I regret to inform you that Noah Feldman is Doing Reflexive Contrarianism again:
I feel bad dunking on Noah Feldman, he lives with a terrible curse (he must publish a terrible take every month or else be transformed into a toad) pic.twitter.com/0kRCM1wHjg— Hannah Mullen (@hannnahmmarie) March 25, 2021
And this might be his hottest take yet! He begins with a selected history lesson:
In the decades before the Civil War, it was the recurrent political manifestation of the struggle over slavery. In the antebellum era, the admission of new states constantly threatened to disrupt the balance of the Senate — and hence the balance between free and slave states. For more than a generation in that era, the “answer” was to perpetuate compromise by admitting states in pairs, one slave and one free.
The point of remembering this historical background is not that the U.S. is now on the verge of civil war or anything like it. But the prospect of a new state shows you how the filibuster isn’t just any Senate rule: It’s a quasi-constitutional feature of the U.S. government. Eliminating it would change the rules of the system in far-reaching ways.
You should note what he does not mention — Republicans after the Civil War creating a bunch of new empty states for partisan purposes. (At the time of statehood Wyoming had 21,000 residents. To put this in perspective, there are 31, 041 undergraduates matriculating at the university where I currently teach.) That seems like the more relevant historical fact! Also, the idea that the routine supermajority version of the filibuster, which is younger than Billie Eilish, has “quasi-constitutional status” is absurd. If it was true, all of those tiny western Republican states wouldn’t exist.
The argument for D.C. statehood has two different faces, each important. On the one hand, it is a moral argument for the equal suffrage of nearly 700,000 D.C. residents — nearly half of them Black — who currently can’t vote in meaningful congressional elections.
That seems dispositive to me!
On the other, it is also a partisan effort designed to give Democrats two more Senate seats. Under the Constitution, every new state gets two senators, regardless of the state’s size. By population, D.C. would be one of the tiniest states — bigger than Wyoming and Vermont, smaller than Alaska and South Dakota. But it would automatically get two senators, just like California (with around 40 million people) and Texas (nearly 30 million).
I’m guessing we’re not going to get an argument about why residents of D.C. should be treated differently than those of Wyoming and Vermont.
Democrats are ordinarily quick to point out the fundamentally un-democratic nature of the Senate, which demolishes the principle of one-person-one-vote — and has since day one. James Madison left the 1787 Philadelphia constitutional convention deeply disheartened by the way the small states had refused to budge when confronted with the undemocratic nature of their demand to be treated the same as large states.
This is the silliest kind of “gotcha” reasoning imaginable. The Senate will be fundamentally undemocratic whether or not D.C. is granted statehood or not. Moreover, D.C. statehood would make the Senate marginally less undemocratic by making it slightly less massively tilted toward overwhelmingly white rural states.
But when it comes to D.C., Democrats are prepared to embrace the undemocratic idea that 700,000 people should get two senators — there is no prospect of changing the two senators rule. The partisan rationale might be cloaked in the moral argument for equal voting rights for D.C. residents. The political reality, however, is that Democrats are frustrated with Republicans’ lopsided advantage in the Senate, where the 50 Republicans represent some 40 million fewer people than the 50 Democrats do. D.C. statehood is supposed to fight fire with fire.
So, yes, killing the filibuster would make the undemocratic Senate slightly less undemocratic. On the other hand, using the opportunity to add another state on a straight partisan vote would invite more extreme polarization, not less.
At no point does he ever get to an argument for why granting D.C. statehood would make the Senate less democratic, or why making the Senate slightly less heavily titled towards Republicans would be bad — he just concludes that majority rule in the Senate would be bad because it would allow Democrats to do things the Republican minority doesn’t favor. I think to summarize the argument is to refute it.