Senate

A senate is the upper chamber of a bicameral legislature: a body designed to review, delay, and sometimes block what the popular chamber has passed. The United States Senate seats two members from each state regardless of population; the Canadian Senate seats appointed members allocated by region; the Roman Senate, from which all of them take their name, was an assembly of former magistrates whose authority rested on standing rather than election.

Conservatives value senates for the reason their critics distrust them. A senate exists to interrupt. Its purpose is to slow the passage of law long enough for consequences to become visible, and to give minorities — of region, of province, of state — a hold on legislation that a chamber apportioned purely by population would deny them.

Key Takeaways

• The name descends from the Roman senatus, from senex, “old man”: a council of elders whose weight came from experience rather than from a mandate.
• The United States Senate was settled by the Connecticut Compromise of 16 July 1787, which paired equal state representation in the upper house with population-based representation in the lower.
• Senators were chosen by state legislatures until the Seventeenth Amendment, ratified 8 April 1913, moved the choice to direct popular election.
• Canada’s Senate, created by the British North America Act of 1867, is appointed rather than elected and organised by regional division rather than by province alone.
• Critics argue that equal representation of unequal populations is indefensible: Wyoming’s roughly 590,000 residents and California’s 39 million each return two senators.

History And Context

The Roman Senate began, by tradition, as an advisory council of one hundred heads of families under Romulus, and by the middle Republic had become the governing institution of the state. It did not legislate in its own name. It issued the senatus consultum, formally advice, which magistrates followed because the body issuing it contained every man who had held high office. Its authority was auctoritas — weight — as distinct from potestas, the formal power held by magistrates, and imperium, the power of command. The distinction is the origin of the idea that a second chamber restrains by standing rather than by force.

The American framers built deliberately on the precedent. The Virginia Plan proposed both chambers apportioned by population; small states refused, and the Convention deadlocked through June 1787. Roger Sherman and Oliver Ellsworth of Connecticut carried the compromise on 16 July by a single state’s vote. Federalist Nos. 62 and 63 — attributed to James Madison, though Hamilton’s hand in No. 63 has been disputed since the eighteenth century — defended the resulting Senate as a check against the impulse of the moment and against legislation passed by transient majorities.¹

The Canadian founders faced the same problem in different terms. At the Quebec Conference of 1864 the Maritime colonies would not enter a union in which representation by population left them permanently outvoted by Canada West. The Senate created by the British North America Act, 1867, gave equal seats to regional divisions — Ontario, Quebec, and the Maritimes, with the West added later — and made appointments by the Governor General on the Prime Minister’s advice, for life until a 1965 amendment set retirement at seventy-five.⁴

Direct election changed the American chamber’s character. Before 1913, senators answered to state legislatures and represented state governments as institutions. After the Seventeenth Amendment they answered to state electorates, and the federal structure that equal representation was meant to protect lost its clearest defender.

The Conservative Position

The conservative case for a senate rests on the distinction between the will of a majority at a moment and the settled judgement of a people over time. Edmund Burke’s argument that a representative owes his constituents his judgement rather than his obedience describes the office a second chamber institutionalises.² A body with longer terms, staggered elections, and no obligation to face the whole electorate at once can afford to reach an unpopular conclusion.

The second argument is federal. In a union of states or provinces, the smaller members enter on terms that protect them from permanent subordination. Strip that protection and the union becomes a unitary state with decorative subdivisions. Conservatives hold that the bargain was the price of the union and cannot be revised unilaterally by the party that has since grown larger.

The third argument is procedural. Two chambers with different bases of election require agreement between differently constituted majorities, which raises the cost of passing law. Conservatives count that as a feature. Friedrich Hayek argued that the danger in modern democracies is not too little legislation but unlimited legislation — a legislature that can enact anything a temporary majority wants, unconstrained by any higher rule.³

Conservatives split on reform. Canadian conservatives have long argued for an elected Senate: the Reform Party’s Triple-E proposal of the late 1980s — elected, equal, and effective — was a conservative programme, and the Supreme Court of Canada held in Reference re Senate Reform (2014) that such changes require substantial provincial consent. The disagreement is about how a senate should be composed, not about whether one should exist.

Differing Positions

The strongest objection is arithmetical. Equal state representation gives a Wyoming voter roughly sixty-six times the Senate weight of a Californian, and the disparity has grown as population has concentrated. Critics argue that no defensible principle assigns political power to land rather than to people, and that the Senate’s composition now blocks legislation supported by large national majorities.

A second objection targets appointment. Canada’s Senate has been criticised since Confederation as a chamber of patronage; expense scandals in 2012 and 2013 revived the case for abolition, which the New Democratic Party has adopted as policy. Unelected bodies with the power to delay legislation, on this view, lack the standing to use it.

A third argument holds that senates entrench historic settlements against present majorities. The United States Senate’s rules — the filibuster in particular, requiring sixty votes to close debate on most legislation — mean that senators representing a minority of Americans can stop a bill indefinitely. Reformers propose abolition, proportional reallocation, or restriction to a suspensive veto of the kind the Parliament Acts of 1911 and 1949 imposed on the House of Lords.

Conservatives answer that a chamber which merely mirrors the lower house has no reason to exist, and that the objection to senates is at bottom an objection to any check on a majority that currently expects to win.

References

1. James Madison, The Federalist, Nos. 62 and 63 (New York, 1788).
2. Edmund Burke, “Speech to the Electors of Bristol,” 3 November 1774, in The Works of the Right Honourable Edmund Burke (Bohn, 1854).
3. F. A. Hayek, Law, Legislation and Liberty, Volume 3: The Political Order of a Free People (University of Chicago Press, 1979).
4. Peter H. Russell, Canada’s Odyssey: A Country Based on Incomplete Conquests (University of Toronto Press, 2017).