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“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.” James Madison.

Or, if you prefer, Help, help, I’m being repressed!.

With the presidential election coming up, the primary campaign over and nonstop talking heads on television spouting off one way or another it gets you thinking and it gets you a little down. With both presidential candidates being United States Senators I got to thinking about how the Senate is run or more specifically how senators get elected. Some of you probably vaguely recall this but prior to the enactment of the 17th Amendment in 1913 Senators were not directly elected by the people of their state. They were appointed by the state legislature. Most people, when they think about this, if they ever thought about it at all, probably think that the way things are now is the way that they should be. I’m not so sure.

The history of government in the United States is a history of the slow creep of the reach of the federal government. It is the history of the slow triumph of the United States over the individual States which comprise the union. State rights and American history is difficult for us to understand today because we generally think of ourselves as Americans. I was born in Iowa, spent time in Nebraska and D.C. and the last seven years in Chicago. I maintain different affinities for each of those places to this day. I do not strongly identify myself with any of those places however. My allegiances don’t extend much beyond sports teams or a mild joke about a neighboring state. The identification of ourselves as Americans is so ingrained that it is easy to forget that there was a long period in which people identified themselves firstly by state. A time where, in order to limit government intrusion into their lives, processes were implemented to limit the powers of the federal government.

It is important to understand this history however. I believe that you need to know where you’ve been in order to know where you’re headed. So, here’s my longer than it needs to be take on the history of the enactment of the Seventeenth Amendment, the slow creep of federal power and some thoughts on repealing the Seventeenth Amendment.

The Articles of Confederation

Two of the most important documents in the history of the United States, and the world, are the Declaration of Independence and the American Constitution. Americans revere these two documents as symbols of the greatness of their past and their hopes for the future. Although popularly viewed as contemporaneous documents they were in fact written and ratified 13 years apart. In intervening years, the Articles of Confederation were around to form the historical equivalent of Frank Stallone, Dan McGwire, Ozzie Canseco and Jeremy Giambi combining to form a constitutional Voltron of Suck. Written in 1777 and ratified in 1781 the Articles of Confederation allied the newly independent states under a single government until the present Constitution was ratified in 1789.

In 1776, and thereafter, Americans generally agreed that their new government was to be a republic. The specifics of effective Republican government eluded them however. This form of government was essentially new. Not since the Greeks and the Romans had it been used. There was no working government upon which to base their system.

When the Second Continental Congress wrote the Articles of Confederation in 1777, they were not looking to form a strong central government. Years of British tyranny had taught the colonists to fear the power of a strong central government. They believed that government was best taken care of at the state and local level. They believed that the best way to protect their liberties was to have a strong legislature. What little power the framers of the Articles gave to the national government was given to the legislature.

The national government had a unicameral legislature in which each state had one vote. The executive branch was weak and there was no judiciary. The Articles gave the national government the power to conduct foreign relations, settle intrastate disputes, regulate maritime affairs, regulate Indian trade, and create a national currency. All other powers were reserved to the states. This left the national government with ineffective power to raise money or to enforce a national commercial policy.

With limited powers, a weak executive and a war being waged, the national government’s problems started immediately. With no effective means to tax, the national government could not raise the money necessary to finance the war. By 1778, with both the state governments and the national government turning to the printing presses, inflation was severe.

The national government lacked the power to enforce its laws, leaving it essentially impotent. Even though the Articles gave it power with respect to foreign affairs, the national government needed the cooperation of the states in order to implement its policies. By the mid 1780’s it was clear that a new national government was necessary.

Fortunately, the States now had several years of experience with variously effective republican governments. In May 1776, the Second Continental Congress had directed the states to create new governments for themselves. Initially, the same fears that had resulted in a weak national government led States to create weak state governments as well. The first state constitutions resulted in state governments with strong legislatures and weak governors. The States soon learned that this arrangement did not make for good government and constitutional revisions began almost immediately.

The 1780s were a time of experimentation for state governments. They continually retooled their state constitutions, slowly improving the republican form of government. Over a period of 10 years, the States experimented with various systems of checks and balances and divisions of powers that would be capable of providing effective government free from tyranny. These efforts culminated in the new national Constitution of 1789 and Bill of Rights.

The Constitution of 1789

The Constitution, drafted in 1787 in Philadelphia, was not perfect. It would require a Bill of Rights to prevent tyranny. It would require John Marshall in the 1800’s to make the judiciary an equal branch of government. It would take the Civil War to clarify the blurry line between state and national government powers. Regardless of these deficiencies however, the new national government was more powerful and effective than the one under the Articles of Confederation. It had the necessary means to raise money, and it was given full powers in foreign affairs. As Benjamin Franklin put it, “I confess that there are several parts of this Constitution which I do not at present approve,” but “… I expect no better, and I am not sure, that it is not the best.”

