Federalism - the allocation and balancing of power between state and federal government - has emerged as a central concern of the Supreme Court under Chief Justice William Rehnquist. Slowly, but steadily, the Rehnquist Court has been cutting back federal powers, and protecting state's rights.

Many have wondered what the Court is doing. Why are the Court's five conservatives - the Chief Justice himself, along with Associate Justices Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy, and Clarence Thomas - creating this new jurisprudence of federalism?

The answer is simple: they are seeking to fill a void in our constitutional structure, a problem created early in the Twentieth Century. The problem began when, in the name of "democracy," we tinkered with the fundamental structure of the Constitution by adopting the Seventeenth Amendment.

The Amendment calls for direct election of U.S. Senators. It's a change that has in fact proved anything but democratic. And it is a change whose aftermath may haunt the Twenty-first Century.

Divisions of power are rooted in our Constitution. Experience had taught the Framers the dangers of concentrations of ruling authority, resulting in their ingenious template of checks and balances, with divisions and distributions of power.

Ultimate power in a democracy resides with the people. We are not a pure democracy, however, but rather a confederated republic (one that features, as well, county and local political subdivisions).

Thus, while there is national sovereignty, there is also state sovereignty. Power has been so divided and spread for one reason: to provide for and protect the highest sovereignty - that of each individual citizen.

Only fools reject the wisdom of this founding principle of defusing power. Yet from the outset there has been debate regarding the appropriate allocation and balancing of these powers. The debate has focussed on not only whether a particular matter should be dealt with at the state versus the national level, but also on how these allocations are adjusted from time to time.

Of late, for example, along with laments for those who tragically lost their lives during the September 11th terrorist attack, there has been widespread concern with new realignments of federal/state powers that have followed in the name of homeland security.

Most significantly, as I discussed in a previous column, Washington is assuming powers that have only previously existed during a Congressionally declared war.

In designing our Constitutional system, the Framers sought to remedy the limits of the Articles Of Confederation, which created a loose association of states with little central power. The new system, they decided, ought to feature a better allocation of powers - and the federal government should have the powers "necessary and proper" to perform its envisaged functions. The will of the People should be the foundation, and the foundational institution should be the law-making legislative branch.

Unsurprisingly, the Revolutionaries were not very impressed with most aspects of the British model of government. They rejected parliamentary government, with its king or queen and three estates of the realm (lords spiritual, lords temporal, and the commons).

But one feature of the British system, the Framers did borrow. That was bicameralism - a word coined by Brit Jeremy Bentham to describe the division of the legislature into two chambers (or, in Latin, camera).

The British Parliament had its House of Lords as the upper chamber and the House of Commons as the lower chamber. Citizens selected members of the House of Commons. The members of the House of Lords, in contrast, were those who had been titled by a king or queen (lords temporal) and the archbishops and bishops of the Church of England (lords spiritual).

Loosely basing our bicameral legislature on this model (minus the lords, both temporal and spiritual), the Framers created the House of Representatives as the lower chamber, whose members would be selected directly by the people. And with almost unanimous agreement, they determined that members of the upper chamber, the Senate, would be selected by not directly, but by the legislatures of the states. Each state would have two Senators, while Representatives would be apportioned based on population.

James Madison was not only involved in structuring the system, but was also a keeper of its contemporaneous record. He explained in Federalist No. 10 the reason for bicameralism: "Before taking effect, legislation would have to be ratified by two independent power sources: the people's representatives in the House and the state legislatures' agents in the Senate."

The need for two powers to concur would, in turn, thwart the influence of special interests, and by satisfying two very different constituencies, would assure the enactment was for the greatest public good. Madison summed up the concept nicely in Federalist No 51:

In republican government, the legislative authority, necessarily predominate. The remedy for this inconveniency is, to divide the legislature into different branches; and to render them by different modes of election, and different principles of action, as little connected with each other, as the nature of their common functions and their common dependencies on the society, will admit.

