Interesting stuff, but I am a bit sad you got rid of the special amendment process. Single-subject limits are fun, even if a bad idea. :) Justiciability is also fun.
Anyway, in your last Senate comments post I left a comment with a lot of nonsense thoughts about the UK monarch's powers, it is reasonable you ignored it, but I'd like you to at least look at the things I said about party nominations being illegal, I think you could probably get legislation which mandates primaries overturned on 1A grounds, but I am unsure whether it actually exists, frequently there is at least a provision requiring a party to elect to use a primary.
I did read absolutely everything on that thread, I'm pretty sure! I ignored nothing. I just couldn't write about all of it because I learned from Part III that responding to every comment means three weeks and 15,000 words. :P
I do like the idea of killing primaries on 1A freedom of association grounds, but I think there's ample case law accumulated against it now. I'm not really sure what logical grounds that case law has for existing, but it seems to exist all the same, and makes this path complicated.
(If I'm forgetting anything in your earlier comments where you addressed this, I do apologize!)
"Single-subject limits are fun, even if a bad idea. :)"
I love this. I think I lean toward the contingent conclave solution for the hung election; you’ve done yeoman’s work on the electoral algorithmics but this is still long and complicated and has to get sold to voters someday. I now wonder how a state taking your refreshed principles of the houses of Congress and the Presidency on board ought to reform their own constitutions. Clearly their Houses can also simply get much bigger, with districts perhaps as small as 1000 in the small states. But who ought to elect the state governors, and who the state senators? It seems like the state house is the only entity available. Maybe they elect the senate, which then elects the governor, both under mechanisms intended to avoid essentially parliamentary outcomes.
I have wondered about how this might play out for states! It's not my intention to revolutionize state government, but it's a simple matter of fact that states have, throughout American history, moved to imitate the federal government. For example, when the Constitution instituted a four-year presidency, the one-year gubernatorial terms that were the norm in the Confederation pretty soon started to shift toward four-year terms. There can be no doubt that many would follow suit here as well. But I haven't given it all that much thought. My one interesting idea so far is mayors, who are to states what governors are to the nation. You'd have to somehow constitutionalize what makes a mayor, though, to prevent one party with control of state government from, say, taking away the charter of every city with an opposite-party mayor. But this seems solvable.
State senates are a very strange institution in themselves. They were already weird in many of the ways the federal senate was weird, and then Reynolds v. Sims exploded them completely. I honestly can't figure out why so many states still have them, except the federal-imitation thing. They aren't bound by entrenched constitutional provisions! They just like their senates, I guess! So I would hesitate to hazard much more than "mayors, maybe?" until I felt I understood them much better than I do.
You've taken great pain throughout this series to make sure your proposing sensible amendments that would do a great deal of good and be non-controversial enough to not face major backlash. I see it as going through company documentation or work instructions and cleaning up the garbage outdated things that are still there, or maybe using the exercise as an excuse to put in place some simpler workflows that make everyone's lives smoother.
I don't know how constitutional amendments work but I imagine they need to be voted on by the House and the Senate with a pretty high 'Yay' rate? Don't you think "look at the other person from your state. One of you is about to be out of a job" is a good way to get somewhere around 50 'Nay' votes right out of the gate?
I'm only at footnote 5 right now so maybe you address this later in the piece but I don't remember it from your first piece.
Yes, you're on to something. The Constitution proposes two methods for amending the Constitution, and only one of them has ever been used:
THE USUAL METHOD: The proposed amendment must win *two-thirds* in *both houses* of Congress. Then, on top of that, *three-quarters* of the states must ratify. Typically, this must happen within seven years of the amendment's proposal by Congress. (This isn't inherent to the process. It's just that most amendments today are proposed with a built-in time limit, because we are rightly embarrassed that the pro-slavery Corwin Amendment, proposed by Congress in a last-ditch attempt to stop the Civil War, is technically still pending). That's a lot of states to convince in seven years!
