The better part of federalism

I'm fascinated by federalism schemes and blueprints to divide power in ways that (1) respect local decision-making, (2) lodge power to address problems impacting the whole at the federal level, and (3) protect freedom and power distribution through systemic checks and balances. These concerns have been at the root of this blog's call for repealing of the Seventeenth Amendment. This is an important topic, not only for the cause of freedom in the United States and within the American constitutional order, but also so humans can learn how to scale politically. While I am an American patriot and love our constitutional system of government, I am also a human who shares this one earth we humans have with 7 billion other people. To survive, I believe we will need to form some kind of loose world government that respects the diversity and freedom of various nations while enabling humanity to solve problems that loom on a global scale and threaten the species (climate change and nuclear proliferation, to name two obvious ones).

 The consistent challenge with all federalism structures is the irresistible gathering of power at the federal (top) level, forcing one-size-fits-all solutions on localities that are very different from one another in geography, history, culture and customs. While this consolidation of power plagues the Federal Republic of Germany as well, Germany's implementation of federalism is unique. (At least I am not aware of any other federal state or treaty organization that has replicated it.) According to The Constitution of Germany, legislative power is concentrated in the federal Parliament, but federal law is largely enforced through the German states (the Länder). This "executive federalism" would in theory ensure that the enforcement of laws is balanced with the local needs of the states and the people, respecting local sovereignty and freedoms. While the states have apparently been divested of most legislative power (for example, taxes for the states are completely set at the federal level), the states have direct involvement in the German federal law-making process through the Federal Council (Bundesrat). State representation in the Federal Council is composed of state government delegations, often led by the state's prime minister. (For German readers who disagree with this assessment, I would love to hear your perspective in the comments.)

While I would not replicate the consolidation of all legislative power into the U.S. Congress, I think the German model has some lessons for the United States. Even if the U.S. did not amend its Constitution to change the composition of the Senate, devolving enforcement of U.S. federal laws through the state governments rather than independent federal agencies could provide a missing check on federal overreach. Through executive federalism, there is a good chance that the U.S. could gain the benefits of a common federal framework to problems of an interstate nature while avoiding the oppression of one-size-fits-all solutions. This would also trim the federal bureaucracy, which is extremely bloated (there is no way the United State government needs over 2.8 MILLION civilian workers), unresponsive (who can possible respond to 80,260 pages in the Federal Register), and has of late assumed delusions of grandeur that it is authorized to make laws.

Liberty's call: messy and the stuff of life

Our Consolation must be this, my dear, that Cities may be rebuilt, and a People reduced to Poverty, may acquire fresh Property: But a Constitution of Government once changed from Freedom, can never be restored. Liberty once lost is lost forever.

--John Adams

Regarding the siege of Boston; Letter to Abigail Adams - Philadelphia [July 7th, 1775]

I am for a government rigorously frugal and simple, applying all the possible savings of the public revenue to the discharge of the national debt; and not for a multiplication of officers and salaries merely to make partisans, and for increasing by every device the public debt on the principle of its being a public blessing.

--Thomas Jefferson

Letter to Elbridge Gerry (statesman and diplomat) [1799]

Democracy is messy business because humans are messy. We hear continued lamentations over how antiquated our Constitution is (although it was good enough to rise up the most powerful and prosperous nation in history) and how dysfunctional our Congress is, yet somehow we continue to govern ourselves in freedom and respect for the law. We have seen compromise win out time and again over the past ten years, in this time of supposed hyper-partisanship and "extremists" of each Party acting as terrorists (Biden's words, not mine). The debt ceiling / deficit reduction compromise is the latest case in point. It is by no means perfect, but no compromise is. No one likes it, because every side had to give up something they desperately believe in. And it is only the first step in a very painful and protracted journey to get our financial house in order. But none of this changes the fact that our Constitution and, even if somewhat belatedly, Congress works as designed (or amended - see Repeal the Seventeenth Amendment).

If the federal government's spending spree of the past ten years (and, truth be told, of the past fifty) proves anything about our Constitution, it's not how antiquated it is. The lesson to be drawn, to those with eyes to see past their own petty paradigms and presumptions, is just how right the Founding Fathers were and how relevant their counsel still is. The Constitution in Article 1, Section 8 lays out the parameters of federal power, and the specifics were limited in their application to the whole (through the general welfare clause) so that Congressmen could not play favoritism. It is our excursions beyond the bounds of the Constitution that have gotten us into financial trouble:

• Social Security
• Medicare / Medicaid / Universal health care
• The Department of Education / No Child Left Behind
• The Department of Energy

These behemoth social welfare programs have squeezed our spending for the business the federal government should be about according to the Constitution:

• Defense
• Regulation of interstate commerce
• International affairs
• Scientific exploration
• The Post Office (and, by extension of the principle, building out and supporting the interstate infrastructure)

We have strayed from the Constitution's bounds, but it still provides the governing superstructure for us to successfully resolve our differences in a peaceful way. The fact that our political process has become more slow and more prone to gridlock is indicative only of the many different areas of governance that Congress has stuck its nose in over the years that cannot be managed on such a large level. Regulation, the police power, health care, education - these are matters for the states because these are the things people are most passionate about. These are the things that impact their lives most day-to-day and the need for decision-makers to be close to the people is real. Also, these are areas where people with different worldviews (metanarratives) most violently disagree, so providing options among states is important. If people don't like what one state is doing, they can fairly easily move to other states. It is easier to gain consensus and move into action at the state level. The machinery is more nimble and smaller scale.

