Calling the Senate Undemocratic Misses Why It Was Built to Represent States

Every few months somebody discovers the Senate. The discovery goes like this: Wyoming has two senators, California has two senators, California has many times more people, and therefore the United States is not a democracy. The tone is that of a man who has just found a bug in the software and cannot believe nobody at the company noticed.

The company noticed. The company argued about it for most of the summer of 1787, nearly broke up over it, and settled it by a single vote on July 16. The equal Senate is not a bug. It is one of the most deliberate features in the entire Constitution, and it is the only one the Framers made nearly impossible to remove. So let's take the critics seriously, state their case as well as they would, and then see whether it survives the text and the record.

The critics' case at its strongest

Here is the argument in a form its best defenders would sign.

"Democracy means political equality: one person, one vote. The Supreme Court itself said so in the reapportionment cases of the 1960s, requiring state legislative districts to have roughly equal populations. Yet the Senate gives a citizen of a small state far more weight than a citizen of a large one. Senators representing a minority of the national population can block legislation, confirm judges and approve treaties. That weight does not track anything morally relevant. A voter in Wyoming is not wiser or more deserving than a voter in California. The arrangement was a concession extracted by small states under threat of walking out, a bargain of 1787 politics, not a principle. And because the Senate now confirms life-tenured judges, the distortion compounds over decades. Any honest democrat should want it changed."

That is a fair summary of the case. It has a moral premise (equal individual weight), an empirical premise (small-state senators can block majorities), and a historical premise (it was a political deal, not a principle). Let me answer each, then add three facts the critics usually leave out.

Define the terms: democracy, republic and federation

The argument rests on a word. "Undemocratic" assumes the Senate was meant to be a democratic body in the sense of equal individual representation. It was not, and it was never sold that way.

A democracy, in the sense the critics mean, is a system in which the national majority of individuals rules directly or through representatives apportioned by population.

A republic, in the Founders' sense, is government by representatives chosen by the people, with powers limited and divided. Madison distinguished the two in Federalist 10 and Federalist 14, and the Framers chose the republic on purpose.

A federation is a union of political communities that keep their own existence and some of their own sovereignty. In a federation, the members are represented, not only the individuals.

The United States is all three in different parts. The House is the democratic branch: seats apportioned among the states by population, every two years. The Senate is the federal branch: each state, as a state, gets two votes. The Presidency is chosen through the Electoral College, which blends the two. Calling the Senate undemocratic is like calling the House unfederal. True, and beside the point.

Answer one: it was a principle as well as a bargain

The critics are half right that the equal Senate was a bargain. The Virginia Plan, presented on May 29, 1787, proposed representation by population in both houses. The small states answered with the New Jersey Plan on June 15, which kept one state, one vote. The convention deadlocked for weeks. Roger Sherman and Oliver Ellsworth of Connecticut pressed the compromise that now carries their state's name: population in the House, equality in the Senate. It passed on July 16, 1787, by five states to four, with Massachusetts divided. The story is told in full in The Connecticut Compromise Passed by One Vote on July 16, 1787.

But a bargain can rest on a principle, and this one did. The principle was that the states were not administrative districts. They were political communities that existed before the Constitution, had fought the Revolution as states, and were being asked to surrender part of their sovereignty to a new national government. They would not do it without a guaranteed voice in that government as states.

Federalist 62 says this plainly:

the equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty.

Read that carefully. The equal vote is a recognition of what the states kept and an instrument for keeping it. It is a structural guard for federalism itself. Without it, the larger states could, by simple majority in both houses, steadily enlarge national power at the expense of all the states. With it, any expansion of national power has to win the consent of a body where Delaware counts as much as Virginia.

Answer two: the Constitution protects the equal Senate above almost everything else

If the equal Senate were a mere wartime truce, you would expect the Framers to leave it easy to change. They did the opposite. Article V, which lays out how the Constitution may be amended, ends with this proviso:

and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

That is the only permanent entrenchment left in the Constitution. The other one, protecting the slave trade until 1808, expired on its own terms. Everything else, including the Bill of Rights, can be changed by two-thirds of Congress and three-fourths of the states. Equal suffrage in the Senate cannot be taken from a state without that state's own consent.

So when a critic says the Senate should be changed to reflect population, he is not proposing an amendment in the ordinary sense. He is proposing that every small state agree to give up its own weight, or that the country find some way around the one clause the Framers locked. The text does not leave room for doubt about how seriously they meant it. For how the amendment process works more broadly, see A Convention of States Is the Founders' Safety Valve, Weighed Honestly.

Answer three: the Senate was built to slow the majority, and that was the goal

The critics' empirical premise is that senators from small states can block national majorities. Correct. That is the point. Every structural feature of the Senate was designed to make it a cooler, slower, longer-sighted body than the House.

