status of the South. Calhoun believed the Constitution afforded inadequate protection to minority interests. The separation of power, the system of checks and balances, and federalism, in his view, could not prevent the formation around a major issue of a majority faction that could and most likely would use the instruments of government to injure or oppress the minority “interest or portion.”24 So much for Madison’s celebrated theory, expounded in Federalist no. 10 and no. 51, that a large and diverse federal republic would foil majority tyranny. Instead, the prevention of majority tyranny required that any proposed governmental action be subject to the approval of minority factions or interests.25

Calhoun presented the theory of the concurrent majority in his A Disquisition on Government, published posthumously in 1851. The work is utterly abstract and does not mention the South or slavery. But there is no mistaking its motivation and purpose. To be fair, Calhoun’s and southern concerns about domination by northern states and interests go back as far as 1828 and a sectional divide over tariffs rather than over slavery as such.26 This culminated in the bitter nullification crisis in 1832 and 1833, which included passage of what southerners labeled the “Force Bill,” the legislative instrument Congress provided President Jackson to enforce compliance with the tariff. Calhoun, who was Jackson’s vice president, resigned as part of this struggle so that he could take a seat in the Senate and fight more effectively from that vantage.

Important as the tariff fight might have been, it was quickly eclipsed by the contests of power involving slavery. “Southern political thought was a creature of circumstance,” argues Jesse T. Carpenter in his book on the subject, “devised solely to meet the exigencies of practical situations and pressing conditions.”27 The exigency or pressing condition was the protection of slavery. To this end, Calhoun proposed that his unspecified interests or portions have a veto power on governmental initiatives. “It is this negative power—the power of preventing or arresting the action of the government, be it called by what term it may, veto, interposition, nullification, check, or balance of power, which in fact forms the constitution” that Calhoun was proposing.28 How many minority interests or portions might warrant such a constitutional veto Calhoun does not say. He reasoned that such a power would deter proposals from factions that would advance particular interests at the expense of others and thereby “force them to unite in such measures only as would promote the prosperity of all.”29 Without further specification, his theory comes off as a recipe for political deadlock. Back in the real world, it had only one application, to the portion that was the South and its singular interest in enslavement. In concrete terms, the maintenance of an equal or nearly equal number of slave versus free states was the closest Calhoun and his allies were going to get to a such a veto.

Thus the first concrete manifestation and theoretical justification for the Senate as the bastion of what might be considered minority rights—more precisely, minority power—was the bond forged between equal representation and the interests of the states that sought, first and foremost, to protect and preserve the institution of slavery. Supporting the argument I am making here, Sarah Binder and Steven Smith argue that it was “Calhoun, along with other southern senators, who placed the protection of minority interests at the heart of Senate tradition.”30 The first step in this process was the transubstantiation of the raw politics of the Great Compromise and equal representation into a general notion that the Senate was designed to protect minority interests or rights. As Binder and Smith note, this spilled over into a justification for the Senate’s emerging tradition of extended debate and the ability to filibuster, another tool prewar southern senators were using to protect their interests, and a connection we take up in later chapters.31 In this way, the straightforward provision for two senators per state regardless of population intersected with the political interests of slave states to become the foundation for the Senate’s mythology about its special and supposedly constitutional role as guardian of the minority voice in the national government.

Party Politics: Equal Representation from Reconstruction through Redemption

That Senate mythology would endure and eventually grow despite the onset of the Civil War and the destruction of both the southern interest that led to the conflagration and any notions of concurrent majorities in theory or practice. Meanwhile, equal representation would serve largely as a partisan tool in the ongoing struggle for control of the branches of government in the decades after the war. In fact, that process started as part of the war itself with the admissions of West Virginia and Nevada. By splitting off from Virginia after its secession from the Union, the self-proclaimed leaders of West Virginia presented Lincoln and the Congress with a constitutional conundrum. Would the admission of such an entity comply with the restrictions in Article IV of the Constitution on new states being “formed or erected within the Jurisdiction of any other state”? The details are not important for our purposes, but Lincoln and many members of Congress saw admission, proclaimed in April 1863, as an expedient war measure that was probably not fully in compliance with the Constitution. West Virginia had a fairly large population, so there were no concerns about its size. It produced two Republican senators through the end of Reconstruction; after that the state elected two Democrats for most of the rest of the century.

