Elliot Young 11.22.

11 POLS 151-04

A Case for the Rediscovery of Federalism: Why the Senate Should Not Directly Represent the People As debates are fashioned, those concerning the Constitution of the United States are among the most heated and most interesting. The composition of the two bodies making up the US House of Representatives and the Senate was a point of contention bitterly fought over at the Constitutional Convention in Philadelphia. At the convention, it was finally decided that the House would have proportional representation according to each states population, and the Senate would have equal representation from each state, and be composed of two representatives from each state, duly elected by the state legislature. The modern debate revolves around whether senators should be popularly elected by the people of the state, or directly by the votes of the state legislature. At the time of its creation, the latter was the case, and not until the Progressive movement did this system of Federalism come under attack. Since the addition of the Seventeenth Amendment to the US Constitution in 1913, senators have been popularly elected by the people of each state. However, in accordance with Article V of the Constitution, each state still has equal representation in the Senate. By itself, the amendment seems to be a moderate reform towards greater democracy, however, considering the intentions of the Founders, it is inherently a usurpation of the power of the states. When senators had been elected by the state legislatures, the interests of the states as a whole were represented because each senator was held responsible for his actions by his state legislature, which would make voting to remove state powers unproductive if he wanted to be reelected. To balance the power of the states and the people, through the House of Representatives, the interests of the people as a whole were preserved. The founders intentions in the creation of this type of government were to preserve the rights and interests of the states and the people, where one could not easily overrule the other, where a willful majority in the House would be checked by the slower, more

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deliberate actions of the Senate. Since the ratification of the Seventeenth Amendment, the rights of the states that preserved Federalism and a republican style of government have been usurped to favor a majoritarian, democratic style of government. In the mind of the Founders, state powers were on a tripartite plane consisting of the aforementioned, the powers of the people, and the powers of the national government. Whenever the rights of the people are infringed, the floodgates of Constitutional controversy burst open, but when it comes to the crafty murder of our Federalism, silence reigns. It is for this reason that the issue of Senate representation warrants special consideration. The first major issue concerning whether the Senate should represent the people is the discord between the facts that in one sense, it already does, and in another, if the intention in the progressive reform was for the Senate to represent the ideas of the people, it does so unequally. In the first sense, the Senate represents the ideas of the people because its members are popularly elected in each state. In the other sense, even if the Senate is popularly elected, population disparities among the states mean that one Senators vote that may represent eight million people can negate the vote of a Senator who may represent two million people. In a sense, this means that the votes of people in high population states are worth less than those in low population states. If the goal of democratization of Senate was to put the power in the hands of the people, the Seventeenth Amendment and other progressive actions were a spectacular failure. The second major issue in this debate is that knowing the facts in issue one, the only way to make the Senate truly represent the people is to remove the equal representation clause of Article V, but this presents an issue in itself. Article V explicitly states that no amendment may remove the equal protection clause without the consent of each state, which would prove fruitless to attempt to procure, and so we are clearly left with blessed few routes to our goal of democratizing the

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Senate. Even if it were possible, in the words of founder James Madison, Yet however requisite a sense of national character may be, it is evident that it can never be sufficiently possessed by a numerous and changeable body. It can only be found in a number so small, that a sensible degree of the praise and blame of public measures may be the portion of each individual.1 Without completely scrapping the Constitution, this goal could only be achieved through the obfuscation of the written supreme law, and because is not grounded in supreme written law, it would be subject to the interpretations of future generations, and not be productive for long-term stability and lasting reform. With the relative impossibility of democratizing the Senate now established, the issue of whether the Senate should represent the people can be further analyzed. In discussing this issue, both modern politics and the original intent of the Founders must be carefully considered. When information of original intent exists, it is much more valuable to finding the true meaning of our supreme law. The Founders werent clairvoyant by any means, but they did have a fairly good grasp of what constituted human nature. Knowing this, they devised the cleverly worded Constitution to be a document for the ages, and not simply something to be reinterpreted with each generation. They knew how important stability is for the preservation of good, limited government and that given the opportunity, a governing document left open to interpretation will be exploited by those in power to the furtherance of that power, and is simply a ticking time bomb, that when set off would cause the destruction of the very liberties they fought and died for. As such, the original intent of the Founders is necessarily one in the same with the text of the Constitution. Separating the two devoids the Constitution of its complete and original purpose. The Federalist Papers are largely a collection of the opinions and intentions of those who framed the Constitution, and in this issue, they explicitly provide the Founders intentions. In
1 Federalist 63: The Federalist Papers, by James Madison

