The Supreme Court is the real Senate — for now

On the rise and fall of the Supreme Court's legislative power

The Capitol Building and the Supreme Court.
(Image credit: Illustrated | BrianPIrwin/iStock, zrfphoto/iStock)

The American Constitution is a fossil record. Beneath the rocky soil one finds layer upon layer of strange deposits, atavistic survivors of bygone eras, such as the Electoral College. One of the most curious specimens preserved in the sediment is the United States Senate.

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.

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Matthew Walther

Matthew Walther is a national correspondent at The Week. His work has also appeared in First Things, The Spectator of London, The Catholic Herald, National Review, and other publications. He is currently writing a biography of the Rev. Montague Summers. He is also a Robert Novak Journalism Fellow.