Some arguments are not merely wrong; they are evil.
Eric Orts is a professor in the Legal Studies and Business Ethics Department at the Wharton School of the University of Pennsylvania. He is a progressive, and like most progressives he chafes at the checks on the unbridled power of numerical majorities built into the United States Constitution. On Wednesday Professor Orts took to the pages of The Atlantic to vent his spleen against the unfairness of one of those checks, the provision that gives each state equal representation in the Senate. It is not fair, declares Orts, for Wyoming to have the same representation in Senate as California, because Wyoming’s population is a small fraction of California’s.
Set aside for the moment the merits of Orts’ argument** and consider his proposed solution. According to Orts, all that is necessary to fix this “problem” is for Congress to pass a statute providing for proportional representation in the Senate. There is an obvious problem with Orts’ proposal. Any such statute would conflict with Article I of the Constitution, which provides that that each state shall have two Senators, and Article V which states that the two-senator rule cannot be amended.
No problem, says Orts.
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.
Orts’ seems to believe Congress can “fix” the Constitution through legislation. That a professor of legal studies no less would make this argument is breathtaking. Moreover, his proposed solution skips over the fact that the Constitution explicitly states “The Senate of the United States shall be composed of two Senators from each State.” He has an answer to this too:
Constitutional originalists will surely argue that the Founders meant “equal suffrage” in Article V to mean one state, two senators, now and forever. But the Founders could never have imagined the immense expansion of the United States in terms of territory, population, and diversity of its citizens.
No, anyone who reads the document – not just constitutional originalists – knows without the slightest doubt that it provides unambiguously for one state, two senators. Whether the founders could have imagined future events has no bearing on the meaning of the text. There is no room for argument about what the text means.
Here is where we get into the evil part. Orts is not calling for a constitutional amendment. Nor is he calling for a creative interpretation of the existing text. He argues that we should simply ignore the text because he and his friends don’t like it. The rule of law is built upon a foundation of language. Laws, after all, can be expressed in nothing else. When professors call for us to ignore the express unambiguous text of the Constitution, they are calling for us to abandon the rule of law. And that is evil.
Of course, we should not be surprised. As a progressive in good standing Orts believes that power is the only thing that matters. Justice Brennan once said that he only thing that matters in Constitutional law is the ability to count to five. Brennan meant that when the actual text of the document the court is purporting to be interpret (i.e., the Constitution) interferes with achieving the result progressives such as he want, well then, so much the worse for the Constitution, provided he was able to cobble together five votes for the progressive policy choice. Brennan’s approach to constitutional law is profoundly cynical, dishonest, and, yes, evil.
Orts is a Brennan-type progressive. He believes if he can get five members of the Supreme Court to bite on his “two does not really mean two” argument, he can achieve in the courts what he could never hope to achieve in the political process.
But attempts to undermine the rule of law carry the seeds of their own destruction. Sooner or later the people begin to trip to the fact that it is all a big put up job. And when that happens you get civil war. We are already in a cold civil war. With progressives like Orts continuing to call for the exercise of raw power outside of legitimate constitutional processes, how long before the war heats up?
**The first clause of Article I, Section 3, which states: “The Senate of the United States shall be composed of two Senators from each State.” Anyone who has studied the constitutional convention for ten seconds knows the origin of this clause. The small states were afraid they would be overwhelmed and powerless if representation in the Congress were based strictly on population. They went so far as to threaten to bolt if this issue were not addressed to their satisfaction. After much debate during which the convention teetered on the edge of failure, a compromise (the so-called “Connecticut Compromise”) was reached. The delegates proposed a bi-cameral Congress with representation in the House of Representatives allocated according to population and representation in the Senate equal among the states. Arguably, the “equal suffrage in the Senate” clause is the most important clause in the entire Constitution. Of all the provisions in the document, it alone is shielded from amendment by Article V, which states: “no state, without its consent, shall be deprived of its equal suffrage in the Senate.” Thus, as one commentator has already said, equal representation for small states in the Senate is an important feature, not a bug, of the Constitution. Indeed, without this feature, there almost certaintly never would have been a Constitution to begin with.