THE ALTERNATIVE METHOD: Two-thirds of the states may request a constitutional convention. The convention is then organized of delegates from the states, and that convention proposes amendments. Those amendments must be ratified by three-quarters of the states. Nobody ever does this because there's great fear of a "runaway convention". After all, the original constitutional convention was called to amend the Articles of Confederation (which required unanimity), and, instead, they invented a new Constitution, convinced the nation to ratify it (with just three-quarters of them in support), and destroyed the Articles. I don't think there's much risk of this today, especially given the three-quarters ratification requirement, but it still never quite comes together. Paulsen said in 2010 that 33 of 34 states had called for a convention, but I don't know whether they ever made it to 34, because the states involved are fractious and disorganized and many of them believe (wrongly) that they could strictly control their convention delegates and so they don't actually want a convention if there's any chance of a runaway.
Article V of the Constitution is famously bad. Ruth Bader Ginsburg said it was bad *and* Antonin Scalia said it was bad. Everyone agrees it should be hard to amend the U.S. Constitution, but that this is way too hard.
The only chance most of my proposals have is through the Alternative Method. The Senate will never support random-selection elimination of its current members, and the House will never support expanding the House by even a single seat (because any expansion dilutes the power of each individual representative). But a convention can do what it will, as long as the states support it.
Interesting! How would a state sign on to ask for a convention? Via a ballot initiative? The governor gets to just sign something? The state legislator? Their representatives in Congress? Orrrr…?
Color me impressed! "But simple majorities plus gerrymandered state legislatures will produce a partisan Senate hostage to small states," I thought, on seeing the suggestion of returning Senator selection to state legislatures. And then the rest of the proposal sets about solving exactly that problem. And solving it well. Your solution makes the system much more democratic (in the sense that political scientists use the term--you once called this something like republiquesqe) by being less simple majoritarian (what you call democratic).
We're sadly together in thinking that no Senate is better than the Senate as it stands now. This is the first solution I've seen that stays within the existing Constitution that convinces me we could get an upper chamber that substantively improves the functioning of our government.
If we were having a Constitutional convention and had some chance of making this real, I would become obsessed with the details and develop strong opinions about them. Because we aren't, I'll just say that I'm sure that enough smart people could improve the details somewhere, or make the language clearer, but that the principle underlying them strikes me as solid.
In terms of ratification votes, people like language that's simple, and this has a many fiddly bits that make a lot of sense but that many if not most people wouldn't bother to understand the point of. But getting *any* amendment passed seems like fantasy right now, so that's neither here no there.
I wonder if any system like this would also apply to your suggestion of having governors pick the president? Or for that matter, do you think this different version of the Senate would be better to pick presidents, or do you still think governors are the best option?
There are certainly resonances between this system and the gubernatorial conclave to elect the President: a requirement of consensus, the focus on breaking the power of party bosses, the restoration of privacy.
The thought has certainly crossed my mind that perhaps a healthy Senate would be more capable of electing the President, but a few things give me pause about proposing it: first, it would be awkward if I proposed having the President elected by a revitalized Senate and then the People decided to reject this proposal and accept that one, so we just ended up having the President elected by today's broken Senate. Second, if implemented, I would want to be sure that this proposal actually *works* before making another branch dependent on it. Third, the Senate will still have a small-state bias, and, while I think that's a good thing to have in the reactor core of the legislature, I'm hesitant to introduce that same bias into the executive branch. So, for now, I'm sticking with the guvs. Maybe 20 years after they implement all my amendments, we'd know whether we need to switch.
Great read, as always. Do you plan on crafting an Amendment for the Supreme Court? Like the Legislative and Executive branches, the Judicial branch is in rough shape at the moment, though not quite as bad since they aren't subjected to the ever changing whims of the electorate. I've got a couple thoughts on the matter myself.
I have concepts of a plan for the judicial branch! However, I mostly think it is mostly working at least a lot of the time, unlike Congress, so my concepts are less transformative than my proposals for Congress. What are your thoughts? I want to steal them, or at least incorporate them into mine.
I think there are still two questions that remain to be answered here, though neither has to do with the substance of the amendment itself.
