Thank you both for your reasoning.. Being a States... (
We are accustomed to saying that there are 27 amendments to the U.S. Constitution, but when the Congress directs the Government Printing Office to publish official copies of that text, it employs greater precision. It inserts the following words immediately before the First Amendment: “Articles In Addition To, And Amendment Of, The Constitution Of The United States Of America.”
These distinctions matter, for in truth, most of the 27 articles that follow the original Constitution do not amend its text but are either additions to it or amendments to Supreme Court decisions. Only three actually amend language found in the original text. The 12th Amendment alters Article II pertaining to presidential elections. The 14thAmendment amends the original text (eliminating the 3/5 clause) as well as a Court interpretation of that original text (reversing Dred Scott v. Sanford), and it adds to the original text by declaring that blacks are citizens, requiring, among other things, that states provide due process and equal protection. And the 17th Amendment alters Article I, Section 3 concerning the mode of electing the Senate.
The 12th Amendment’s revision of the operation of the Electoral College was clearly necessary given the rise of political parties, and the 14th Amendment was necessary to redeem the Republic from the gravest flaw of its birth. The 17th Amendment’s provision for direct election of the Senate, however, was not necessary at all. It eliminated the Framers’ principal means of protecting federalism, and it was, in point of fact, a big mistake.
It is rare to hear such a claim these days, and those few who make it are usually not taken very seriously. For example, when Alan Keyes, running for Senate in Illinois in 2004, called for the repeal of the 17th Amendment, Professor Lewis Gould of the University of Texas called Keyes “daffy.”
Now, criticizing the 17th Amendment is not exactly a smart campaign technique, since even on a good day not one in a hundred college-educated Americans has the slightest idea what it is. But it’s not at all daffy. I will argue here that in 1913 the original federal structure of the American Republic, carefully and deliberately designed by the Founders, was radically altered, with important and ironic consequences for the evolution of American democracy ever since.
That most Americans do not really understand what the Framers intended—notwithstanding the neo-classical fad of unalloyed adulation for them in recent years—ought to be obvious, for we have a dead canary in our legal mine. Thirteen times since 1976 (and twelve times since 1992) the U.S. Supreme Court has invalidated federal laws in order to preserve what it has described as “the original federal design.” Why has this proved necessary? Did the Framers expect the Supreme Court to play this role, and if not, what did they expect?
These are not rhetorical questions; investigation into the proceedings of the time turns up actual answers. The Founders certainly did not expect an activist Court to protect federalism. They expected constitutional structure itself, particularly the mode of electing the United States Senate, to protect it.1 It is because the original federal design was amended out of existence in 1913 that the Supreme Court has had to defend the basic federal principle, and the frequency with which the Court has had to do so is itself related to the 17th Amendment.
Following ratification of the 17th Amendment—as well as the 16th, which authorized the federal income tax and also dates to 1913—the power of the national government grew rapidly. It did so for many reasons, but the 17th Amendment was surely one of them. After 1913 the Congress enacted many measures adversely affecting states’ prerogatives that earlier Senates would never have approved. Not only have these post-17th Amendment congressional measures increased in number and intrusiveness, they have also over time become more abstract, discretionary and prescriptive, leading to what Theodore Lowi has called “policy without law.”2 No longer answerable to state legislatures, the Senate felt free to join the House in legislating on every social and economic as well as political problem confronting the nation, even if the resulting measures have amounted to little more than blank checks of authority to the Executive Branch and the Federal bureaucracy. The skyrocketing increase since 1913 in the ratio of bureaucratically mandated regulations to actual congressional law has been the result, one that has weakened not only the states but Congress itself.
When the Court has been called upon to define the line between federal and state power, it has generally done so by invalidating congressional measures that would imbalance the federal system in favor of the national government. Yet, somehow, the Court has failed to understand the source of its own need for activism or the reason that its decisions have tended so strongly in one direction. This myopia is something of a puzzle, because it ought to be clear to any student of the Constitutional period that the Framers made the mode of electing the Senate the principal structural means not only for protecting the interests of the states as states, but also for identifying the line demarcating federal from state powers. That is why on May 31, 1787, early in the Constitutional Convention, the delegates rejected Resolution 5 of the Virginia Plan, which proposed that the “second branch of the National Legislature ought to be elected by those of the first”—in other words, that the Senate should be elected by the House of Representatives. Instead, on June 7 they unanimously accepted a motion by John Dickinson, seconded by Roger Sherman, providing for the appointment of the Senate by the state legislatures.
The delegates were persuaded by Dickinson’s argument that the “sense of the States would be better collected through their Governments than immediately from the people at large”, and by George Mason’s observation that election of the Senate by state legislatures would provide the states with:”some means of defending themselves against encroachments of the National Government. In every other department, we have studiously endeavored to provide for its self-defense. Shall we leave the States alone unprovided with the means for this purpose? And what better means can we provide than giving them some share in, or rather making them a constituent part of, the Nat’l Establishment?”