The system as designed by the Framers was in place for a century and a quarter, from 1789 until 1913, when the Seventeenth Amendment was adopted. As originally designed, the Framers' system both protected federalism and ensured that relatively few benefits would be provided to special interests.

There is no agreement on why the system of electing Senators was changed through the enactment of the Seventeenth Amendment. But there is widespread agreement that the change was to the detriment of the states, and that it played a large part in dramatically changing the role of the national government.

Before the Seventeenth Amendment the federal government remained stable and small. Following the Amendment's adoption it has grown dramatically.

The conventional wisdom is that it was FDR's New Deal that radically increased the size and power of federal government. But scholars make a convincing case that this conventional wisdom is wrong, and that instead, it was the Seventeenth Amendment (along with the Sixteenth Amendment, which created federal income tax and was also adopted in 1913) that was the driving force behind federal expansion.

The Amendment took a long time to come. It was not until 1820 that a resolution was introduced in the House of Representatives to amend the Constitution to provide for direct elections of Senators. And not until after the Civil War, in 1870, did calls for altering the system begin in earnest. But forty-three years passed before the change was actually made.

This lengthy passage of time clouds the causes that provoked the Amendment to be proposed and, finally, enacted. Nonetheless, scholars do have a number of theories to explain these developments.

George Mason University law professor Todd Zywicki has assembled an excellent analysis of the recent scholarship on the history of the Seventeenth Amendment, while also filling in its gaps. Zywicki finds, however, that received explanations are incomplete.

There have been two principal explanations for changing the Constitution to provide for direct election of Senators. Some see the Amendment as part of the Progressive Movement, which swept the nation in the late 1800s and early 1900s, giving us direct elections, recall, and referendums.

Others, however, believe the Amendment resulted from the problems the prior Constitutional system was creating in state legislatures, who under that system were charged with electing Senators. These problems ranged from charges of bribery to unbreakable deadlocks.

Deadlocks happened from time to time when, because of party imbalance, a legislature was unable to muster a majority (as necessary under the 1866 law that controlled) in favor any person. The result was to leave the Senate seat empty and leave the state represented by only a single Senator, not the Constitutionally-mandated two.

Professor Zywicki basically demolishes both these explanations. He contends, first, that explaining the Seventeenth Amendment as part of the Progressive Movement is weak, at best. After all, nothing else from that movement (such as referendums and recalls) was adopted as part of the Constitution. He also points out that revisionist history indicates the Progressive Movement was not driven as much by efforts to aid the less fortunate as once was thought (and as it claimed) - so that direct democracy as an empowerment of the poor might not have been one of its true goals.

What about the "corruption and deadlock" explanation? Zywicki's analysis shows that, in fact, the corruption was nominal, and infrequent. In addition, he points out that the deadlock problem could have been easily solved by legislation that would have required only a plurality to elect a Senator - a far easier remedy than the burdensome process of amending the Constitution that led to the Seventeenth Amendment.

Fortuntely, Professor Zywicki offers an explanation for the Amendment's enactment that makes much more sense. He contends that the true backers of the Seventeenth Amendment were special interests, which had had great difficultly influencing the system when state legislatures controlled the Senate. (Recall that it had been set up by the Framers precisely to thwart them.) They hoped direct elections would increase their control, since they would let them appeal directly to the electorate, as well as provide their essential political fuel - money.

This explanation troubles many. However, as Zywicki observes, "[a]thought some might find this reality 'distasteful,' that does not make it any less accurate."

Those unhappy with the Supreme Court's recent activism regarding federalism should considering joining those who believe the Seventeenth Amendment should be repealed. Rather than railing at life-tenured Justices who are inevitably going to chart their own courses, critics should focus instead on something they can affect, however difficult a repeal might be.

Repeal of the amendment would restore both federalism and bicameralism. It would also have a dramatic and positive effect on campaign spending. Senate races are currently among the most expensive. But if state legislatures were the focus of campaigns, more candidates might get more access with less money - decidedly a good thing.

