Water does run uphill here near Lake Wales, Fla. they have made no progress in stamping out stupidity in the Democratic Party in Fla. however.
Posted on 09/13/2002 11:35:37 AM PDT by zx2dragon
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.
Concerns About Federalism, Especially Post-September 11
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.
Creating the United States Senate: The Framers' Bicameralism
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.
The Cloudy Reasons Behind The Seventeenth Amendment
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.
Two Main Seventeenth Amendment Theories Don't Hold Water On Examination
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."
Should The Seventeenth Amendment Be Repealed?
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."
Water does run uphill here near Lake Wales, Fla. they have made no progress in stamping out stupidity in the Democratic Party in Fla. however.
Many proponents of states' rights will disagree with some of McDonald's conclusions, but it's always good to read both sides of the argument.
Repeal the Seventeenth Amendment. It is The Elegant Campaign Finance Reform.
-PJ
The typical reaction to such a suggestion is that "the 17th Amendment brings the Governemnt closer to the People" "we can't do away with it".
My basic response - It brings the Federal Government closer to the States, which are closer to the People.
If these five Justices are deciding cases this way, is that even more reason to ensure that the Senate Judiciary Committee is controled by the GOP as opposed to the Dems?
Think about it.
If you got mo', go with it.
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.
I believe the reason The Reason is "cloudy", is because of ignorance about what happened during Reconstruction, and why the 14th Amendment destroyed federalism. It destroyed federalism because it was so vague, that it essentially gave the US Supreme Court and Congress total veto power over anything a State Legislature decided. This essentally relegated the State legislatures to the sidelines before the 17th Amendment was passed.
I don't think so. 16th and 17th for darn sure. They were part of the terrible trio of the 1909 to 1919 (counting Congressional passage to ratification of each) but the 18th was already repealed. I think most of the rest, save maybe the 24th (No poll tax allowed for elections to federal office) and 26th (18 year old voting in federal elections) are mostly postitive, and mostly concern only properly federal matters, such as Presidential term limits (22nd) and dates of taking office (20th). The 19th, 24th and 26th (and 15th) which all concern who can vote, can be seen as weakening federalism, since prior to their enactment the states set voter qualifications, but can also be seen as protecting or extending the rights of citizens, (15th the "out" races, 19th women, 24th the poor, 26th 18-20 year olds). the 24th and 26th only affect federal elections so I shoudn't say they weakened federalism either.
Zywicki is wrong. There was a great deal of corruption in state legislatures in selecting senators, especially in small and marginal states like RI, NV, WV, NJ. Railroads, banks and maufacturers bribed legislatures. Muckrakers like Ida Tarbell, Lincoln Steffens and David Graham Philips picked up on this in scandalous articles.
Populists and progressives adopted the democratic ideology of direct election. Their feeling was that the people wouldn't be bought off by special interests as legislators were. It all seems very naive now, but when you consider that state legislatures were often apportioned by county rather than by one-man-one-vote in those days, you can see why they complained. Some State Representatives or State Senators from small counties might themselves be accountable to virtually no one, and their votes would essentially be for sale in the Senatorial elections.
You could also argue that the 17th Amendment suited the ambitions of the leaders of the progressive movement. The senate was largely a backwater in the 19th century. States governments and governors had greater power then. "Senate" comes from the Latin for elder, and the idea of the senate as a group of elder statesmen persisted.
The 17th Amendment changed the role of the Senate, the type of person who became a Senator, and the public's view of the Senate. Senators became more ambitious, more hustling and more headline grabbing. They couldn't rely on their friends in the legislature but had to aggressively court the public.
Shifting to direct election also meant that every Senator could be a potential President and every Senate election a dry-run to the Presidency. No Senator went directly to the Presidency before Harding. Kennedy was the other, though dozens or scores have tried, especially since the 17th Amendment was passed.
In theory we could go back to the older system, though it won't happen. The idea of direct election has become so powerful and prominent in the public mind. It's become the source of political legitimacy. Officials who don't have that ballot box mandate take a back seat to those who do.
Were Senators once again chosen by state legislatures the Senate would lose much of its power and once again become a backwater. Congressmen would become more prominent and thumb their popular election in the eyes of the indirectly elected Senate. Governors would become more prominent in Presidential elections, though this doesn't mean that states will have any more power.
That's not an argument against change. There is something to be said for a Senate and House chosen in different ways and representing different understandings of the national interest, but it should be noted that voters probably wouldn't allow an indirectly elected Senate the kind of power it has today.
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