The Constitution is often described as providing “separation of power” and “checks and balances” on the branches of government. Do you really know what these things are though? Sure, generally you understand that it has to do with the distribution of power within government. Something about the legislature being bicameral and representing different populations. You know what a veto is and how the President uses it to check the power of Congress. You know that the judiciary could check the power of both branches by deciding whether the acts of both Congress and the President were constitutional. In short, you understand a horizontal separation of power in which the powers of the federal government are divided among three branches. No one department of government is given enough power to abuse the people and each branch serves as a watchdog against the others’ encroachment.

The Framers did not use just horizontal checks and balances however. No, they were far too wily for that. Too afraid of tyranny. Not content to let the federal government police itself, the Framers also instituted a system of vertical checks and balances between the States and the federal government.

As Madison wrote in Federalist No. 51: “First. In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”

The Founders utilized the Senate to enable the state legislature to check the power of the federal government. Each state, regardless of size was given two representatives in the Senate. These Senators were chosen by the legislature of each state. That’s right, as originally drafted, ratified and effective for the first 125 years of this country’s existence, Senators were appointed, not elected. Article I, Section 3 of the Constitution provides: “The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof, for six years; and each Senator shall have one vote.”

The Constitution provides that the Senate shall have the power to pass each piece of legislation, ratify judicial appointees, approve executive appointments and ratify treaties. Because each state legislature had two representatives in Congress, it had a hand in all federal affairs and each state’s sovereignty was protected.

Madison 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.”

And 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.”

“In sum, the framers’ reasons for instituting the legislative election of senators, aside from the political necessity of calming the fears of the states’ rights camp, was essentially two-fold. First, it would promote the best statesmen to office by keeping the selection process at the level of personal acquaintance and accountability. More than any other agent in the federal scheme, a state legislator could know the mind of his constituents, and vice-versa. Likewise, as one of a few-score delegates assembled in the state capital, a person could vote for senator with the competence that only a first-hand knowledge could provide. Second, in more fractious times, the legislative appointment of the Senate would make it more difficult for interests temporarily in the majority, or claiming to speak for the majority, to bring their schemes to fruition, because they had to gain the support of the representatives of the people in the House as well as of the representatives of the states in the Senate.”

Federal Creep

As Senator Craig might say, the States initially took a wide stance when staking out their powers. Over the course of two hundred years however, many areas originally staked out by the States have increasingly fallen under federal authority.

The United States is technically a federal republic. At its inception, this meant that limited powers were granted to the federal government. All powers not specifically enumerated and granted to the federal government were reserved by the States. As James Madison wrote in the Federalist No. 45: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” Throughout the first century plus of its existence, the federal government slowly consolidated power through the enactment of various constitutional amendments and Supreme Court rulings. During this time however, two clauses in the constitution kept the expansion of federal power at a slow creep: the appointment of Senators by state legislatures and a narrow interpretation of the interstate commerce clause by the Supreme Court. During the early years of the twentieth century events would transpire which weakened and even obliterated these impediments to the expansion of federal power.

The Interstate Commerce Clause

I’ll deal with the Commerce Clause first because its mostly a discussion for another day. Article I, Section 8, Clause 3 of the Constitution provides: “The Congress shall have power…To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;”

Before 1937, the Commerce Clause was primarily only a check on the power of the States to enact legislation restricting interstate commerce. In 1937, after a failed attempt to pack the Supreme Court by FDR, the Supreme Court acquiesced to New Deal legislation. This was essentially the triumph of the federal government over the States. Before 1937 the Supreme Court held a narrow view of federal power under the Commerce Clause and routinely invalidated laws enacted by Congress as outside of federal purview. Between 1937 and 1995 however, the Supreme Court did not void a single act of Congress for exceeding Congress’s power under the Commerce Clause. Essentially, what the Supreme Court has said is that anything that could conceivably have even a slight impact on commerce was subject to federal regulation. It was not until two recent Supreme Court cases (U.S. v. Lopez (1995) and U.S. v. Morrison (2000)) that the seemingly endless expansion of federal regulatory power was curtailed.

Today, the Commerce Clause “is the direct source of the most important powers that the Federal Government exercises in peacetime, and, except for the due process and equal protection clauses of the Fourteenth Amendment, it is the most important limitation imposed by the Constitution on the exercise of state power.” From Findlaw on the Commerce Clause.

Articles In This Series:
Part Two: Repeal the Seventeenth Amendment Part Two
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