The first question is whether these amendments could actually be enacted--it's one thing to have a good idea about how to reform the Senate, and quite another to have an idea that can actually get through the Article V process. As the debacle of Trump v. Anderson showed us, The People do not like having democratic rights taken away from them--at least, enough of The People do not like it that they will raise a huge ruckus about it. (As I recall, public opinion polling indicated that there was likely a thin majority in favour of disqualifying Donald Trump, but the amicus briefs filed at the Supreme Court were either academic in nature or made the argument that it somehow took away voters' rights if he were disqualified--misunderstanding that active suffrage does not encompass the right to vote for someone who lacks passive suffrage.) The same is true of direct election to the Senate. Convincing people that it will be better overall if they lose the right to select their own Senators, directly, is a tough sell. Even reducing Senators to one per state (while retaining direct election) is still paring back The People's current prerogative to change the composition of the body as often as they can now. That's not to say that there aren't good arguments in favour (whether I agree with them is another matter) but convincing people of them, in the way a modern campaign for such requires (can you make a TikTok video pitch), is another matter.
The second question is whether the Senate is still (to once again steal from Lord Durham) "consonant with the frame of American society". That is not to say that it is not a good idea to have an upper house that is less subject to the vicissitudes of regular election. (As I recall, the 1787 convention considered a proposal to have Senators serve for life. Ours did, until a mandatory retirement age of 75 was enacted in 1965.) And that is not to say that it is at all politically feasible to abolish the body--it benefits, at present, only seventeen states to do that, and there are only another seven to whom it would have been a benefit at any time in the last century. (It is possible, however, that abolition could be done through ratification conventions, rather than state legislatures, though this would still be very unlikely.) But if the basic composition of the Senate--equal representation from each state--no longer reflects the reality of American society (for instance, if US citizens feel themselves more citizens of the US as a whole rather than primarily citizens of their particular state) then the response to reform attempts (that aren't abolition) is likely to be that the body is an outmoded anachronism anyway and any attempt at reform is metaphorically just putting a single suture on a stab wound.
This is not to say that the proposals lack merit, or that they wouldn't improve the character of the body and result in a better legislative process at the end of the day, just that selling people on it and getting it through the Article V process is quite another matter, and I think quite a bit harder than it would be for something like reducing the veto override threshold or expanding the House.
These questions seem very closely linked! And, you're right, "having governors elect the President" faces similar headwinds.
I tend to think that, if we can't do *something* to lower the direct-democratic temperature, we are cooked. Possibly in a different way from the rest of the West (which I also tend to think is cooked), but nevertheless roasted on a spit. However, the fact that we must do something does not necessarily imply that we can. You may be right.
As I mentioned at the end of this piece, I think my next SCA article will be about why I'm doing this, which will address some of these questions. (Not answer them, since they are unanswerable, but at least address them.)
"It will be necessary, therefore, for the completion of any stable scheme of government, that Parliament should revise the constitution of the Legislative Council, and, by adopting every practicable means to give that institution such a character as would enable it, by its tranquil and safe, but effective working, to act as an useful check on the popular branch of the Legislature, prevent a repetition of those collisions which have already caused such dangerous irritation."
(Earl Durham, "Report on the Affairs of British North America", 1839)
(If there's one good thing which I think Justin Trudeau did on the domestic front--he was signing free-trade deals left and right ever since Donald came into office in 2017 and it became apparent that the man is an unrepentant mercantilist--it was making the Senate appointments process, at least on paper, nonpartisan; I think that has done a lot to push the body toward the actual house of "sober second thought" it was intended to be while giving it a culture that keeps it from outright blocking the Commons' clearly expressed will. I go into this with examples in a comment on another article that I linked in an earlier comment on one of yours.)
To elaborate on this just a bit, what's needed in any upper house that is intended to check the popular lower house, and that is selected in some way other than the lower house is selected (apportionment, method, whatever) is not suspensory vetoes (UK, Ireland) or subject-matter limitations (Spain, Germany) but rather a culture that knows when it can tap the brakes on the lower house and when it has to let the House have its way. (Compare the Commons Hansard record to the Senate Hansard record: https://www.parl.ca/legisinfo/en/bill/45-1/c-202 "Still, at the end of the day, we are not elected. We are appointed, and we are not accountable to the voters of Canada. The House has spoken clearly with one united voice, and our parliamentary traditions and conventions ask us to defer to them.")
