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."
The 1866 law sounds unconstitutional anyway. Where is Congress granted the power to interfere with the workings of state legislatures? During that postwar time period when the radicals held sway, an awful lot of harm was done to the Constitutional form of government designed for the US by the framers of the USConstitution.
Why not repeal the 14th through 17th amendments? All four are antithetical to our originally designed form of government and all four have dubious ratification records as well.
Is it better now that all of the elections of Senators is corrupted by campaign money? Is it easier for special interests to bribe 100 men or 5,000 men?
Lysander Spooner's "Trial by Jury"
THE RIGHT OF JURIES TO JUDGE THE JUSTICE OF THE LAWS.Frederic Bastiat's, "The Law"
SECTION IFor more than six hundred years --- that is, since Magna Carta, in 1215 --- there has been no clearer principle of English or American constitutional law, than that, in criminal cases, it is not only the right and duty of juries to judge what are the facts, what is the law, and what was the moral intent of the accused; but that it is also their right, and their primary and paramount duty, to judge of the justice of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating, or resisting the execution of, such laws.
Unless such be the right and duty of jurors, it is plain that, instead of juries being a “palladium of liberty” --- a barrier against the tyranny and oppression of the government --- they are really mere tools in its hands, for carrying into execution any injustice and oppression it may desire to have executed.
But for their right to judge of the law, and the justice of the law, juries would be no protection to an accused person, even as to matters of fact; for, if the government can dictate to a jury any law whatever, in a criminal case, it can certainly dictate to them the laws of evidence. That is, it can dictate what evidence is admissible, and what inadmissible, and also what force or weight is to be given to the evidence admitted. And if the government can thus dictate to a jury the laws of evidence, it can not only make it necessary for them to convict on a partial exhibition of the evidence rightfully pertaining to the case, but it can even require them [*6] to convict on any evidence whatever that it pleases to offer them.
Legislators Told How to Manage MenRaynal's instructions to the legislators on how to manage people may be compared to a professor of agriculture lecturing his students: "The climate is the first rule for the farmer. His resources determine his procedure. He must first consider his locality. If his soil is clay, he must do so and so. If his soil is sand, he must act in another manner. Every facility is open to the farmer who wishes to clear and improve his soil. If he is skillful enough, the manure at his disposal will suggest to him a plan of operation. A professor can only vaguely trace this plan in advance because it is necessarily subject to the instability of all hypotheses; the problem has many forms, complications, and circumstances that are difficult to foresee and settle in detail."
Oh, sublime writers! Please remember sometimes that this clay, this sand, and this manure which you so arbitrarily dispose of, are men! They are your equals! They are intelligent and free human beings like yourselves! As you have, they too have received from God the faculty to observe, to plan ahead, to think, and to judge for themselves!
Corruption can NOT be got rid of. One can at best limit the scope of it, bias against it getting too big. The Founders understood that -- they sought only to balance it out and create smaller scale competing interest groups. It was a successful thing, at least until a constant, unrelenting motive of elitist interest drove it out.
Ida Tarbell, eh? She is a perfect exemplar!
Amendment XVI [Income Tax (1913)]
Amendment XVII [Election of Senators (1913)
Amendment XVIII [Prohibition (1919)]
Amendment XIX [Women's Right to Vote (1920)
Amendment XX [Presidential Term and Succession (1933)]
Amendment XXI [Repeal of Prohibition (1933)]
Amendment XXII [Two Term Limit on President (1951)]
Amendment XXIII [Presidential Vote in D.C. (1961)]
Amendment XXIV [Poll Tax (1964)]
Amendment XXV [Presidential Succession (1967)]
Amendment XXVI [Right to Vote at Age 18 (1971)]
Amendment XXVII [Compensation of Members of Congress (1992)]
But things are different today. A Senator today has plenty of ways of earning money and enough perks to elevate himself above the common level, and if caught taking a bribe, scandal and impeachment loom. State legislators then were not so elevated, and a little bit of money went a long way. Even today, actual prosecutable bribery is probably greater at state and local levels, because people are more easily bought and not as many people are looking. And in the past it took surprisingly little to bribe state legislatures.
I disagree that a Senator today is only responsible to his campaign contributors: he or she does after all have to get a plurality of votes in a state, and that's not always easy to do. A State Senator or Representative from a small county before reapportionment might only have a few hundred, easily appeased constitutents, and might therefore have a very free hand to disregard anything beyond his own self-interest. Given that opportunities for moneymaking back home might be small, state legislators could sometimes be bought quite cheaply, or lured with other promises. Moreover, it was probably far cheaper to pay a political machine for the vote of its members than to pay for an expensive television campaign today.
I accept that direct election didn't end corruption. The argument that it would is therefore a bad argument. But if you want to understand why people wanted and accepted popular election of Senators, that argument is very important, as is the very visible bribery in the statehouses of the day. Then as now, perception mattered most, and after the Amendment, the visible, egregious corruption and bribery of state legislatures didn't decide Senate elections, though it didn't remove money or corruption from politics.