Elliot Young 11.22.11 POLS 151-04

Federalist 62, James Madison, the father of the Constitution, states, It is equally unnecessary to dilate on the appointment of senators by the state legislatures. Among the various modes which might have been devised for constituting this branch of the government, that which has been proposed by the convention is probably the most congenial with the public opinion.2 Concerning original intent, the Founders, the public, and the father of our Constitution agreed on the original method of constituting the Senate. In modern terms, the message of Federalist 62 is that, The House represents the people directly, but the union needs additional checks and balances, and buffers against corruption. The Senate, with its longer terms and direct election by state legislatures, wont be as sensitive to the vacillating emotions of the electorate and will be a more deliberative and reasonable legislative body.3 In addition to the evidence of original intent, the more modern implications of a Senate that represents the people involve the discussion of legislative affairs at both state and federal levels, and campaign finance issues. Montana State Senator Jerry ONeil clearly articulates the problematic results of the Seventeenth Amendment, stating, Prior to the enactment of the Seventeenth Amendment...U.S. Senators discussed federal affairs with their state legislators on a regular basis. At that time, Senators did not have to raise millions of dollars to run for office. They were not beholden to the large corporations. There is no way our Senators are going to personally discuss federal affairs with, and handle input from, 900,000 people.4 Not to mention the issue of campaign finance reform, rescinding the Seventeenth Amendment would put Senators back at the deliberative table with their state legislators, where they can discuss legislative affairs on a manageable scale, and largely out of the pockets of large corporations and
2 Federalist 62: The Federalist Papers, by James Madison 3 Number 62, page 210, The Original Argument: The Federalists Case for the Constitution Adapted for the 21st Century, by Joshua Charles and Glenn Beck 4 Why should we repeal the 17th Amendment and forfeit our right to vote for U.S. Senators? http://www.liberty-ca.org/repeal17/states/montana2003oneil.htm by Montana State Senator Jerry ONeil et al

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other financially influential entities. The latter would happen because they would not be forced to raise millions just to get elected. The issues that manifested from the removal of Federalism are both numerous and potent, but Federalism is more than just preventing corruption. It was a nod to the idea that the power of the national government was not unlimited, and that it was subject to the check of the state governments. Having just emerged from a war of independence from an overbearing and tyrannical national government, it was our Founders way of ensuring that, No law or resolution can now be passed without the concurrence, first, of a majority of the people, and then of a majority of the states.5 The idea behind Federalism was to arm the states with some means of defending themselves against encroachments of the national government.6 The Founders even cautioned us about the dangers of altering this arrangement,7 with Fisher Ames of Massachusetts stating that, the state governments are essential parts of the system...senators represent the sovereignty of the states.8 This balance between state and federal power is Federalism, and as Claremont McKenna Professor Ralph Rossum states, In short, the Senate acted to preserve the original federal/state balance, neither agreeing to further restrictions on the states residuary sovereignty nor embracing measures that would have weakened the federal government.9 Our history as a nation is inherently connected to the idea of Federalism. It is the derivation of the most basic powers of our government, and to selectively remove one of its most important features is akin to removing a kidney just for the sole reason that the body can get along without it, without realizing the long run negative implications of being one kidney short.
5 Federalist 62: The Federalist Papers, by James Madison 6 Remarks in the Constitutional Convention, 7 June 1787, George Mason 7 Federalism and the 17th Amendment: http://www.nccs.net/newsletter/apr95nl.html by the National Center for Constitutional Studies 8 Remarks in the Massachusetts ratifying convention, 19 January 1788, Fisher Ames 9 Federalism, the Supreme Court, and the Seventeenth Amendment: The Irony of Constitutional Democracy by Ralph A. Rossum Ph.D.

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The evidence clearly points to the relative impossibility of completely democratizing the Senate and to the negative consequences of the progressive efforts thus far to democratize the Senate. The Seventeenth Amendment, a progressive reform, was originally intended to get rid of the millionaires club that was supposedly the Senate, but as history has proven, its members have only become more entrenched with big corporations and wealthy financiers. The Seventeenth Amendment has usurped the rights and powers of the states and removed an important check in increasingly dangerous federal power. As such, the Seventeenth Amendments murder of Federalism has come at too high a cost and cannot at all be reasonably justified with any evidence, and therefore cannot stand. Therefore, concerning the debate of the representation of the Senate, the Senate should not directly represent the people, and the damage done to Federalism by the Seventeenth Amendment and subsequent Court rulings must be corrected with all deliberate speed if we are to ensure the stability of our nations future, and the continued freedom of the individual and the state from the increasingly meddlesome federal government.