“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.” James Madison.

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

Prior to the enactment of the 17th Amendment in 1913 Senators were not directly elected by the people of their state but appointed by the state legislature. Most Americans 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 is difficult for us to understand today because we generally think of ourselves as Americans. 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.

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.

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.

With limited powers, a weak executive and a war being waged, the national government’s problems started immediately. The impotent national government lacked the power to enforce its laws. 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.

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. The Framers did not use just the horizontal checks and balances that we have today however. 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: “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. 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.” Because each state legislature had two representatives in Congress, it had a hand in all federal affairs and each state’s sovereignty was protected.

As Madison explained in Federalist No. 10, “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.”

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. “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.” (Madison). Throughout the first century plus of its existence, the federal government slowly consolidated power through the enactment of various constitutional amendments, Supreme Court rulings and war. 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

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. 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.”

THE SEVENTEENTH AMENDMENT

But even before the Supreme Court changed course on the meaning of the Commerce Clause, the people had begun to transfer power from state governments to the federal government. In 1913 the ratification of the Seventeenth Amendment altered the vertical system of governmental checks and balances by providing for the direct election of the Senate.

One reason for the enactment of the Seventeenth Amendment was procedural. Under the existing system there were frequent deadlocks in the selection of a senator by state legislatures. This deadlock would cause the state to go without representation during the impasse.

But the Seventeenth Amendment was also the product of the Progressive Era which also gave us the Sixteenth Amendment (Income Tax), the Eighteenth Amendment (Prohibition) and the Nineteenth Amendment (Women’s Suffrage).

Progressives believed that the Seventeenth Amendment would help to clean up politics and reduce corruption. “Now, after the most protracted political battle in that usually bloodless revolution historians refer to as the Progressive Era, Secretary Bryan put his seal upon the reform that, in the expectations of those who had labored for it, would end the dominance of party “bosses” and the state “machines,” stamp out the undue influence of special interests in the Senate, make it more responsive to the will of the people, and of course, eliminate, or greatly reduce, the execrable practice of spending large sums of money to get elected.”

Even prior to the enactment of the Seventeenth Amendment the primary system for designating party candidates had obliterated the original Senatorial election process set up in the Constitution. Senatorial candidates were selected prior to the election of legislators. The state legislative election thus became a process of electing legislators who supported a particular Senatorial candidate. “And while Americans are likely never to forget the Lincoln-Douglas contest of 1858, they are almost certainly unaware that the most famous debates in the history of Senate campaigns were entirely against the spirit of original intent, reducing the Illinois legislature to a mere registering body for the popular choice of senators.”

THE EFFECT OF THE SEVENTEENTH AMENDMENT

The Seventeenth Amendment resulted in a Senate that more closely matches the House in terms of partisan composition. Prior to the Seventeenth Amendment the House and the Senate, originally designed to represent different constituencies, may actually have effectuated that purpose. Separate constituencies represent different interests. As Madison argued in Federalist No. 10, “extend the sphere, and you take in a greater variety of parties and interests; you make it less probable that a majority of the whole will have a common motive to invade the rights of other citizens.”

By providing for the popular election of Senators, the Seventeenth Amendment paved the road for the election of a Senate and a House with similar compositions and similar representation. This effectively created a permanent majority in favor of federal government over the States.

The slow expansion of the federal government has absolutely been a net positive for this country. During the twentieth century the federal government has slowly but surely become the most important instigator of social change and stabililty in our society. Whether Social Security, Medicare, securities laws, civil rights legislation, the environment, the war on poverty, education reform, drinking laws, drug wars, a superior court system, welfare reform, or any number of other things, the federal government now reigns supreme.

REPEAL THE SEVENTEENTH AMENDMENT

Why then would we want to change anything? Why not leave well enough alone? I will put forth three reasons.

First, to quote Thomas Jefferson, “a little revolution now and then is a good thing.” I am not naive enough to suggest that repealing the Seventeenth Amendment would somehow make the Senate immune from the influence of lobbyists. What I am suggesting is that if you change the rules of the game then at least for a little while you may give an advantage to under-represented interests. Eventually lobbyists will learn the new rules and you’ll end up back where you started. Before people learn how to “play” the new system however, perhaps some progress could be made.

Second, to quote James Madison, “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.” I am not so naive as to suggest that just because the Founding Fathers thought that something was a good idea that it should remain that way. The world has changed mightily in 218 years. On the other hand, I assure you that the Founding Fathers thought about this matter far longer and far deeper than you or I. One can only imagine the number of hours that Madison and Jefferson sat about, drinking beer and discussing the best forms of government. What they thought should at least weigh on the question.

Finally, to quote Louis Brandeis,”It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” Over the last hundred years we have moved away from the idea of the States as laboratories of democracy. This is understandable if somewhat unfortunate. Through the years the States as laboratories have cooked up some distasteful things. The federal government has been a force for positive change and unification during the bulk of the 20th century, shutting down the worst of the laboratories.

With success comes hubris however. Every success, or in the case of government every action that is not a complete failure, causes the federal government to pick the next problem they need to solve. Every new problem results in the expansion of the federal government. I don’t pretend to know where to draw the line when it comes to federal/state boundaries. Without the Seventeenth Amendment I would have no need for an opinion. My state legislator would be responsible for reigning in the Senate, not me. If a state legislature felt that a problem is best solved by the federal government it could allow that. Not the other way around.

Today, the balance of power between the State and Federal governments are out of whack. Lopez notwithstanding, the Supreme Court long ago abandoned stepping into that fight. Without a Senate accountable to state legislatures, the federal government will define its mandate as it sees fit. This has been acceptable for the last hundred years or more. Most of the issues being dealt with were issues where there were clear advantages or necessities to having federal intervention. Civil Rights. Environmental Protection. Securities Laws. Perhaps however, we are now reaching a point where it is not clear whether an issue is federal or state. Education. Marriage. Driver’s licenses. If there is no body capable of defending the turf of the states, they will no doubt cede their territory to the federal government. Whether that is in our best interest or not.