Returning selection of Senators to state legislatures might be a cause that could attract both modern progressive and conservatives. For conservatives, obviously, it would be a return to the system envisioned by the Framers. For progressives - who now must appreciate that direct elections have only enhanced the ability of special interests to influence the process - returning to the diffusion of power inherent in federalism and bicameralism may seem an attractive alternative, or complement, to campaign finance reform.

Profession Zywicki likes this idea as well, but is probably right in finding repeal unlikely. He comments - and I believe he's got it right -- "Absent a change of heart in the American populace and a better understanding of the beneficial role played by limitations on direct democracy, it is difficult to imagine a movement to repeal the Seventeenth Amendment."

The God of the Machine

CHAPTER XV

The Fatal Amendments

The United States is the Age of the Dynamo. By carrying over the axiom of free will from religious to political doctrine, a Niagara of kinetic energy was released. The swelling flow calls for maximum firmness of the bases and of tensile strength in the structure, and the minimum obstructive form or action. Unhappily every alteration, except two, in the Constitution, subsequent to the Bill of Rights, was of a contrary type. *

* The Bill of Rights is integrally of the original Constitution, being "the price of ratification." It Is an itemized safeguard of the rights of the Individual, and of state sovereignty. The only objection then offered to it was that enumeration of individual rights might be construed as limiting them to the issues named or as implying that the primary right of the individual is not comprehensive—the European idea of "liberties" instead of the American liberty. The point seemed far-fetched, it was certainly far-sighted, for of late that very perversion has been proposed, in a cheap parody, with the phrases "freedom from want, freedom from fear," etc. However, it is impossible to make any instrument fool-proo and the Bill of Rights has served admirably in practical application.

The test may be applied to any amendment by general questions: Does the amendment deny the rights of the individual? Does it weaken the bases by impairing the states as political entities? Does it add to the gross bulk or tend to improper distribution of the weight of the superstructure? If it does any of these things, it must turn the beneficial operation of a high energy system into a danger of equal magnitude.

Further, all these injurious effects are interacting; one amendment may inflict dual damage; and one impairment will cause occasion or excuse for another. As the structure cracks, sags, or sways, disrupting the private economy, the alternating attack by the zealous amenders will be plied more furiously. There is a progressive increase in chronological frequency of amendments to the Constitution. And the full consequences are compounded and cumulative, becoming manifest after a lapse of time all at once in a general collapse. They are also aggravated by a concurrent drift in judicial decisions, and extensions of the political power by simple usurpation. A sedition act is such usurpation; there is no authority for it in the Constitution, and there was wrathful protest on the first occasion; now it is accepted casually, with little comment except suggestions to enlarge it, frequently at the behest of alleged "liberals."

An early usurpation long forgotten as an event, yet still in force, took effect after over a century, in 1933, with the confiscation of private property in gold. When John Jay was Chief Justice, the first to hold the position, and as one of the authors of The Federalist, surely acquainted with the nature of the Constitution, he gave a verdict sustaining the right of the citizen to sue the government. Jay said that the American theory, origin, and form of government was a departure from the European idea on just that issue, the precedent right of the citizen over the state. By the American theory, Jay said, the government is the agent of the citizen, having only delegated authority; and it is absurd to hold that a person may not sue his agent. Subsequently Jay was reversed, though he cannot be refuted. But since then the citizen has been at the mercy of government in the United States as if he were the subject of a king; he cannot even plead for redress of wrong done him by the government, without permission. And the very first amendment (Article XI) after the Bill of Rights extends this usurped prerogative to the several states as against citizens of other states. The next amendment (XII) is technical.

Sixty-two years elapsed without further alteration, until the one positively right amendment was made, the Thirteenth, which limits the political power by debarring slavery.

The Fourteenth Amendment confirmed Federal citizenship and the civil rights of citizens throughout the Union. But it would have been better if the Bill of Rights had been explicitly extended to bind the state governments. This would not have relegated various issues to "implied powers," a wretched and dangerous subterfuge.

The Fifteenth Amendment fatally perpetuated the destruction wrought by the Reconstruction Act. It deprived the states of an indispensable attribute of state sovereignty, the exclusive power to designate the qualifications of voters, originally reserved to them by the Constitution.