Were Senators closer to and more representative of their states than they are now? That's something that it would be hard to measure, and all of us are now probably less representative of our states and more like people in other states. Can one expect that Senators would be an exception to the trend? Certainly, a Senator from West Virginia in the old days would be more representative of mine and railroad owners than mineworkers or farmers. A senator from Nevada would be largely chosen by mineowners and the railroad. The complaint of farmers from the plains states was that the railroads and banks always had more of a voice in the election of Senators than they had. It's an open question whether the banks, mines, and railroads were the state interest or not. The Senators from New Jersey or Rhode Island might be bought and paid for by Standard Oil, certainly not a real local interest.
I don't think the amendment really worked to end corruption, but I also can't say that Senators were more representative of their states then. Some things remain constant, and one of them is the power of money in politics.
I don't have any problem with indirect election or with a system that favors rural over urban votes, as the old pre-reapportionment state legislatures did. But it's pretty clear that urban voters would do what they could to change the system, and the direct power of numbers will try to overcome obstacles in its way.
More here.
I passed along Zywicki's work where?
There is much less corruption now than there was then. Today, yes, I think the various reforms instituted over the last hundred years have dramatically reduced the corruption.
from another post... They accept "campign contributions" from people outside their states and even outside the US. They even accept contributions from foreign governments.
I would love to see an amendment or law that prohibited contributions to any federal candidates from anyone except the registered voters that they hope to represent.
Foreign nationals are already prohibited from making contributions. How have foreign governments made contributions to Senators? Can you give an example?
Corruption has expanded to a level undreamed of in past centuries. As it stands now, special interests worldwide can lobby Congress. Red China has been buying members of both houses for a long time now.
US law firms representing foreign clients can and do drop loads of their own cash on politicians.
Good post.
I agree that direct bribery is less of a concern. A greater concern is control of the media. Politicians today are elected by TV ads. A politician that resonates with the local voters is likely to do so by old-fashioned door-to-door politicking. He is rarely viewed favorably by the nationwide special interests, because he truly earns his elections with the electorate. He may be a leftist or a conservative but in either case he foremostly reflects his district. His is the style of politics the American system depends upon by design. Such old-style politician typically runs agains a sleek centro-leftist backed by nationwide PACs. Because the old style politician can't raise enough to by quality TV ads, the sleek centro-leftist whose ads are produced by sophisticated big-city professionals has an unsurmountable advantage. Once the sleeker wins, who elected him? Technically, his local voters did -- those lazy and ininformed who go by the TV pap. In effect, he was elected by nationwide special interests. This is how we get the likes of Tom Daschle and Bob Dole, with a barely noticeable reflection of local North Dakota or Kansas interest, but powerful dosage of DC culture.
The constitutional system of local representation is near collapse in this TV age, period. If a repeal of the 17 Amendment were possible, it would slow down the decay. However, we all know it is not going to happen because of the democracy worship inculcated in nearly every American.
That is a very worthy idea. At one point the New Hampshire State Legislature was the third largest legislative body in the English-speaking world, after Commons and Congress. In those years NH had the no state income or sales taxes, and some of the lowest taxes in the country. I don't know what the situation there is now, but reducing the size of the Legislature made representatives more distant from the represented. Professional politicians took over and they were less accountable to the people.
Also, increasing the size of the House would probably reduce the role of television and big contributors, since it would be hard, at least for a time, to find the television time and money for such campaigns were the number of seats to be expanded. And if you increase the size of the House, Congressmen's perks would inevitably go down, at least for a time, and the citizen-legislators would want shorter sessions.
The downside is that some of the new legislators, with fewer perks, might be tempted to make the most of their benefits under the table. And salaries and perks would inevitably start creeping back upwards. But on the whole, you're idea bears much looking into. A larger house might provide some of the advantages of term limits without the drawbacks.
As for repealing the 17th, I don't know if it would have the benefits people claim for it. Legitimacy today comes from the direct mandate of the voters. Any unelected or indirectly elected legislature loses power and becomes peripheral.
So there's a trade-off involved. You might like the composition of an indirectly elected Senate, but the House would more and more shove it aside into a purely advisory capacity. I wish it weren't the case, but it just seems like human nature. Given the way people think about things now, those who can claim a full mandate of "the people" are in a position to marginalize those who can't.
The thing to understand about the mentality of the Progressive period is that it was a very simplistic -- or if you prefer, straightforward -- way of thinking. It looked at clear, obvious abuses, like the bribery that affected many state legislatures, and thought of very simple solutions that didn't take the bigger picture or the consequences of reforms into account. It was a mechanical, "get under the hood and fix it" way of looking at the world, that didn't get at the deeper reasons why things happen or don't happen. This mentality is still with us in things like campaign finance reform, Ross Perot, and, some would say, term limits.
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