The Sieyèsian Case Against the US Senate

“Two horses put before the same carriage, made to pull in opposing directions…”

Over recent months, there have been rumblings of discontent on the American left about the United States Senate. One year on from Joe Biden’s election, much of his legislative agenda has been frustrated, principally by recalcitrant Senators from his own party and by Republican obstructionism. His efforts to change course by reforming the filibuster have for instance been scuppered by Senior Arizona Senator and fellow Democrat Kyrsten Sinema. But if the prospects of substantive Senate reform appear distant, several commentators have turned to a more radical option—abolishing the Senate altogether.

 

One figure who expressed strong views on the matter is the Abbé Emmanuel-Joseph Sieyès, the great French political theorist and statesman who marked the French Revolution. In 1795, as his fellow French republicans looked more and more at the US Constitution for an alternative to the centralisation of power they held responsible for Jacobin dictatorship, he offered an argument against bicameralism more relevant than ever to the present dilemmas of the American Senate.

 

Bicameralism and the separation of powers have come to be indelibly associated with the liberal tradition in constitutional thought. At least in their modern conception, upper legislative chambers are construed as a central guarantor of limited constitutional government. Chosen by different means than a directly elected lower house, they allow the cooler heads of more august statesmen to prevail, and act as a delay and break upon the demagoguery of ordinary democracy.

 

This is particularly true of the United States where, as James Madison explained, the Senate was designed to “proceed with more coolness, with more system, and with more wisdom, than the popular branch.” At the same time, as Madison famously wrote in Federalist No.51, by dividing legislative power between equal institutions, ambition could be made to counteract ambition. Where two chambers, which had to act together to pass legislation, checked by an executive veto, each branch would prevent the others from infringing upon its powers and assuming tyrannical power. This was the famous system of ‘checks and balances.’

 

Madison’s view of the Senate as a check by an aristocracy of talent and wealth upon the power of the people is, on its face, markedly undemocratic, and it has been the subject of much of the pushback by pundits in the latest round of debate on the institution. But the argument made in Federalist No.51 should also be challenged. As Sieyès argued, seeing the Madisonian system of checks and balances as the only possible separation of powers was not only deeply politically unimaginative, but dangerous.

 

Sieyès was one of the French Revolution’s most prominent personalities, and one of only a small band who survived through each epoch of the revolution as a major political player. In 1789, it was Sieyès’ pamphlet What is the Third Estate? which inspired the deputies of the Third Estate to reconstitute themselves as the ‘National Assembly,’ and in 1789-1793 he was a leader of the moderate center in French politics, and a (somewhat reluctant) republican who voted for the King’s execution in 1793. A survivor of the Reign of Terror, and a leader among the Thermidorians, Sieyès was nonetheless almost a lone voice against checks and balances in the 1795 constitutional debate. When he spoke out on 2 Thermidor Year III (20^th July, 1795), in a speech, typically known by historians as the ‘First Thermidorian Intervention,’ his attack on France’s new ‘balanced’ constitution was forceful, particularly in its condemnation of bicameralism.

 

It was political parties which Sieyès saw as the agent of the corruption and breakdown of the system of checks and balances. And he believed that institutions had to be adapted accordingly.

 

“If the two proxies charged with the same power remain independent,” he declared, “there is no longer any certainty in the course of political affairs; the two chambers will remain in conflict; and where there is political movement it is … because the system itself is altered, is lost.” Where two bodies shared in the legislative power and neither could exercise it without the consent of the other, they would alternate between gridlock, in which nothing could get done, and unity, in which the two chambers acted together, and the separation of powers gave way, “renew[ing] all the dangers of despotism.”

 

The latter situation, Sieyès argued, was unavoidable because even where the constitution frustrated it, political business would always need to be done. Turning to the experience of Great Britain (or, rather, Great Britain as imagined by political thinkers of the eighteenth century), he argued that observing the actual functioning of a system of checks and balances revealed that “where there is political movement it is because, in practice, neither counterweights nor balance really exist; the abuse and corruption of the system has produced the unity of action which we thought we were counteracting.”

