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Population of the American states and the Senate

By Jack M. Balkin

Wikipedia has a very helpful entry on the population of the US states. One gets to 50% of the total population, according to 2008 census estimate, with the nine largest states, California, Texas, New York, Florida, Illinois, Pennsylvania, Ohio, Michigan, and Georgia. (Note, though, that the percentages are calculated by including the populations of US territories such as Puerto Rico and the District of Columbia, which, of course, have no voting representation in Congrees.) So one might divide the Senate into two groups, one of 18 senators who represent a majority of the population, the other of the remaining 82 senators who represent slightly less than 50% of "we the people." If one adds four more states, North Carolina, New Jersey, Virginia, and Washington, one reaches 60% of the total population, and adding yet eight more states, ending with Minnesota, reaches 75%.

So what this means is that 42 senators represent 75% of the population, while the remaining 58 (beginning with Colorado and going through Wyoming) have just short of a filibuster-proof majority in the Senate while representing, by definnition, less than 25% of the total population. It is possible, of course, that 2010 census figures will demonstrate that, say, it would take the top 22 states, with 44 senators, to get up to 75% of the population, so that the remainder of the population would have "only" 56 senators.

I suggest that there is no more merit to this configuration of power than there is, say, to the present allocation of veto power in the Security Council of the United Nations or the assignment of independent representation in the General Assembly, prior to 1989, to Ukraine or Byelorussia. All of these can be readily explained as the result of "necessary" compromises at the time of the formation of the institutions in question. But, of course, the same is true of the 3/5 compromise re the "representation" of slaves. The inability of the Security Council to reform itself, because of the assignment of veto powers, is a major problem with the contemporary United Nations. Ditto the Senate. Many people probably don't really care about the UN (and may even view it as basically illegitimate); they obviously don't really want a more "functional" Security Council. But can we afford the same complacence about the American government and the egregious Senate?

Full post as published by Balkinization on January 02, 2010 (boomark / email).