Contemporary critiques of the United States Senate and American constitutional design often call for the abolition of the Senate outright (as Richard N. Rosenfeld advocated in Harper’s (May 2004). Such arguments, Ari Berman’s analysis of “the Republican party’s assault” on “the will of the people” in the past three decades. in Minority Rule (Macmillian, 2024), tend to emphasize the anti-democratic place of Revolutionary era arguments for the Senate. I aim here to imagine how Publius (whether Madison and/or Hamilton) would reply, based on the arguments of Federalist Nos. 62–63.
Rosenfeld’s foundational, polemical indictment of the Senate casts it as an intrinsically and unavoidably anti-democratic institution that invalidates America’s claim to being a true democracy. He highlights what he calls its anti-democratic core: the structural malapportionment of the Senate: granting two senators to each state regardless of their population cannot but be a violation of the principles of proportional representation and basic political equality. For Rosenfeld, the design violates the core democratic principle of “one person, one vote” by giving citizens of small states vast, disproportionate voting power compared to citizens of populous states. He also stresses the path dependency behind this arrangement: the Senate and its equal membership based on state membership in the union rather than on population is not, he aims to show, grounded in political philosophy but in expedience. Specifically, he shows (or seeks to show) that equal state representation was not born out of high democratic ideals but an extortionist concession made at the 1787 Constitutional Convention to appease small states (in “the Great Compromise”).
Finally, Rosenfeld argues that the very existence of an Upper House is out of keeping with modern and contemporary democratic-republican state-building: the U.S. Senate is an anomaly among modern western democracies, which either lack a upper house or restrict its power to advisory or secondary roles (like the British House of Lords). For Rosenfeld, the only meaningful remedy for these inherent ills in the very idea of a Senate is, in light of the explicit prohibition on amending equal state suffrage in Article V, is to abolish the Senate altogether can realize authentic democratic self-governance.
In his recent book, Ari Berman expands on this structural critique, examining how the Senate acts as the structural centerpiece of a broader system of entrenched counter-majoritarian political power in contemporary power politics in the United States. He argues that the Senate does not operate in a vacuum; rather, equal state representation interacts with the Electoral College and the federal judiciary to create a self-reinforcing cycle of minority control. A minority of the national population can elect a majority of the Senate, which then confirms Supreme Court justices appointed by presidents who (in [up to the date of publication] two of the prior seven elections) lost the national popular vote.
To make his case, Berman shows how geographic polarization makes the Senate’s structural bias worse today than in 1787. As the population increasingly concentrates in urban areas in fewer states, a conservative, rural minority commands structural dominance in the chamber. Further, beyond the constitutional composition of the Senate, Berman highlights supermajoritarian procedural mechanisms like the filibuster (which, though not unconstitutional is also not a constitutional mechanism) . This allows a subset of senators—representing a tiny percentage of the total American population—to block popular legislation supported by broad national majorities. As a result of these developments, Berman argues, the United States now faces a crisis of legitimacy: a system incapable of translating popular majorities into legislative action, thereby eroding public trust in democratic institutions.
How might Publius respond to these attacks and how might such a response be relevant for contemporary debates, in particular those inquiring into the relevance of the American Experiment for European democracy? Most especially what does the principle of federalism as Publius defends it entail for the democratic republican character of the European Union and its member states, in the specific context of the Upper House and its avowedly antimajoritarian (if not antidemocratic) effects?
To begin, let us note that it seems particularly damning that, as Rosenfeld notes in his 2004 essay for Harper’s, at the Constitutional Conversation Madison himself vigorously argued against equal representation by state in the Senate before turning out to defend the principle in Federalist (if he is represented by Publius in Federalist 62. But this misses the fact that the logic of Publius’s arguments in Federalist defend the Senate on republican, structural, and institutional grounds precisely aware that he needs to defend the highly imperfect Great Compromise and not some fundamental and abstract political principle. It would take more time and space than I have to here to justify precisely how and why the debates surrounding the Great Compromise are relevant for current debates about political representation in Brussels. Yet, I want at least to suggest, the way Publius thinks about and ultimately justifies the violation of the “one person one vote” principle of democratic representation in the decision to give each state the same number of Senators is directly relevant for debates about European integration. For, at bottom, the EU is not and will never be some ideally designed democratic republic; it too is result of a “Great Compromise” between the (national) state sovereignty of its member states and the perceived benefit, or even need, of a common market.