Bad facts make bad law, and the tendency of upper houses to get in the way of lower houses led to what in hindsight seems to have been bad law, with a surfeit of democracy being allowed to trample over the brakes, either after the collisions had already happened (Parliament Act 1911*) or in anticipation of them (many other places).
*I sometimes wonder what the UK would look like now if instead of the Parliament Act 1911, the reform done at the time was what is now the Salisbury Convention, that the Lords will not impede the Commons when it passes a law promised in the government's manifesto.
(In fairness, the Senate of Canada has one matter where its veto is only suspensory: most constitutional amendments. Constitution Act, 1982, s. 47. But on ordinary legislation it retains the full right of veto, and on nonfinancial legislation the full right of amendment, and a partial right on financial matters.)
I think part of this can also be explained by the dichotomy in modes of cognition discussed here: https://josephheath.substack.com/p/populism-fast-and-slow (Note: you may well not agree with much of this article! I present it only for its description of dual-process theory.)
The intuitive system looks at something like direct Senate elections and says "more democracy good!" The analytical system kicks in later and says "democracy needs brakes".
The intuitive system looks at something like disqualifying Donald Trump and says "it's my right to vote for him anyway!" The analytical system kicks in later and says "active suffrage doesn't encompass the right to vote for someone who lacks passive suffrage".
The intuitive system looks at means-tested benefits and says "it's good not to give money to rich people!" The analytical system kicks in later and says "means-testing increases taxes on poor people but not rich people".
This solves almost all of the problems but I can still find two small nits to pick:
1. Amendment 33 seems to have a hard-coded assumption that there is no election between its ratification and the Highlander election. Suppose a state currently has senators A and B. Then the amendment is ratified a day before an election in which C replaces A. Then A still goes to the Highlander election and C does not.
2. The SNTV for vetoes loses fractions and that strikes hardest when the electorate is small. For example if a state senate has 11 members, then there will be up to 5 nominees and up to 2 vetoes, so only 40% vetoes instead of the 70% the plan actually aims for.
Interesting stuff, but I am a bit sad you got rid of the special amendment process. Single-subject limits are fun, even if a bad idea. :) Justiciability is also fun.
Anyway, in your last Senate comments post I left a comment with a lot of nonsense thoughts about the UK monarch's powers, it is reasonable you ignored it, but I'd like you to at least look at the things I said about party nominations being illegal, I think you could probably get legislation which mandates primaries overturned on 1A grounds, but I am unsure whether it actually exists, frequently there is at least a provision requiring a party to elect to use a primary.
I did read absolutely everything on that thread, I'm pretty sure! I ignored nothing. I just couldn't write about all of it because I learned from Part III that responding to every comment means three weeks and 15,000 words. :P
I do like the idea of killing primaries on 1A freedom of association grounds, but I think there's ample case law accumulated against it now. I'm not really sure what logical grounds that case law has for existing, but it seems to exist all the same, and makes this path complicated.
(If I'm forgetting anything in your earlier comments where you addressed this, I do apologize!)
"Single-subject limits are fun, even if a bad idea. :)"
https://i.kym-cdn.com/photos/images/newsfeed/001/236/841/075.jpg
I love this. I think I lean toward the contingent conclave solution for the hung election; you’ve done yeoman’s work on the electoral algorithmics but this is still long and complicated and has to get sold to voters someday. I now wonder how a state taking your refreshed principles of the houses of Congress and the Presidency on board ought to reform their own constitutions. Clearly their Houses can also simply get much bigger, with districts perhaps as small as 1000 in the small states. But who ought to elect the state governors, and who the state senators? It seems like the state house is the only entity available. Maybe they elect the senate, which then elects the governor, both under mechanisms intended to avoid essentially parliamentary outcomes.
I have wondered about how this might play out for states! It's not my intention to revolutionize state government, but it's a simple matter of fact that states have, throughout American history, moved to imitate the federal government. For example, when the Constitution instituted a four-year presidency, the one-year gubernatorial terms that were the norm in the Confederation pretty soon started to shift toward four-year terms. There can be no doubt that many would follow suit here as well. But I haven't given it all that much thought. My one interesting idea so far is mayors, who are to states what governors are to the nation. You'd have to somehow constitutionalize what makes a mayor, though, to prevent one party with control of state government from, say, taking away the charter of every city with an opposite-party mayor. But this seems solvable.