The proper use of a necessary power and the proper agency for its use are entirely different questions. Control of the external borders of the nation rightly pertains to the Federal government, the organization representing the full territorial extent. The Federal government has certainly discriminated between races in quotas for entry. Possibly the line drawn is morally wrong; it may be unjustifiable even to reject refugees. Great nations have always been liberal in admission of persons. Nevertheless, it is necessary that the Federal government should have the power of the border; otherwise the nation cannot remain in being.

To form a true and workable federation, the component states must cede the attribute of sovereignty of the border. But they must retain a legitimate control over admission to the state's body politic, to preserve their political entities. This is the power to admit to the franchise. Race, color, or previous condition of servitude are irrelevant. They ought not to be considered disqualifications. The correct qualifications lie in local residence and allegiance and real property. Only in these requirements can a moral principle be found. If the franchise calls for qualification at all, it is clearly conditional, not absolute. So far as the conditions are practical, they must relate to the function of the instrument. The action is that of measured extension from a permanent base, so it must be attached to immovable local property. Liquid capital will not do.*

* The ownership and residence in a slab shack with a potato patch is a sound qualification for the vote, while ownership of every share of stock in the Standard Oil Company is not.

These qualifications are moral as well as material, being all within the competence of the individual; a responsible person can fulfill them by his own choice and efforts. But it is absolutely necessary that the power to designate qualifications should also be in the state. If the Federal government has power to fix or alter any particular, even negatively, it has the ultimate full power of fixing all requirements by particulars. And a defect running through the whole structure is much more grave than a localized error.

Interference in this manner is by decomposition. It was forty years before the decomposition of the bases became fully apparent; but it made the next attack possible, when a national function was nullified, by the income tax amendment. Previously no direct or personal tax could be laid except in proportion to the population. Then the action would be equated in every voter and representative. If a tax were proposed, each would know that he must pay a proportionate share; while if any region were to receive an extra share in expenditure (as in river or harbor works, etc.), its influence would be greatly outweighed by that of the other areas. Mass inertia is the stabilizing function; it inheres in any ponderable material; but it is best understood when it is supplied separately, as in ballast. The weight (gravity) is the power; its use is in a constant relation to a center of gravity. When the interest of every voter must be practically the same, the center of gravity was a constant even though the particles of ballast were mobile. But when the Federal government could mulct a wealthy state in taxes disproportionate to the population, to buy out a poor state by expenditures disproportionate to the population, the equation vanished. The mass-inertia veto was lost. (The weight, the interest, thereafter took effect in unbalance, as uncompartmented liquid ballast surging from side to side, dislocated mass.)

Probably the majority of people had no comprehension of these altered relations. They thought of it in simple terms of taxing the rich, perhaps with a vague infantile further expectation that the proceeds would be "given to the poor." Money obtained from the rich in any form except wages is never given to the poor. If it is taken by an ordinary hold-up man, it goes to the hold-up man. If it is taken by a philanthropic organization, it goes to the organization. If it is taken by the government, it goes to the politicians. Neither does increased taxation of the rich lower the rate of taxation on the poor; it is bound to cause an increase in all taxation, reaching down inchmeal until it expropriates a portion, not merely of the last dollar of a poor man, but of the first dollar he can earn. The tax will have to be paid before he can even touch his earnings. The present tax on wages, accurately described as "the Social Security swindle," could not have been imposed under the original Constitution; it is validated only by the income tax amendment. There is no means by which "the rich" can be taxed without ultimately taxing "the poor" far more heavily. And one tax tends to increase all other taxes, instead of lessening them, because tax expenditure goes into things which require upkeep and yield no return (public buildings and political jobs). Kinetic energy has been converted into static forms, which then necessitate the diversion of more kinetic energy to carry the dead-load.

