October 29, 2003

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
Comments

OJ:

Its interesting, but I think inconsquential. I do not think that we would get very different seanators or policies if the 17th were repealed or had never been adopted. Statism spread thoughout the western world in the first half of the 20th century regardless of constitutional forms.

Posted by: Robert Schwartz at October 29, 2003 11:31 AM

Repealing the 17th Amendment might weaken federalism even more. Even more than the general populace, state legislatures might select senators according to how much pork the senator can shovel back to his home state. There's little reason to think that a Senator, directly answerable to a state legislature (and probably a former state legislator himself), would resist the temptation and defend federalism.

In fact, federalism would be probably doomed no matter what constitutional structure we have. American Federalism came about in an age when states were jealously sovreign and paranoid about all the other states. It was also a time when people often felt their primary loyalty was to their own state, rather than the USA. (Light Horse Harry Lee once said, "Virginia is my country.") These attitudes are long gone, and federalism went with them.

Posted by: Peter Caress at October 29, 2003 12:49 PM

And "Ten Was Too Many"? The slaves emancipated by the 13th Amendment would have thought that there three too few.

Posted by: Peter Caress at October 29, 2003 3:49 PM

Peter - The text of the 13th could have been squeezed in where the Establishment Clause was left out.

Posted by: pj at October 29, 2003 5:09 PM

I agree with Peter regarding the efficacy of repealing the 17th amendment but it's kind of telling that this era produced the 16th and 17th amendment, the Federal Reserve, the Bolsheviks, the worst economic downturn in our history as well as the early stirrings of fascism. What the heck were those peolple smoking?

Posted by: Tom C., Stamford,Ct. at October 29, 2003 10:29 PM

Sorry, I forgot the 18th Amendment was also a product of the zeitgeist.

Posted by: Tom C., Stamford,Ct. at October 29, 2003 10:49 PM

Peter:

They were covered by the original text.

Posted by: oj at October 30, 2003 5:53 PM

Tom C.:

Why don't you like the Federal Reserve system ?

Posted by: Michael Herdegen at October 30, 2003 10:12 PM

I believe the movement to rescind or repeal the
17th Amendment is the most important issue. This
amendment destroyed our republic, the philosophy
of government contemplated by the Constitution's
framers who proclaimed a "republican form of
government" in Article IV, section 4, and this amendment converted our original form of government into a democracy. The 17th Amendment
robbed the states and consequently the people of
their sovereignties and must be repealed.

Posted by: Sal J. Cardinalli at December 12, 2003 5:12 AM

On April 28, 2004, Sen. Zell Miller (D-GA) introduced a bill to rescind the 17th Amendment. You may see the entire text of his speech on the floor of the Senate at http://www.miller.senate.gov/index.htm.

America Founding Fathers Party has repeal of the 17th Amendment as a plank in its platform. Since "the usual suspects" (mainstream media) will not publicize this bold action, our chairman, Gene Lovell, who is a constituent of Sen. Miller, has contacted the senator to offer the assistance of our party and its members to bring this matter to the attention of the electorate in this election year. It is imperative that every American should know of this proposed legislation, if our Constitutional Republic is to be restored.

Please check our Sen. Millerís website for this most necessary legislation. We also ask that you check out our AFFP website (http://www.americafoundingfathersparty.org). Thank you. God bless our beleaguered Constitution.

Posted by: Melanie K. Wooten at April 30, 2004 11:56 PM

On April 28, 2004, Sen. Zell Miller (D-GA) introduced a bill to rescind the 17th Amendment. You may see the entire text of his speech on the floor of the Senate at http://www.miller.senate.gov/index.htm.

America Founding Fathers Party has repeal of the 17th Amendment as a plank in its platform. Since "the usual suspects" (mainstream media) will not publicize this bold action, our chairman, Gene Lovell, who is a constituent of Sen. Miller, has contacted the senator to offer the assistance of our party and its members to bring this matter to the attention of the electorate in this election year. It is imperative that every American should know of this proposed legislation, if our Constitutional Republic is to be restored.

Please check our Sen. Millerís website for this most necessary legislation. We also ask that you check out our AFFP website (http://www.americafoundingfathersparty.org). Thank you. God bless our beleaguered Constitution.

Posted by: Melanie K. Wooten at April 30, 2004 11:56 PM
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