By contrast, the recently formed Nevada Territory contained very few people and was far removed geographically from the war. Nevertheless, as with West Virginia, the politics of war greased the wheels of admission, resulting in the rapid formation of a state with the smallest population ever to be admitted. In 1860, the Nevada Territory contained a mere 6,857 people. At the time, the recently created Oregon was the smallest state, with a rapidly increasing population of over 52,000. Despite some disagreement among Nevada’s residents about the wisdom of statehood, Congress passed an enabling act early in 1864 inviting the territory to seek admission. Which it did, becoming the thirty-sixth state on October 31, just in time to take part in the 1864 national elections. Nevada’s electoral votes, along with other political considerations, motivated swift congressional action.32

Nevada had a silver-induced population boom over the next decade, reaching a paltry 42,941 in the 1870 census. However, by 1900 Nevada’s population was less than it had been thirty years earlier. More than any other state admission to date, Nevada’s raised the issue of so-called “rotten boroughs” (also called “pocket boroughs”), which is a reference to parliamentary electoral districts, especially rural ones, in England that had very few voters. In these rotten boroughs, a handful of voters were under the thumb of an aristocratic patron who controlled the land and constituency. But British pocket boroughs produced only a single member of Parliament. Likewise, the admission of a state as small in population as Nevada, with one representative, had a small impact on the House. But the effect on the Senate was substantial in percentage and partisan terms. Nevada, with the exception of one senator for a single term, would elect two Republican senators through the end of the nineteenth century.

Nebraska was admitted in 1867, just after the war, while the Republicans were still firmly in control of the national machinery. Nine years later Colorado would enter the union in the summer before the election of 1876, which would mark the end of Reconstruction. Nebraska had two Republican senators for all thirty-two years except a single term by Populist William V. Allen. Colorado had two Republican Senators from admission through the end of the century except for one senator who switched parties for the last four years.

Following Reconstruction and the return of a nationally competitive Democratic Party, the two parties resumed an often bitter fight for control of the institutions of national government. Although the presidency would remain in Republican hands for twenty-four of the thirty-two years from the election of Ulysses S. Grant to the end of the nineteenth century, the Democrats had the majority of the House as early as 1875 and controlled that chamber for sixteen of the same thirty-two years. In the Senate, however, Democrats mustered a majority for only four years in the same period. No small part of this relative difference in Republican control was due to state admissions from the Civil War to 1890. Much as the South, the regional core of the Democratic Party, used the equal representation provision prior to the Civil War to retain some control over the national government, the Republican Party, which dominated politics in most states in the North and West, used the Senate’s peculiar form of representation for the same purpose.

This era culminated in the admission of six physically large but sparsely populated states—North Dakota, South Dakota, Montana, Washington, Idaho, Wyoming—in a nine-month period from November 1889 to July 1890.33 This led to more charges of rotten boroughs. Invoking the contemporaneous free silver movement, Democrats and other critics argued that the Republicans were engaging in the “free coinage” of senators, and Republican senators at that. The Democratic Party at this time stood behind the use of silver, along with gold, as currency. Democrats believed this more expansive monetary policy was beneficial to some of their core constituents, including farmers. Republicans accused Democrats of an inflationary policy that hurt the interests of many of their supporters. Democrats mocked the rapid creation of senators as the Republicans’ version of political free coinage. This charge was hard to deny, even though two of these new creations were as populous as or more populous than some of the smallest already existing states.34 These states were small and, for the most part, reliably Republican. While Montana and Wyoming were more competitive, the other four states had Republican senators over 85 percent of time from their admission in 1889 or 1890 to 1920. The admission of these six, which included four of the five smallest states in the country, came at the same time that the two largest, New York and Pennsylvania, for example, grew by almost a million residents each from 1880 to 1890 (an 18.1 percent increase for New York and an almost 23 percent increase for Pennsylvania) as the great wave of immigration was having its enormous impact. This produced the largest disparity in the nation’s history between the average populations of the largest and smallest states.

