Washington's House of Lords

Sceptical founding father: Alexander Hamilton opposed the Senate as anti-republican

America's healthcare debate is being played like a tennis match, bouncing from the Senate to the House and back again. Now it is back in the Senate, as the United States tries to end its status as the only advanced economy without universal healthcare for its people.

One hundred senators from 50 states will decide what lives and what dies, healthcare wise. With so much at stake, it makes sense to ask: who are these 100 senators? Might that give us a clue as to what to expect from America's upper chamber?

For starters, this "representative" body hardly looks or thinks like the rest of the nation. Only seventeen are women, while the United States is majority female. Only five are Hispanic, black, or Asian American, even as the nationwide melting pot has become one-third minority. A senator's average age is an elderly 63 years old, and most are wealthy millionaires. A famous 19th-century aphorism said, "It is harder for a poor man to enter the United States Senate than for a rich man to enter Heaven," and things are hardly different today.

The senescent senators already have great healthcare benefits too, even while tens of millions of Americans do not. So this powerful legislative body debating healthcare for the entire country is a patrician gerontocracy more closely resembling the ancient Roman Senate than a New England town meeting.

But it gets worse, for those who are hoping that majority rule might end this healthcare nightmare. With two senators awarded per state, regardless of population – a legacy of the deal struck in 1787 partly to keep the slave-owning states from exiting a fledgling nation – California, with more than 36 million people has the same number of senators as Wyoming, with a half a million.

That disproportional allocation has only grown more acute over time. When the Senate was created, the most populous state had 12 times more people than the least populous state; now it has 70 times more people. In the 1960s, the Supreme Court established the groundbreaking principle of majority rule based on "one person, one vote," meaning that all legislative jurisdictions must be equal in population. Yet the US Senate completely violates this fundamental principle every day it is in session. As a result, the 40 Republican senators represent a mere third of the nation, meaning Republican voters have more representation than everyone else.

This over-representation is bad enough, but it gets even worse. For the US has added an arcane layer of parliamentary procedure known as the "filibuster" that takes us out of the frying pan and into the fryer. The Senate's use of the filibuster means you need not a majority of 51 votes, but 60 votes to stop unlimited debate on a bill and move to a vote. So a mere 41 senators can kill any legislation. The 40 Republican senators representing only a third of the nation need to peel away a single conservative Democrat or independent representing a low population state like Montana, Nebraska or Connecticut to torpedo what the senators representing the other two-thirds of the nation want.

Given such a vastly malapportioned and unrepresentative Senate wielding its anti-majoritarian filibuster, it is hardly surprising that minority rule in the Senate consistently undermines majoritarian policy. Besides healthcare, senators representing a small segment of the nation have thwarted legislation on global climate change, renewable energy policy, sensible automobile mileage standards, cuts in subsidies for oil companies, tougher campaign finance reform, Congressional oversight of national security and war and more.

Minority rule in the Senate has been with the nation for a long time; in fact, it is widely blamed for perpetuating slavery for decades (between 1800 and 1860, eight anti-slavery measures passed the House, only to be killed in the Senate). For all these reasons, two of America's most revered founders, James Madison and Alexander Hamilton, opposed the creation of the Senate, with Hamilton warning in Federalist Paper no. 22 that equal representation in the Senate "contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail."

Even though Democrats have a solid majority in the Senate, a majority is not good enough. But Democrats do have one option: they could invoke another of the Senate's arcane rules, known as "reconciliation", which is used to implement the revenue and spending targets established in a budget resolution. Only 51 votes are needed for reconciliation, so the Democratic leadership could trump one arcane rule with another. If the Republicans cry foul, the Democrats should remind the public that there is nothing wrong with invoking simple majority rule in a body that is deeply unrepresentative and undemocratic by design.

The Senate has reached its Hurricane Katrina moment. The US remains the only advanced nation without healthcare for all, so it is not just the senators' credibility on the line if they fail to provide to all Americans with a similar level of healthcare benefits that they themselves enjoy as senators. It is the very democratic legitimacy of the body in which they serve. How long are Americans going to ignore this constitutional defect?