Why does it continue to exist? With the ratification of the 17th amendment, the Senate’s raison d’être was eliminated. Bicameralism has always called for a body of common representatives elected by the people and a revising upper chamber of appointed grandees. The former, as constitutional theorists have long argued, are prone to enthusiasms that must be checked by the wisdom and prudence of the latter, even — indeed, especially — when doing so might prove unpopular. Having two distinct bodies that are both said to directly represent the will of the same electorate is on its face nonsensical. (This is the argument often made against reforms that would turn the British House of Lords into a purely elected body.) The few powers the Senate continues to enjoy might easily be given to the House — or dispensed with altogether. Indeed, the most important of these, the ability to confirm judicial and other presidential appointments, is becoming purely ceremonial.
This is not to suggest that we no longer have a de facto upper chamber. The real Senate of the United States meets not in the north wing of the Capitol but just across First Street. I mean, of course, the Supreme Court.
Why is this not explicitly acknowledged, I wonder? Are the nine not appointed rather than elected? And do they not legislate, at times clarifying, at other points frustrating the will of the two lower chambers? When we read about the outcome of a case before the court we are told how the justices “voted.” This should put paid to everything our middle school civics teachers tell us about the separation of powers and the disinterestedness of the judicial process.
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