State senates are a very strange institution in themselves. They were already weird in many of the ways the federal senate was weird, and then Reynolds v. Sims exploded them completely. I honestly can't figure out why so many states still have them, except the federal-imitation thing. They aren't bound by entrenched constitutional provisions! They just like their senates, I guess! So I would hesitate to hazard much more than "mayors, maybe?" until I felt I understood them much better than I do.
You've taken great pain throughout this series to make sure your proposing sensible amendments that would do a great deal of good and be non-controversial enough to not face major backlash. I see it as going through company documentation or work instructions and cleaning up the garbage outdated things that are still there, or maybe using the exercise as an excuse to put in place some simpler workflows that make everyone's lives smoother.
I don't know how constitutional amendments work but I imagine they need to be voted on by the House and the Senate with a pretty high 'Yay' rate? Don't you think "look at the other person from your state. One of you is about to be out of a job" is a good way to get somewhere around 50 'Nay' votes right out of the gate?
I'm only at footnote 5 right now so maybe you address this later in the piece but I don't remember it from your first piece.
Yes, you're on to something. The Constitution proposes two methods for amending the Constitution, and only one of them has ever been used:
THE USUAL METHOD: The proposed amendment must win *two-thirds* in *both houses* of Congress. Then, on top of that, *three-quarters* of the states must ratify. Typically, this must happen within seven years of the amendment's proposal by Congress. (This isn't inherent to the process. It's just that most amendments today are proposed with a built-in time limit, because we are rightly embarrassed that the pro-slavery Corwin Amendment, proposed by Congress in a last-ditch attempt to stop the Civil War, is technically still pending). That's a lot of states to convince in seven years!
THE ALTERNATIVE METHOD: Two-thirds of the states may request a constitutional convention. The convention is then organized of delegates from the states, and that convention proposes amendments. Those amendments must be ratified by three-quarters of the states. Nobody ever does this because there's great fear of a "runaway convention". After all, the original constitutional convention was called to amend the Articles of Confederation (which required unanimity), and, instead, they invented a new Constitution, convinced the nation to ratify it (with just three-quarters of them in support), and destroyed the Articles. I don't think there's much risk of this today, especially given the three-quarters ratification requirement, but it still never quite comes together. Paulsen said in 2010 that 33 of 34 states had called for a convention, but I don't know whether they ever made it to 34, because the states involved are fractious and disorganized and many of them believe (wrongly) that they could strictly control their convention delegates and so they don't actually want a convention if there's any chance of a runaway.
Article V of the Constitution is famously bad. Ruth Bader Ginsburg said it was bad *and* Antonin Scalia said it was bad. Everyone agrees it should be hard to amend the U.S. Constitution, but that this is way too hard.
The only chance most of my proposals have is through the Alternative Method. The Senate will never support random-selection elimination of its current members, and the House will never support expanding the House by even a single seat (because any expansion dilutes the power of each individual representative). But a convention can do what it will, as long as the states support it.
Interesting! How would a state sign on to ask for a convention? Via a ballot initiative? The governor gets to just sign something? The state legislator? Their representatives in Congress? Orrrr…?
Their legislature just has to pass a joint resolution. Article V specifies "legislature", so it can't be vetoed by the governor.
Color me impressed! "But simple majorities plus gerrymandered state legislatures will produce a partisan Senate hostage to small states," I thought, on seeing the suggestion of returning Senator selection to state legislatures. And then the rest of the proposal sets about solving exactly that problem. And solving it well. Your solution makes the system much more democratic (in the sense that political scientists use the term--you once called this something like republiquesqe) by being less simple majoritarian (what you call democratic).
We're sadly together in thinking that no Senate is better than the Senate as it stands now. This is the first solution I've seen that stays within the existing Constitution that convinces me we could get an upper chamber that substantively improves the functioning of our government.
If we were having a Constitutional convention and had some chance of making this real, I would become obsessed with the details and develop strong opinions about them. Because we aren't, I'll just say that I'm sure that enough smart people could improve the details somewhere, or make the language clearer, but that the principle underlying them strikes me as solid.