The late-century contest for power between the Republican and Democratic parties was fraught and bitter, with strong levels of party discipline in Congress and among voters, with fights over many issues, especially those related to the relative economic interests of an industrial North and an agrarian South. It was not, however, an ideological or moral contest over the rights of African Americans. After Reconstruction, the parties split geographically, with one-party Democratic rule in the South working toward the rigid and often violent enforcement of what would be by the 1890s the twin pillars of white supremacy: Jim Crow segregation and electoral disenfranchisement of Blacks.35 Unable to compete effectively in southern states and districts, the Republican Party dominated many northern and western states that contained very few African American voters. The Grand Old Party was willing to wave the “bloody shirt”—that is, invoke the memory of the Civil War—but that was far more about the martyred (and white) Union dead and hundreds of thousands of loyal Union veterans than about the rights of Blacks that had been sacrificed after Reconstruction.36 The unsuccessful effort in 1890 to pass a federal elections bill that, in theory at least, could have enforced suffrage rights in the South marked the end of any congressional efforts to enforce the Fifteenth Amendment.37 The elections bill was killed by a senate filibuster. As well, a Supreme Court appointed largely by Republican presidents and confirmed mostly by Republican Senates would six years later make “separate but equal” the law of the land in the infamous Plessy v. Ferguson decision. Hence the irony. While southern power in the Senate served the cause of white supremacy before the Civil War, northern dominance of the Senate in the late nineteenth century did nothing for the plight of African Americans as the nation descended into decades of American apartheid.

Notice that it was the majority party, the Republicans, that used state admissions to ensure institutional control, to bolster the chances that they would remain the majority party or at least retain control of the Senate by stacking it through the admission of new states. As this was happening, no politician invoked abstract notions of minority rights to justify the admission of these states. Rather, the majority party pursued a project of institutional engineering to shore up its congressional power. In this context, equal representation could become an issue, but more as a question of power than of principle. Only a few scholars and other commentators of the day, such as S. E. Moffett, quoted at the start of this chapter, complained about the manifest oddity and general inequities of equal representation, which western state admissions demonstrated quite clearly. Consequently, a symptom—the effect on partisan control—was the focus in this contest for power, not the disease itself. Instead, a different feature of the Senate’s original architecture became the focus of reform.

Not Equal Representation but Direct Election

If few Americans voiced displeasure with the growing disparities caused by equal representation, another founding feature of the Senate, indirect election by state legislatures, was attracting more and more attention and opposition. Over the same decades of the nineteenth century, as new states were admitted and new senators minted, the politics of democratization—the general if uneven trend toward an expanding franchise directly selecting its representatives—put Senate selection by state legislatures rather than equal representation on a collision course with the political evolution of the country. This ultimately culminated in the Seventeenth Amendment, ratified in 1913, and the direct and popular election of senators by voters instead of state legislatures. One irony is that the same western states, the ones that benefited mightily from equal representation, were leaders in the popular movement for direct and democratic election of the Senate.

The original combination of equal representation and selection by state legislatures implied a form of corporate representation. A senator represented the collective will of the state that chose him. This was a sensible assumption, but one, as noted earlier, that combined what Madison and some of the other founders saw as oil and water. Equal representation was the great compromise to recognize state sovereignty. But election by state legislatures was primarily a form of elevated selection. At the Constitutional Convention, the Virginia Plan, the proposals that set the agenda for the convention’s deliberations, included a provision to have the lower house select the members of the upper house “out of a proper number of persons nominated by the individual [state] Legislatures.” This had nothing to do with states as states—far from it. This method would have further distanced senators from any connection to a particular geographic constituency. Various considerations led to a final decision in favor of state selection, particularly the concern that election by the members of the House of Representatives would make the Senate too dependent on that body. Although the Madisonian vision of a detached and nationalist Senate did not perish immediately, it lived on mostly in rhetoric about the Senate’s lofty constitutional purpose. By contrast, the reality was that many state legislatures saw senators as delegates sent by them to represent state interests.38