On June 20, James Wilson, a passionate nationalist, warned his fellow delegates that “a jealousy would exist between the State Legislatures & the General Legislature.” He observed, “the members of the former would have views & feelings very distinct in this respect from their constituents. A private Citizen of a State is indifferent whether power be exercised by the Genl. or State Legislatures, provided it be exercised most for his happiness.” On the other hand, “[h]is representative has an interest in its being exercised by the body to which he belongs. He will therefore view the National Legisl. with the eye of a jealous rival.”
Wilson’s attack utterly failed, not because the delegates disputed his analysis but because they approved the outcome. Since they were committed to preserving the states as political entities, they found persuasive Mason’s assertions that the states would need the “power of self-defense” and that “the only mode left of giving it to them was by allowing them to appoint the second branch of the National Legislature.” Accordingly, on June 25, the Convention reaffirmed its previous decision to elect the Senate by state legislatures by a vote of nine states to two.”3
The service rendered to federalism by this mode of electing the Senate was repeatedly acknowledged during the ratification debates. In Federalist 45, James Madison declared that, since “[t]he Senate will be elected absolutely and exclusively by the State Legislatures”, it “will owe its existence more or less to the favor of the State Governments, and must consequently feel a dependence, which is much more likely to beget a disposition too obsequious, than too overbearing towards them.” In Federalist 46 he further noted that if the House of Representatives were to sponsor legislation that encroached on the authority of the states, “a few representatives of the people would be opposed to the people themselves; or rather one set of representatives would be contending against thirteen sets of representatives, with the whole body of their common constituents on the side of the latter.” The Senate, he assured his readers, would be “disinclined to invade the rights of the individual States, or the prerogatives of their governments.”
59, Alexander Hamilton likewise emphasized that the appointment of senators by state legislatures secured “a place in the organization of the National Government” for the “States in their political capacities.” Had it been otherwise, he continued, “it would doubtless have been interpreted into an entire dereliction of the federal principle.” During the New York Ratifying Convention, Hamilton again explicitly connected the mode of electing the Senate with the protection of the interests of the states:”When you take a view of all the circumstances which have been recited, you will certainly see that the senators will constantly look up to the state governments with an eye of dependence and affection. If they are ambitious to continue in office, they will make every prudent arrangement for this purpose, and, whatever may be their private sentiments or politics, they will be convinced that the surest means of obtaining reelection will be a uniform attachment to the interests of their several states.”
This same argument was also made repeatedly in the early days of the new republic. In a July 1789 letter to John Adams, Roger Sherman emphasized that “[t]he senators, being eligible by the legislatures of the several states, and dependent on them for reelection, will be vigilant in supporting their rights against infringement by the legislative or executive of the United States.” And Joseph Story in his Commentaries on the Constitution of the United States
(1833) observed that one of the “main grounds” for the mode of appointing the Senate was that it “would introduce a powerful check upon rash legislation” and “would increase public confidence by securing the national government from undue encroachments on the powers of the states.”
The Framers favored election of the Senate by state legislatures not simply because it was, as Madison put it in Federalist
62, “the most congenial with the public opinion”, or because it provided, in Hamilton’s words from Federalist
59, incentives for senators to remain vigilant in their protection of the “States in their political capacities.” They also favored it because it helped them sidestep what Madison described in Federalist
37 as the “arduous [task of] marking the proper line of partition, between the authority of the general, and that of the State Governments.”
An episode at the very outset of the Convention is most telling on this point. On May 31, the Convention, meeting as a committee of the whole, had just taken up Resolution 6 of the Virginia Plan that proposed, inter alia
, that “the National Legislature ought to be empowered . . . to legislate in all cases to which the separate States were incompetent.” In his notes of the deliberations of the Federal Convention, Madison reports that Charles Pinckney and John Rutledge “objected to the vagueness of the term incompetent
, and said they could not well decide how to vote until they should see an exact enumeration of the powers comprehended by this definition.” Madison responded to their concerns by expressing his “doubts concerning [the] practicality” of “an enumeration and definition of the powers necessary to be exercised by the national Legislature.” Despite coming into the Convention with a “strong bias in favor of an enumeration”, he owned that, during the weeks before a quorum gathered in Philadelphia (when he and his fellow Virginia delegates drafted the Virginia Plan), “his doubts had become stronger.” He declared that he would “shrink from nothing”, including, he implied, abandoning any attempt to enumerate the specific powers of the national government, “which should be found essential to such a form of Government as would provide for the safety, liberty, and happiness of the community. This being the end of all our deliberations, all the necessary means for attaining it must, however reluctantly, be submitted to.”
In this speech, Madison merely foreshadowed the argument he later developed in Federalist
51, namely, that the power of the new federal government was to be controlled not through an exact enumeration—i.e., through “parchment barriers”—but by “so contriving the interior structure of the government, as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.” Nonetheless, his words were obviously reassuring, for the Convention voted at the conclusion of his speech to accept that portion of Resolution 6 by a vote of nine states “yes”, one state “divided.”