In terms of ratification votes, people like language that's simple, and this has a many fiddly bits that make a lot of sense but that many if not most people wouldn't bother to understand the point of. But getting *any* amendment passed seems like fantasy right now, so that's neither here no there.
I wonder if any system like this would also apply to your suggestion of having governors pick the president? Or for that matter, do you think this different version of the Senate would be better to pick presidents, or do you still think governors are the best option?
This is really nice to hear! Thank you!
There are certainly resonances between this system and the gubernatorial conclave to elect the President: a requirement of consensus, the focus on breaking the power of party bosses, the restoration of privacy.
The thought has certainly crossed my mind that perhaps a healthy Senate would be more capable of electing the President, but a few things give me pause about proposing it: first, it would be awkward if I proposed having the President elected by a revitalized Senate and then the People decided to reject this proposal and accept that one, so we just ended up having the President elected by today's broken Senate. Second, if implemented, I would want to be sure that this proposal actually *works* before making another branch dependent on it. Third, the Senate will still have a small-state bias, and, while I think that's a good thing to have in the reactor core of the legislature, I'm hesitant to introduce that same bias into the executive branch. So, for now, I'm sticking with the guvs. Maybe 20 years after they implement all my amendments, we'd know whether we need to switch.
Cheers as always!
Great read, as always. Do you plan on crafting an Amendment for the Supreme Court? Like the Legislative and Executive branches, the Judicial branch is in rough shape at the moment, though not quite as bad since they aren't subjected to the ever changing whims of the electorate. I've got a couple thoughts on the matter myself.
I have concepts of a plan for the judicial branch! However, I mostly think it is mostly working at least a lot of the time, unlike Congress, so my concepts are less transformative than my proposals for Congress. What are your thoughts? I want to steal them, or at least incorporate them into mine.
I think there are still two questions that remain to be answered here, though neither has to do with the substance of the amendment itself.
The first question is whether these amendments could actually be enacted--it's one thing to have a good idea about how to reform the Senate, and quite another to have an idea that can actually get through the Article V process. As the debacle of Trump v. Anderson showed us, The People do not like having democratic rights taken away from them--at least, enough of The People do not like it that they will raise a huge ruckus about it. (As I recall, public opinion polling indicated that there was likely a thin majority in favour of disqualifying Donald Trump, but the amicus briefs filed at the Supreme Court were either academic in nature or made the argument that it somehow took away voters' rights if he were disqualified--misunderstanding that active suffrage does not encompass the right to vote for someone who lacks passive suffrage.) The same is true of direct election to the Senate. Convincing people that it will be better overall if they lose the right to select their own Senators, directly, is a tough sell. Even reducing Senators to one per state (while retaining direct election) is still paring back The People's current prerogative to change the composition of the body as often as they can now. That's not to say that there aren't good arguments in favour (whether I agree with them is another matter) but convincing people of them, in the way a modern campaign for such requires (can you make a TikTok video pitch), is another matter.
The second question is whether the Senate is still (to once again steal from Lord Durham) "consonant with the frame of American society". That is not to say that it is not a good idea to have an upper house that is less subject to the vicissitudes of regular election. (As I recall, the 1787 convention considered a proposal to have Senators serve for life. Ours did, until a mandatory retirement age of 75 was enacted in 1965.) And that is not to say that it is at all politically feasible to abolish the body--it benefits, at present, only seventeen states to do that, and there are only another seven to whom it would have been a benefit at any time in the last century. (It is possible, however, that abolition could be done through ratification conventions, rather than state legislatures, though this would still be very unlikely.) But if the basic composition of the Senate--equal representation from each state--no longer reflects the reality of American society (for instance, if US citizens feel themselves more citizens of the US as a whole rather than primarily citizens of their particular state) then the response to reform attempts (that aren't abolition) is likely to be that the body is an outmoded anachronism anyway and any attempt at reform is metaphorically just putting a single suture on a stab wound.
This is not to say that the proposals lack merit, or that they wouldn't improve the character of the body and result in a better legislative process at the end of the day, just that selling people on it and getting it through the Article V process is quite another matter, and I think quite a bit harder than it would be for something like reducing the veto override threshold or expanding the House.