 

In a particularly vivid analogy, Sieyès compared two legislative chambers with more or less identical competences to “Two horses put before the same carriage, made to pull in opposing directions. Despite their greatest efforts, the carriage will remain stationary unless a royal coachman takes the reins and brings them into unison.” Although Sieyès here used the corruption of parliament by the British King as his example, he was clear that his critique applied equally to the United States.

 

What was at stake was not exclusive to constitutional monarchies where the “royal coachman” might be an already existing King, but applied equally in republics and monarchies. Perennially gridlocked political institutions would inspire frustration with politics and politicians until, crying out for something to be done, the people would entrust power to a charismatic leader, usually holding executive power, who would overturn the constitutional order.

 

Were this vision not already familiar enough to congress-watchers, it was political parties which Sieyès saw as the agent of the corruption and breakdown of the system of checks and balances. Unusually for an eighteenth-century political thinker, Sieyès had a distinctive and sophisticated account of modern politics as party politics, and he believed that institutions had to be adapted accordingly. Contrary to Madison’s model, which presupposes that institutions populated by self-interested actors would always clash, Sieyès saw political parties as the force which would compel institutions supposed to be balanced against one another to cohere. By uniting into factions, partisans would subvert the system of checks and balances by working in tandem across institutions.

 

Where their conflict tended towards perpetual stalemate, moreover, the antagonism between them would only grow more dangerous, until “two parties, using the right to speak and to write to their full extent, take on the character of combatants in the state of nature.” Eventually, one would turn to extra-constitutional means to overthrow the other. This account is redolent of the current political moment, and may partly explain why an alliance of establishment politicians and disaffected voters could elevate an outsider promising to act as a results-oriented strongman to the head of the executive branch.

 

As Sieyès argued, seeing the Madisonian system of checks and balances as the only possible separation of powers was not only deeply politically unimaginative, but dangerous.

 

Sieyès’ alternative model, which he either termed ‘concourse’ (in contrast to ‘balance’) or ‘Organised Unity’, was characteristically idiosyncratic. It followed a tripartite division of legislative competence between a popularly elected ‘Tribune’ and a seven-member plural executive simply called the ‘Government’ which could propose laws, but could not vote to implement them, and a larger Legislature, which could vote laws into existence, but could not propose them (an idea taken from James Harrington’s seventeenth-century utopia, Oceana).

 

Watching over these institutions, he placed a powerful constitutional guardian called the ‘Constitutional Jury’ (somewhat similar to a constitutional court) which would exercise an ex ante power of judicial review. Its power would, in turn, be limited by a decennial process of constitutional revision (avoiding the undemocratic consequences of the US Supreme Court’s monopoly of interpretation over an almost unalterable constitution). The effect of this system was that a division of power would be preserved without the system grinding to a halt.

 

Accepting Sieyès’ critique of bicameralism and checks and balances does not mean that we have to accept his alternative. We may, quite rightly, be suspicious at some of its less than democratic features, including his proposal that the upper, ‘deciding’ chamber be selected from France’s three major economic spheres (urban industry, agriculture, and the liberal professions) either through corporate election, or technocratic appointment.

 

But nor should we ignore his insights entirely. As the New York Times Opinion Writer Jamelle Bouie has recently argued, there is nothing wrong with legislative chambers like the Senate having robust processes of debate, but the point of political institutions is not merely to debate, but to act. As Sieyès recognised, the system of checks and balances is a hindrance to their doing so, whilst maintaining a separation of powers.

 

What he offered was not a perfect institutional remedy, but a different way of looking at how to organise the basic architecture of political life, too often taken as a settled issue. Whether it means abolishing the filibuster, transforming the Senate’s role as Sieyès might suggest, or abolishing it outright, it is clear that if it cannot pass the kind of transformative legislation needed to pull America back from the brink, an intransigent Senate will allow a coachman to take the reins who can direct both horses to their own ends.

 

Photo Credits: Portrait of the Abbé Sieyès (1825) from the British Museum, Public domain, via Wikimedia Commons.