Courts are hesitant, and should be, to impose rules on another body of government, or to interfere with another body's internal affairs. But that doesn’t mean Congress could, for example, pass a rule forbidding red-headed members from chairing committees or requiring female legislators to vote after male members. That would be a capricious and unconstitutional exercise of Congress's power.
Why isn’t the power of a small minority of members to frustrate the will of a majority of members representing a huge majority of the nation’s population also an arbitrary procedure that defeats people's constitutional rights?
Two constitutional scholars have written books recently calling attention to the inequity of our constitutional system, which permits 17 percent of American voters to control the Senate. University of Virginia law Professor Larry J. Sabato calls this perversity of the Electoral College “a tyranny of a small minority to impede progress.” A mere 41 senators from 21 states can filibuster a vote permitting 11.2 percent of the American population to control the laws governing the remaining 88.8 percent of the country, Sabato reported in his book, A More Perfect Constitution: 23 Proposals to Revitalize Our Constitution and Make America a Fairer Country.
The perversity works two ways — preventing laws or passing them, undemocratically. University of Texas law Professor Sanford Levinson points out in his book, Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It), that one-quarter of the Senate is elected from states having less than 5 percent of the popular vote. Alaska has 629,000 people; California has 34 million. Both have two senators. Thus, the Senate can pass a law with the vote of 20 percent of the voting population.
These are problems of the Electoral College and bicameral government, but they compound the dilemma of the filibuster by allowing a minority of a minority to exercise controlling power over the nation’s vital interests.