These questions seem very closely linked! And, you're right, "having governors elect the President" faces similar headwinds.
I tend to think that, if we can't do *something* to lower the direct-democratic temperature, we are cooked. Possibly in a different way from the rest of the West (which I also tend to think is cooked), but nevertheless roasted on a spit. However, the fact that we must do something does not necessarily imply that we can. You may be right.
As I mentioned at the end of this piece, I think my next SCA article will be about why I'm doing this, which will address some of these questions. (Not answer them, since they are unanswerable, but at least address them.)
"It will be necessary, therefore, for the completion of any stable scheme of government, that Parliament should revise the constitution of the Legislative Council, and, by adopting every practicable means to give that institution such a character as would enable it, by its tranquil and safe, but effective working, to act as an useful check on the popular branch of the Legislature, prevent a repetition of those collisions which have already caused such dangerous irritation."
(Earl Durham, "Report on the Affairs of British North America", 1839)
(If there's one good thing which I think Justin Trudeau did on the domestic front--he was signing free-trade deals left and right ever since Donald came into office in 2017 and it became apparent that the man is an unrepentant mercantilist--it was making the Senate appointments process, at least on paper, nonpartisan; I think that has done a lot to push the body toward the actual house of "sober second thought" it was intended to be while giving it a culture that keeps it from outright blocking the Commons' clearly expressed will. I go into this with examples in a comment on another article that I linked in an earlier comment on one of yours.)
To elaborate on this just a bit, what's needed in any upper house that is intended to check the popular lower house, and that is selected in some way other than the lower house is selected (apportionment, method, whatever) is not suspensory vetoes (UK, Ireland) or subject-matter limitations (Spain, Germany) but rather a culture that knows when it can tap the brakes on the lower house and when it has to let the House have its way. (Compare the Commons Hansard record to the Senate Hansard record: https://www.parl.ca/legisinfo/en/bill/45-1/c-202 "Still, at the end of the day, we are not elected. We are appointed, and we are not accountable to the voters of Canada. The House has spoken clearly with one united voice, and our parliamentary traditions and conventions ask us to defer to them.")
Bad facts make bad law, and the tendency of upper houses to get in the way of lower houses led to what in hindsight seems to have been bad law, with a surfeit of democracy being allowed to trample over the brakes, either after the collisions had already happened (Parliament Act 1911*) or in anticipation of them (many other places).
*I sometimes wonder what the UK would look like now if instead of the Parliament Act 1911, the reform done at the time was what is now the Salisbury Convention, that the Lords will not impede the Commons when it passes a law promised in the government's manifesto.
(In fairness, the Senate of Canada has one matter where its veto is only suspensory: most constitutional amendments. Constitution Act, 1982, s. 47. But on ordinary legislation it retains the full right of veto, and on nonfinancial legislation the full right of amendment, and a partial right on financial matters.)
I think part of this can also be explained by the dichotomy in modes of cognition discussed here: https://josephheath.substack.com/p/populism-fast-and-slow (Note: you may well not agree with much of this article! I present it only for its description of dual-process theory.)
The intuitive system looks at something like direct Senate elections and says "more democracy good!" The analytical system kicks in later and says "democracy needs brakes".
The intuitive system looks at something like disqualifying Donald Trump and says "it's my right to vote for him anyway!" The analytical system kicks in later and says "active suffrage doesn't encompass the right to vote for someone who lacks passive suffrage".
The intuitive system looks at means-tested benefits and says "it's good not to give money to rich people!" The analytical system kicks in later and says "means-testing increases taxes on poor people but not rich people".
This solves almost all of the problems but I can still find two small nits to pick:
1. Amendment 33 seems to have a hard-coded assumption that there is no election between its ratification and the Highlander election. Suppose a state currently has senators A and B. Then the amendment is ratified a day before an election in which C replaces A. Then A still goes to the Highlander election and C does not.
2. The SNTV for vetoes loses fractions and that strikes hardest when the electorate is small. For example if a state senate has 11 members, then there will be up to 5 nominees and up to 2 vetoes, so only 40% vetoes instead of the 70% the plan actually aims for.