TEN WAS TOO MANY:

The Seventeenth Amendment and the Death of Federalism (Ralph A. Rossum, October 3-4, 2003, Philadelphia Society)

My comments today are based largely on a book I recently completed for Lexington Books that explores the Seventeenth Amendment and the death of federalism. Entitled Federalism, the Supreme Court and the Seventeenth Amendment: The Irony of Constitutional Democracy, it is also a critical commentary on the spate of controversial federalism decisions recently handed down by an activist U.S. Supreme Court. Thirteen times since 1976 (and, with much-greater frequency, twelve times since 1992), the Court has invalidated federal laws--many of them passing both houses of Congress by wide margins‹in order to preserve what it has described as "the original federal design." In the book, I challenge the Court's fundamental jurisprudential assumptions about federalism and argue that (1) the framers did not expect federalism to be protected by an activist Court but rather by constitutional structure--in particular, by the mode of electing the United States Senate; (2) the political and social forces that culminated in the adoption and ratification of the Seventeenth Amendment eliminated that crucial structural protection and thereby altered the very meaning of federalism itself; and (3), as a consequence, the original federal design has been amended out of existence and is no longer controlling--in the post-Seventeenth Amendment era, it is no more a part of the Constitution the Supreme Court is called upon to apply than, for example, in the post-Thirteen Amendment era, the Constitution's original fugitive slave clause.

I argue in the book that the framers understood that federalism would be protected by the manner of electing (and, perhaps most importantly, re-electing) the Senate. However, the adoption and ratification of the Seventeenth Amendment, providing for direct election of the Senate, changed all that.

The Seventeenth Amendment was ultimately approved by the United States Congress and ratified by the states to make the Constitution more democratic. Progressives argued forcefully, persistently, and ultimately successfully that the democratic principle required the Senate to be elected directly by the people rather than indirectly through their state legislatures. The consequences of the ratification of the Seventeenth Amendment on federalism, however, went completely unexplored, and the people, in their desire to make the Constitution more democratic, inattentively abandoned what the framers regarded as the crucial constitutional means for protecting the federal/state balance and the interests of the states as states.

Following ratification of the Seventeenth Amendment, there was a rapid growth of the power of the national government, with the Congress enacting measures that adversely affected the states as states--measures that quite simply the Senate previously would never have approved. For the initial quarter of a century following the amendment's ratification in 1913 and then again for the last quarter of a century, the United States Supreme Court's frequent reaction to this congressional expansion of
national power at the expense of the states was and has been to attempt to fill the gap created by the ratification of the Seventeenth Amendment and to protect the original federal design. It has done so by invalidating these congressional measures on the grounds that they violate the principles of dual federalism; go beyond the Court1s narrow construction of the commerce clause; "commandeer" state officials to carry out certain federal mandates; exceed Congress's enforcement powers under Section 5 of the Fourteenth Amendment, or, most recently, trench on the states' sovereignty immunity. In so doing, it has repeatedly demonstrated its failure to appreciate that the Seventeenth Amendment not only eliminated the primary structural support for federalism but, in so doing, altered the very nature and meaning of federalism itself.

There is irony in all of this: An amendment, intended to promote democracy, even at the expense of federalism, has been undermined by an activist Court, intent on protecting federalism, even at the expense of the democratic principle. The irony is heightened when it is recalled that federalism was originally protected both structurally and democratically--the Senate, after all, was elected by popularly-elected state legislatures. Today, federalism is protected neither structurally nor democratically--the ratification of the Seventeenth Amendment means that the fate of traditional state prerogatives depends entirely on either congressional
sufferance (what the Court calls "legislative grace") or whether an occasional Supreme Court majority can be mustered.

The book argues that federalism as it was understood by the framers‹i.e., the "original federal design"--effectively died as a result of the social and political forces that resulted in the adoption and ratification of the Seventeenth Amendment

To the extent that Mr. Rossum's argument is compelling it just confirms what an abomination the 17th Amendment is.

Posted by Orrin Judd at October 29, 2003 7:24 AM