At the same time, however, the country was democratizing, and voters were being integrated into party politics and party voting, with the presidential election increasingly seen as a plebiscite to determine national control. The people did not vote directly for the president, but that did not stop them from making it into the near equivalent of a direct election by the 1830s with the help of Andrew Jackson and the Democratic Party.39 Just as the operation and purpose of the Electoral College were effectively overturned by the power and requirements of parties and democratization, the founding purpose and operation of selection of the Senate by state legislatures would be overtaken by party politics. Could senators in such a system maintain Madisonian insulation and independence? Not exactly. The same forces of democratization and party politics swept senatorial selection into their vortex. As party politics became the central organizing force in American government, senators were selected not so much by state legislatures, on behalf of the state, but by political parties within the states, on behalf of the control of national politics.

Parties and voters in a good number of states, without changing the Constitution, or at first even any state election laws, converted indirect election of senators into a popularity contest for control of the state. The mechanism was the so-called “canvass” or straw poll primary. This was, as William Riker describes it, “a canvass, that is, of voters rather than of state legislators, a canvass in which candidates for the Senate helped elect those state legislators who were more or less formally pledged to vote for them.”40 If that sounds obscure, we can use a rather famous moment from American political history to illustrate how selection of senators evolved: the Lincoln-Douglas debates of 1858, when the two were opponents in the contest for the US Senate. If senators were selected by state legislatures, what were the candidates doing holding public debates before large crowds around the state? They were leaders of their parties. The nationalization of politics and policy—especially with the nation on the brink of a civil war—elevated the Senate candidates above the state legislators who supposedly picked them. With a large and increasing number of Senate contests becoming the focal point for popular politics, state legislators were at times beholden to the successful Senate canvasser for their office. Lincoln and Douglas had been nominated by their respective state party conventions, which in practical terms meant that the potential state legislators were pledged—well before they were even elected—to vote for that candidate for Senate. This combination, the nomination of senatorial candidates by state convention and the subsequent public canvass, did not become typical until the 1880s. To quote Riker again, “These devices, the public canvass and pledged legislators, were at their height soon after 1900. How well they worked is shown by the idiom: people spoke of the ‘election’ of senators in November, when in fact only state legislators were then elected.”41 The principal point I wish to make here is the degree to which partisan politics rather than state interests determined who would become a senator in the era before direct election.42

Even though any democratic pressure on the Senate took the form of popular election rather than equal representation, from time to time, equal representation did become a political issue. In 1895 when S. E. Moffett argued that equal representation is “always a subject more or less disturbing to logical minds,” he noted that it had been “pushed into peculiar prominence” by, among other things, the admission of low-population western states and the relation of that to contentious political issues such as the tariff and silver question.43 Coming only five years after the six-state “free coinage” of western Republican senators, Moffett was writing as the nation was debating the potential—and controversial for other reasons, as well—admission of Utah, which would come in January 1896. Oklahoma, Arizona, and New Mexico were also under consideration, though those would not be admitted until the early twentieth century. Moffett was also writing at a time when the Senate had become “intensely unpopular” owing to its connection to antidemocratic corruption related to powerful party machines dominating some states.

Despite his unflattering comments about the Senate, the answer to the question that Moffett posed as the title of his article, “Is the Senate Unfairly Constituted?,” was no, at least as far as equal representation was concerned. Moffett’s was an early, perhaps the first, scholarly claim that equal representation did not matter because voting in the Senate—based on his analysis of over twenty votes on major legislation from 1798 to 1893—had not been divided on the basis of state population. He concluded, “What is needed . . . is to make senators continuously and effectively responsible to their constituents, by depriving the legislatures of the power of election and giving the people power to recall unfaithful senators.”44 In other words, forget about equal representation because it does not matter and it cannot be eliminated regardless, and concentrate on getting direct election to change the Senate. This is what happened, and the movement, with support blossoming from the early 1890s onward, eventually triumphed after years of Senate resistance with the ratification of the Seventeenth Amendment in 1913.

