As the confirmation of Justice Brett Kavanaugh made its painful way through the Senate, a number of liberals began to make an important discovery: The U.S. Senate is undemocratic. Small states get the same quantity of senators as large states. It's often added that the ratio of population between the largest and the smallest states was "only" 12 to 1 when the Constitution was first adopted. Now it is 68 to 1. (California to Wyoming, in case you're counting.)
Dissatisfaction with this aspect of constitutional design fits in with leftover frustration over the Electoral College in 2016. Together these nonmajoritarian flaws are breeding demands for change. Something must be done, the critics say, to avoid rendering the Supreme Court, presidency and perhaps the entire Constitution illegitimate.
There's nothing incorrect about the objections. The design of the Senate is anti-democratic. In fact, it's so undemocratic that it would be unconstitutional if it were used by the states. After the Supreme Court adopted the one-person, one-vote principle in the 1960s, states were obligated to apply a proportional method for representation of their own senatorial districts.
However, the equal protection clause of the Constitution doesn't apply to the Senate itself. That's because the design of the Senate is baked into the Constitution — and it was baked in long before the equal protection clause was even imagined.
But here's the thing: The Constitution was designed precisely so that no one would be able to do anything about the undemocratic Senate. Almost uniquely among constitutional provisions, and unlike the Electoral College, the assignment of two senators to every state regardless of population is essentially unamendable. The Constitution specifically says that states can only lose their Senate representation with their consent. That's never going to happen.
How can I say that with such confidence? Because the fight over the undemocratic Senate was already the central issue in the constitutional convention in the long, hot summer of 1787 in Philadelphia. The nonrepresentative design was a source of outrage and profound frustration to James Madison, the primary architect of the Constitution, and the other representatives of large states like New York, Pennsylvania and Virginia.
The small states made equal Senate representation into the linchpin of their willingness to join the Constitution. They anticipated staying small. They anticipated future efforts to strip them of their Senate representation. And they made sure those would never succeed.
To understand what happened, you have to start with Madison's initial constitutional blueprint, which was introduced in the first few days of the convention and dubbed (fittingly enough) "the Virginia plan." Madison called for two houses in the legislature. He assumed that both would be allocated proportionately according to the population of the states.