In this light, let us note how Publius addresses the exact issue of unequal state representation in No. 62: he openly concedes that equal representation in the Senate is the result of compromise rather than political theory. However, he argues that the choice was not between ideal democracy and an imperfect Senate, but between accepting equal representation or having no Union at all. Sound familiar? I would say what Publius argues for a federal republic of the (rather than these) United States of America is precisely the case for whatever government is constituted in (as it happens) Brussels.
Further, Publius argues that a single majoritarian house (the House of Representatives) is vulnerable to “the impulse of sudden and violent passions” or factious majorities. The Senate serves as a vital check, requiring dual approval (both popular majorities in the House and state majorities in the Senate) before a bill becomes law. Here too, the implication is clear: the revolving EU Presidency and the “professionalized” Council perform for the Union what the Senate and its staff was meant to provide for the Early American Republic. What I mean is: though neither the European Presidency nor the Council of Europe itself is functionally or representatively equivalent to the United States Senate, each body shares with the Upper House of the United States Congress both the key features that led Antifederalists to denounce the Senate (it is not grounded in direct representation, it does not attempt to proportion representation on the basis of population, it is not directly accountable to “the People”) and the key features that Publius cites in defense of the Senate: chiefly, its check on “violent passions” of the sort that one can expect to find more immediately represented in the European Parliament.
Finally, Publius reasons, while it is undeniably true that a second chamber leads to inefficiency, a constantly shifting legislative body creates “mutable policy”. Rapid, erratic lawmaking rewards the “moneyed few” and confuses ordinary citizens; the Senate and an upper body generally exists specifically to slow down legislation and foster legal predictability. The applicability of this claim to both current American politics and the volatile politics of the European Union and the popularity of nativist and localist parties in each theater of democratic politics seems to me quite clear and almost undeniable.
Shifting to Federalist 63, we see how Publius defends the Senate’s longer, six-year staggered terms as essential to national reputation and long-term planning. While the institutional design and the details of electoral practices differ, Publius here responds to Berman’s concern about blocking the “will of the people” in a way that applies to the function of the Council and the EU Presidency. These bodies, like the United States Senate, we can see Publius as arguing, acknowledge and embody the fact that the public will is not always synonymous with the public interest in moments of temporary passion or misinformation. In each case “the upper body” is designed to allow “the cool and deliberate sense of the community” to prevail over momentary impulses. Finally, as Publius asserts, a rapidly turning majoritarian assembly cannot maintain consistent foreign relations or institutional expertise. Long terms provide stability and respectability in the eyes of foreign powers. In a context where the EU and its member states must navigate a complex environment that features an erratic and unreliable but ostensibly allied global superpower (the United States), a “new cold war” with an aggressive Russia fighting a war of choice on its southeastern border, and a relationship of rivalry and suspicious collaboration with a maybe-no-longer-second superpower in China, Publius’s defense on an austere upper house makes as much sense for contemporary Europe as it did for the Early American Republic.
In short, it is true that many remain convinced that the Framers’ fear of majority tyranny was understandable in 1787, while the actual crisis of the 21st century both in the United States and in the EU and its member states is minority tyranny, which is a dynamic Publius underestimated when designing a government that can be systematically captured by a numerical minority. All the same, I think we should pause to consider how and why Publius would argue today as in the Federalist papers, that such a view confuses a pure majoritarian democracy with a constitutional republic. The U.S. Constitution was intentionally structured to prevent raw majoritarian rule, which the Framers viewed as historically prone to instability, demagoguery, and decay. Publius had good reason, notwithstanding the concern about rural/small-state dominance, to emphasize that a federal constitutional republic will always be and have to maintain itself as a union of distinct states, not a single consolidated nation. Further, Publius is right to warn that removing the bicameral check of some sort of upper body eliminates the primary institutional break on impulsive national lawmaking, creating an unstable legal and diplomatic environment, especially as regards international relations.