The final and formal stroke in disestablishing the states was the Seventeenth Amendment, which took the election of Senators out of the State Legislature and gave it to the popular vote. Since then the states have had no connection with the Federal government; representation in both Houses of Congress rests only on dislocated mass. The simultaneous abdication of both Houses in 1933 was the result. They were not thrust apart, they did not even fall apart, because they were no longer in any structural relation whatever, neither to mass nor to each other nor to the superstructure. They had simply ceased to function. The immediate appearance of an enormous bureaucracy was the natural phenomenon of the structureless nation.

Concurrently and by interaction with these political events, the productive economy was distorted, and energy diverted into the political channel. The Civil War precipitated the sequence. The looting of the defeated Southern states (under the direction of philanthropists as usual in collaboration with crooks), was most demoralizing because the political power pretended to legitimacy in the acts of extortion. Scoundrels were immune within the law, while honest men were forced to revert to the primitive pre-legal mode of association; the chief, informal council and posse comitatus. There was no government, there was only force, the moral control having been disconnected. People lived by the moral order; they cannot survive otherwise; but the ancient and erroneous identification of government with force became plausible again. Likewise politics became lucrative.

Generally speaking, up to the Civil War any man seeking political honors expected to do so at some financial loss to himself; he lived by his private means. It is only when this condition prevails that men of intelligence, integrity, and good taste—the productive character—will be inclined to enter public life. Lord Acton was referring to political power when he said: "All power corrupts, and absolute power corrupts absolutely." Political power has this effect by its relation to production. The productive man is aware that political expenditure is a charge upon production, net expense. He does not like to live at the expense of others. If he is obliged to forego in his private earnings more than he receives in the remuneration of office, though he may not be sure that he has earned his salary, he is at least certain that he did not seek office as a parasite. It is to be observed that today the men who refuse to accept any pay for government positions are without exception those who have been most actively engaged in production, industrial managers. The previous "social workers," professional politicians, and persons with unearned incomes, are distinguished by the eagerness with which they attach themselves to the political payroll, or turn their political position to incidental gain. They are not aware of any objective in political life except parasitism. The parasitical view of politics was formulated unconsciously when the argument began to be heard that larger salaries, perquisites, more ostentatious public buildings, embassies, and uniforms must be 'provided to maintain the dignity of office. If a position is rated by its expense or display, obviously it must be deemed wanting in intrinsic dignity or worth. The ambassadors who feared that in ordinary clothes they might be taken for waiters were probably right. No one would have taken Franklin, Adams, or Jefferson for a lackey.

It is this derogation of values that the productive man dislikes. Further, he knows he will be constantly importuned for favors he has no right to grant, by the parasites he would never meet in productive life. Hence the best men are found in public life only when it is dangerous, burdensome, and at their own expense.

The cost and display of government is always in inverse ratio to the liberty and prosperity of the citizens, as with the impoverished nation and magnificent monarchy of Louis XIV. Today, when our agriculture is in distress, the Department of Agriculture grows like a monstrous fungus. The huge Department of Commerce grew as international trade dwindled and internal commerce dived into the depression.

Further, political power has a ratchet action; it works only one way, to augment itself. A transfer occurs by which the power cannot be retracted, once it is bestowed. In the lowest illustration of this, a candidate for office may promise the voters that he will reduce taxes, or the number of offices, or the powers of office. But once he is elected, he can use the taxes, the officeholders, or the powers to ensure re-election; therefore the motive of the promise is no longer operative. By cutting down expenditure or the number of officeholders or graft, he will certainly create enemies, so the reverse motive, impelling him to evade his promise, is doubled. The voter can only vote the incumbent out; but the next officeholder will come into those augmented powers, and be still harder to get rid of in turn. The difficulty of taking back powers once granted is illustrated in the repeal of the Prohibition Amendment; although it was demanded and carried by overwhelming sentiment of the citizens, the article of repeal contained a proviso which would retain numerous Federal jobs; it was impossible to make a clean sweep of the pernicious usurped power. The Prohibition Amendment was an assertion of absolute government, the indication of complete decomposition of the body politic. The "lame duck" amendment is a triviality indicating nothing but the degradation of the charter, a scribble on the margin.

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