In the Seventeenth Amendment’s progress from movement to ratification, however, is yet another connection between the Senate and white supremacy. Much of the opposition to direct election over the years was the result of constitutional conservatism, party politics, and the resistance of incumbent senators fearful of facing popular election. But southern senators had a unique concern: the potential threat posed by any constitutional amendment that expanded voting rights. As members of the Democratic Party, the party more committed to direct election, most southern senators and representatives backed such an amendment. But they sought to modify it with what became known as the “race rider” provision (“rider” being typically a pejorative term for an unrelated or divisive amendment to a bill). Directly negating Congress’s constitutional authority to regulate the time, place, and manner of national elections, this southern amendment specified that states would control those things when it came to Senate elections. This would have been another assurance that the Jim Crow South could maintain the disenfranchisement of African Americans with this addition to the offices filled by popular vote. A factor throughout the debates and votes on what would become the Seventeenth Amendment, the race rider was part of the successful House vote on the direct election amendment during the Sixty-First Congress, but its removal from the Senate version caused enough defections by southern senators that the vote in that chamber fell short of the necessary two-thirds. Only after the elections of 1910 added to the ranks of progressive senators in the next Congress was the amendment finally—and without the race rider—passed and sent to the states for ratification, which was achieved less than a year later without the support of eight of the eleven states of the former Confederacy.45

It is not difficult to argue that the Seventeenth Amendment’s impact was more symbolic than substantive. The ineluctable norm of popular vote for legislators had triumphed, but what difference it made in the substance of representation was not obvious at the time. Nor has its effect been clarified in retrospect, using the tools of modern political analysis.46 But the search for clear effects misses the point. In many ways, democracy was the means and the end. The search by social scientists for changes in senatorial behavior after the implementation of direct election might be interesting, but it says almost nothing about what the amendment accomplished because it was self-executing. Direct election was the accomplishment and effect.

The Senate had evolved with the Seventeenth Amendment and had been democratized in that way. In bringing this about, however, Congress and the ratifying states had done something perhaps quite unintentional. As Riker argues, the impact direct election might have on federalism was hardly debated before its passage, but it was another centralizing or nationalizing change in the Senate; subsequently, state legislatures paid attention to state policy, and senators were free to concentrate on national and even international affairs.47 In this way, the attempt to reform the Senate for the twentieth century had undermined one of the original foundations of equal representation. The selection of senators by state legislators had put a distinct emphasis on the corporate or collective nature of the Senate—that is, that senators represented states as corporate entities—and in this way reinforced the logic of the Great Compromise. After the Seventeenth Amendment was implemented, however, senators represented voters—their voters. Of course, a senator was still the junior or senior senator from the great state of New York or Wyoming, but only in the same way as a member of the House was the representative from the great Third District of Ohio or Florida.

Direct election revitalized the Senate by renewing its legitimacy, but it did not eliminate the logical and democratic problem of equal representation. In 1926, just over a decade following the implementation of the Seventeenth Amendment, the political scientist Carroll Wooddy posed the same stubborn question that S. E. Moffett had years before passage of the amendment: “Is the Senate Unrepresentative?”48 If nothing else, the popular election of senators ineluctably highlighted the number of voters in each state, the number of individual citizens, capable of electing two senators from any given state. By eliminating the idea of corporate representation and establishing the democratic basis of Senate representation, the Seventeenth Amendment unintentionally highlighted, at least in theory, the increasingly glaring contrast between Senate representation and evolving ideas of democratic fairness and equality. Democratized in one way, by direct election, the Senate’s other fundamental feature—equal representation—was heading toward a mid-century collision with what would become the bedrock tenet of modern democracy: one person, one vote.