Federalism, The Senate, And The Constitution – Guest Essayist: Andrew Langer

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“[T]he Constitution divides authority between federal and state governments for the protection of individuals…federalism secures to citizens the liberties that derive from the diffusion of sovereign power.” New York v United States (1992)

The essence of our Republic is summed up in this phrase from this 1992 Supreme Court decision.  In it, Justice Sandra Day O’Connor lays out the very nature of our system of government:  we have a federalist system, a system of divided powers, diffused as a check against the kinds of centralized authorities that are prone to abuse individual rights.

The founders, and their forebears, were deeply suspicious of centralized power.  Britons in the pre-Magna Carta era had seen their rights abused by a series of tyrannical monarchs, and post-Revolutionary War Americans had seen the abuses of a king an ocean away whose despotism had descended into tyranny.

It was with that in mind that the Constitution was created as a document that turned the nature of government on its head.  Power, narrowly and carefully ceded, flowed from the people to their government.  Those powers were carefully laid out in the Constitution, and they added a Bill of Rights as a further constraint against government power—being even more careful to add 9th and 10th Amendments to ensure that their descendants would understand that all that was not surrendered by the people was retained by them, that because certain rights were enumerated that didn’t mean that other rights didn’t exist, and that those powers that had not been given to government were reserved to the people.

The founders were explicit about this because they knew that over time, people would come to forget the tyrannies Americans had faced at the beginning of our nation’s history (and before).  They knew that successive generations would tinker with the Constitution in the inevitable quest to “form a more perfect union.”

They knew that these generations would fail to understand the balance, and that power would shift between the various branches (through ignorance, or laziness, or the very-human thirst for power).  Power is vested in Congress, for instance, to make law.  But if Congress, because of the political pressures of elections, doesn’t want to be specific in terms of legislation, they will pass vague laws and leave it to the Executive Branch to interpret—sometimes allowing that branch to make up wholly new laws.[1]

The founders created an additional diffusive check on power by making the two houses of Congress entirely different from one another.  A “people’s house” – the House of Representatives, representing smaller districts for two years at a time, and an “upper house”—the Senate, where they would represent whole states, and gain a greater depth of wisdom with six-year terms.

But… the Founders also recognized that a six-year term could make these Senators less-accountable to their constituents.  So they added an additional check:  having these senators appointed by their state legislatures instead of having them directly elected by the people.

While certainly not being as “democratic” as direct elections would be, one has to remember, again, that the United States are not a “democracy” but a “republic” – founded in the principles of federalism, representationalism, and, certainly, democracy.  The founders were interested in good governance, accountability, and ensuring that power wasn’t concentrated.

Having senators appointed by legislatures actually allowed for greater accountability.  Consider, U.S. senators represent whole states.  It becomes inordinately difficult for these senators to develop relationships with the vast majority of a state’s citizens.  It therefore becomes difficult for these citizens to exert pressure on their senators on key issues.

On the other hand, state legislators have close relationships with their constituents (within reason), and can distill their wishes relatively easily for translation to a senator appointed by a state legislature.  Add to this the pressure of being able to be recalled by a legislature, and you get a fairly agile check on federal legislative authority.

Unfortunately, in an era in which well-meaning but misguided activists were pushing for greater levels of democracy for democracy’s sake alone[2], the 17th Amendment was introduced, passed, and ratified… and the ability of a state’s citizenry to effectively check the power of the U.S. Senate was extinguished.

In the modern era, we see this in a variety of ways—both in terms of positive and negative influence on legislation.  Good pieces of legislation passed by a House of Representatives still able to be activist go to the Senate and languish, while bad pieces of legislation go to the floor, immune from the pressure of local activists.

The founders had the foresight to create a federalist system where power was carefully balanced, checked and diffused.  They wanted to make a Senate that was accountable to the people.  The 17th Amendment changed that careful balance, and the American people are still reaping the ill-fruit of this decision today.

Andrew Langer is President of the Institute for Liberty and host of the Andrew Langer Show on WBAL NewsRadio 1090

[1] This is how an isolated patch of wet soil can be declared a “navigable water of the United States” for the purposes of regulation under the Clean Water Act, for instance.

[2] Despite claims that senators appointed by legislatures were more apt to be corrupted, there is scant evidence that this was actually the case.  In contrast, senators that cannot be recalled by their legislatures are virtually immune from being punished by the voters for their misdeeds.  Cf. The Keating 5 Scandal, various senators being indicted and not rejected from office, etc.

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