Consider what the Framers wrote into Article I, Section 3. Six-year terms, three times the House's. Staggered elections, so only a third of the seats turn over at once. A higher minimum age (thirty against twenty-five) and a longer citizenship requirement (nine years against seven). Originally, election by state legislatures rather than by the people directly, which the Seventeenth Amendment changed in 1913.

Federalist 63 explains the purpose: the Senate could serve as a defense to the people against their own temporary errors and delusions. And Federalist 62 adds a broader warning:

The facility and excess of law-making seem to be the diseases to which our governments are most liable.

The Framers had lived under state legislatures in the 1780s that issued paper money, suspended debts and rewrote laws session after session. They wanted a second chamber that could not be swept by the same wave as the first. Equal state representation is one more layer of that design. A law that wins a population majority in the House must also win a majority of states in the Senate. That is a double majority, and a double majority is harder to manufacture and harder to abuse.

Answer four: small states do not vote as a bloc

Here is the fact that most undercuts the "tyranny of Wyoming" story. The small states are not one interest. They do not caucus together. They do not share a party.

Look at the small states in recent decades and you find Vermont, Delaware, Rhode Island and Hawaii sending mostly Democrats to the Senate, while Wyoming and Alaska have leaned Republican. New Hampshire and Maine have swung back and forth. Montana has elected senators of both parties within living memory. A coalition of "small states" voting together against the big ones simply does not exist on the major issues of the day. The fights in the Senate run along party and ideological lines, not along a line between big and small.

That matters because the critics' picture assumes small-state overrepresentation tilts outcomes in one consistent direction. The record shows it scatters. What the equal Senate actually does is give regions with distinct economies, such as ranching, energy, fishing, farming and tourism, a voice they would never have in a chamber apportioned purely by population. That is not distortion. That is representation of a continent-sized country that is not one place.

Answer five: treaties, appointments and the case for a deliberative body

The critics are most worried about the Senate's special powers under Article II, Section 2: advice and consent on treaties, which require two-thirds of the senators present, and on the appointment of ambassadors, judges and principal officers.

The Framers gave these powers to the Senate rather than the House precisely because the Senate was the smaller, longer-serving body representing the states as parties to the Union. A treaty binds every state as the supreme law of the land under Article VI. It makes sense that every state, as a state, should have an equal say in whether to accept it. The two-thirds rule for treaties was built to be hard, as Two-Thirds of the Senate, How the Treaty Clause Was Built to Be Hard shows in detail.

As for judges, the critics complain that a body weighted toward small states confirms life-tenured judges. But the confirmation power is shared: the President nominates, and the President is chosen by an Electoral College in which the large states carry most of the weight. The two institutions check each other. Neither the big states nor the small states can install a judiciary alone.

The reapportionment cases do not help the critics

The strongest-sounding piece of the critics' argument is the Supreme Court's "one person, one vote" line of cases in the 1960s, which required state legislative chambers to be apportioned by population. If equal representation is required in state senates, why not in the U.S. Senate?

Because the Constitution says otherwise, in so many words, and the Court said so in those very cases. The Court's reasoning was that counties and districts are not sovereign; they are subdivisions created by the state for its own convenience. States are not subdivisions of the nation. They predate it, they ratified it, and the Constitution expressly gives them equal representation in the Senate. The federal analogy was argued and rejected. A state's counties never fought a revolution as counties. The thirteen states did.

What changing it would actually do

Follow the critics one step further than they usually go. Suppose the Senate were apportioned by population. What would be left of it? A second House with longer terms. The largest handful of states would control both chambers whenever they agreed. The double majority would collapse into a single majority counted twice. The states would lose the last institutional guarantee that national power needs their consent.

And then what? The next complaint is already written. With both chambers apportioned by population, the Electoral College becomes the next target, and after that the requirement that three-fourths of the states ratify amendments, which is surely also undemocratic, since thirteen small states could block a change the national majority wants. Pull the thread and the federal union becomes a unitary state with fifty regional offices. The Framers saw that road and posted a sign at its entrance in Article V.

If you want to see how the House and Senate divide their work in practice, the site's Congress page and the find your representatives tool show who speaks for your state in each chamber. Your two senators speak for your state as a state. Your House member speaks for your district's population. That is not a contradiction. That is the design.

The case in brief

1. The Senate was never meant to be the democratic branch; the House is, and the Senate represents the states as political communities in a federal union.
2. The Connecticut Compromise of July 16, 1787 was a bargain resting on a principle, which Federalist 62 calls a recognition and instrument of the sovereignty the states kept.
3. Article V makes equal suffrage in the Senate the one provision no state can lose without its own consent, which shows how seriously the Framers meant it.
4. Small states do not vote as a bloc; the equal Senate gives distinct regions and economies a voice, and its slowness is a deliberate guard against hasty law.
5. Apportioning the Senate by population would turn a double majority into a single one and leave the states with no guaranteed voice in national power.

What you can do: read Article I, Section 3 and the last clause of Article V on the site's Constitution page, then look up both of your senators and how they voted on the last treaty or nomination.