All 100 senators have sworn an oath to be impartial jurors in the impeachment trial of President Donald Trump. Yet the chances that any senator will be genuinely impartial are so minuscule that they cannot be measured with any existing mathematical methods. As a result, despite overwhelming evidence—that continues to emerge, even as the trial begins—that the president committed high crimes and misdemeanors, the Senate will acquit Trump of the two articles of impeachment passed by the House of Representatives.
This trial is an affront to democracy. But, because it takes place in the Senate, it couldn’t be any different; the Senate is an anti-democratic institution, and it was designed to be. As a result, the most tangible steps that our elected representatives can take to restore American democracy involve reforming the Senate. And we needn’t look far for a model. We need merely follow the example set by the reform of the United Kingdom’s House of Lords.
For centuries, the House of Lords, composed of the Lords Spiritual (clergy) and Temporal (nobility), was more powerful than the House of Commons. The latter was an elected body, although the franchise was quite limited until a series of acts in the nineteenth century gradually expanded the electorate, and then a dramatic expansion in the twentieth century when women were given the right to vote.
The members of the House of Lords (called peers) enjoyed a large and permanent Conservative Party majority. Regardless of the wishes of the House of Commons, the Lords held veto power over bills passed by the “lower” house. As recently as the Marquess of Salisbury in 1902, prime ministers were chosen from the Lords. As more people gained the vote, the Commons gained power and prestige—but still, it remained subject to the reactionary will of the peers. Many dramatic historic battles resulted from the clashing desires of the Lords and the Commons. Perhaps this scenario sounds familiar to you, because we see it today between the Democrat-controlled House of Representatives and the GOP-controlled Senate.
But, the MPs resolved their problem by forcing the Lords to give up power in order to preserve the integrity of their auspicious body. In the early years of the twentieth century, the Liberal-controlled Commons battled the Conservative Lords. In a row over David Lloyd George’s “People’s Budget,” the Commons threatened to pack the House of Lords with Liberal peers unless the Lords relinquished power. In the Parliament Act of 1911, the Lords agreed that they could only delay legislation—they could no longer prevent its passage. In 1911, the Act allowed the peers to delay bills for three sessions and up to two years. The Act also revoked the authority of the Lords to reject money bills. After WWII, Clement Attlee’s Labour government reduced those periods to two sessions and one year, via the Parliament Act of 1949. The House of Lords lost its teeth.
By making the House of Commons the dominant governing body in the United Kingdom, the government enhanced democracy in its territory (notwithstanding its colonies and, to this day, the undemocratic government in the north of Ireland). The 650 members of the Commons are responsive to the people in a way that the Lords could never be. In this parliamentary system, the majority party or majority coalition is almost always in power (minority governments can occur, but they are rare and happen only in special circumstances). This model of democracy should serve the United States when we undertake the inevitable task of reforming our own system.
To be sure, the analogy isn’t perfect. The Senate is an elected body, and the House of Lords never was. Plus, the British Constitution is not a written document, and it is thus easier to reform. But that is a key point in itself: the United States is subject to a dictatorship of the Framers, who set a high bar for amending the Constitution (though admittedly not as high as the bar for amending the Articles of Confederation, which is one key reason why our first governing document failed).
The Framers designed the Senate to be anti-democratic. The body is the result of the so-called Great Compromise, that allowed less populous states and larger states to sign on to the same document. (A compromise for a similar purpose over a disagreement related to representation and taxation led to the compromise that resulted in the shameful “3/5 clause” that counted enslaved black people as 3/5 of a person, so we should be careful about lauding Constitutional compromises.) Until the 17th Amendment was ratified in 1913, voters did not directly elect senators; rather, state legislators chose the senators. The Framers did not trust common people to make intelligent, informed decisions when voting. Thus, they vested more power in the less democratic body.
According to the Constitution Center, James Madison argued in Federalist #39 that the House of Representatives represents “the people of the nation at large and the Senate represent[s] the residual sovereignty of the states” thereby making the government “part national” and “part federal.” Yet the small country comprised primarily of Thomas Jefferson’s idyllic virtuous small farmers is not the nation we know in 2020, and indeed, the Senate does not function in the way that James Madison—an opponent of the Great Compromise before he argued in favor of it—envisioned it.
Today we are reaping the whirlwind. The population of the United States is not evenly distributed over all fifty states, yet each state still has two senators. In terms of pure numbers, there is a substantial liberal or center-left majority in the US as demonstrated by the elections in 2016 and 2018 and virtually every opinion poll on Donald Trump. Vast numbers of those left-leaning citizens live in the northeast and on the west coast, with large pockets in urban centers throughout the country. Thus, like the House of Lords of old, the United States Senate has a built-in and nearly permanent Republican/Conservative majority. And this majority exercises veto power over legislation passed by the House of Representatives. The representatives of the minority thwart the will of the majority in the United States—the very definition of anti-democratic.
How can Americans reform our government in order to restore a semblance of democracy and regain our status as a shining “city upon a hill,” a model of democracy for countries around the world to emulate? Following the example of the UK, we must neuter the Senate, and give more power to the House of Representatives, the body that is closer and more responsive to the citizenry.
We could split up populous states such as California, Texas, Florida, New York, and Pennsylvania and continue to give each state two senators. Doing so will go a long way toward evening out the number of people each senator represents, and balancing out the electoral college in the process, so that my vote in New York counts the same as someone’s vote in Wyoming.
We could reform the Senate so that it only has the power to delay legislation from the House of Representatives, and cannot impede money bills, as the parliament of the UK did in 1911 and 1949. But without a simultaneous reform of the electoral college, a minority president could merely veto legislation passed by Congress.
Or we could scrap our system—and our Constitution—altogether and call a new Constitutional convention in order to create a government that fits the modern world that we live in. Despite the many scholars and pundits who laud the eternal wisdom of the Framers to create a Constitution that can evolve over time, we are still subjected to the “wisdom” of the eighteenth century when the country was comparatively tiny in terms of territory and population; when women and people of color were not citizens; when advocates for unregulated speech and guns could not foresee the Internet or automatic weapons.
We need a new Constitutional convention—and I challenge every candidate for president to stand up and declare that she or he will call for one if elected president of these United States.
In that new system, perhaps President Trump could receive a trial from an impartial jury. He won’t receive one as the system exists today—and our democracy will continue to wither on the vine as a result.