The scale of the federal government is needed on matters of collective, continental interest.

To adapt the famous Chesterton quote from its original Christian context: the Constitution has not been tried and found wanting; it has been found difficult and not tried.

 

 

The Repeal Amendment or State Vetoes

Representative Rob Bishop has introduced the so-called Repeal Amendment in the House of Representative as a proposed amendment to the Constitution. The idea is to give the states a mechanism to preserve federalism from their end:

The U.S. Constitution, as drafted by the Founders, designed a system that created a balance of power between state and national government. That original balance has eroded as the federal government has accumulated more and more power in Washington. The Repeal Amendment will help restore the spirit of the Tenth Amendment by strengthening the ability of States to protect those powers “reserved to states”—as outlined in the Bill of Rights.

This is a much more practical alternative to the nullification option proposed by Texas-based constitutional lawyer Jon Roland.

While I have not vetted the text of the proposed amendment or seen much analysis of its projected ability in enabling its objective, here is the wording submitted by Representative Bishop:

"Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed."

 

Amar's Bill of Rights: the Founder's First Amendment

Before we venture into the Bill of Rights that is familiar to us, let us examine what Akhil Reed Amar has to say in his book The Bill of Rights: Creation and Reconstruction about the amendment that James Madison listed as first in the First Congress:

Article the first.... After the first enumeration required by the first Article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which, the proportion shall be regulated by Congress, that there shall be not less that one hundred Representatives, not less that one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, not more than one Representative for every fifty thousand persons.

This proposed amendment was passed by the Congress and proposed to the States, but it fell one state short of the requisite three-fourths needed to ratify it. We shall examine why in a moment, but its failure to be ratified means it is obscure to many in this day and age. Nevertheless, its prominence on the list of so many weighty amendments reveals the importance the Founding generation placed on erecting proper safeguards in the government structure to ensure the liberty and rights of society. While we are used to the federal government, especially the courts, championing and advancing the rights and freedoms of the people, the federal government was still unproven in 1787. Anti-Federalist fears were centered around the small size of the House of Representatives and the lack of a Bill of Rights that would explicitly remove certain areas from Congress' purview of legislation.

Probably the deepest Anti-Federalist objection to the Constitution was that the document took the skimming principle too far: Congress was too small, too rich, too "refined." Indeed, this structural concern underlay most of the Anti-Federalists' other arguments. Because the legislature was so small, the Anti-Federalists feared that only great men with reputations spanning wide geographic areas could secure election. [Amar 10-11]

So the Anti-Federalists fell squarely in line with the views of traditional replublicanism, classically expressed by Montesquieu:

It is natural for a republic to have only a small territory; otherwise it cannot long subsist. In an extensive republic there are men of large fortunes, and consequently of less moderation; there are trusts too considerable to be placed in any single subject; he has interests of his own; he soon begins to think that he may be happy and glorious, by oppressing his fellow-citizens; and that he may raise himself to grandeur on the ruins of his country.

In an extensive republic the public good is sacrificed to a thousand private views; it is subordinate to exceptions, and depends on accidents. In a small one, the interest of the public is more obvious, better understood, and more within the reach of every citizen; abuses have less extent, and, of course, are less protected. [Montesquieu, Spirit of Laws, Book 8, Ch. 16]

The Federalists knew that this was a legitimate concern, and Madison, Hamilton, and John Jay, famed authors of The Federalist Papers, devoted the first section of their work to this topic. Madison's Federalist No. 10 is today a great treatise on the implementation of a Republic over a great mass of land and people, but extensive republics were untried in the eighteenth century, and it was far from certain that the scheme as laid out in the new Constitution would work. So Madison sought a compromise with the Anti-Federalists and proposed his First Amendment that increased the size of the House from that prescribed in Article 1, Section 2 of the Constitution: "the Number of Representatives shall not exceed one for every thirty Thousand" constituents.

So if the proposed amendment would increase the size of the House and this was such a burning concern, why did the amendment fail to obtain ratification? According to Amar, several reasons present themselves:

• The amendment's mathematical formula made little sense and introduced too great of a complexity. The word "more" was strangely substituted for the word "less" in the last sentence of the amendment: "not more than one Representative for every fifty thousand persons." Unless the U.S. population rose from 8 to 10 million in the first decade, this provision would have proved inconsistent with the requirement preceding in the same clause, that there "not be less than two hundred Representatives".


• What the amendment gave in the short-run - a larger House - it took away in the longer run. The final clause established a maximum on the House's size, rather than a minimum. Whether Madison purposefully slipped in this language to enforce a maximum size, we can only speculate. His original wording did include a maximum size, but Congress had rejected that idea. Perhaps he saw an opportunity to reintroduce the maximum principle once he was on the conference committee for the twelve proposed amendments. After all, Madison was quite clear of his philosophy on the proper size of a legislative body in Federalist No. 10:
  

  
  It must be confessed that in this, as in most other cases, there is a mean, on both sides of which inconveniences will be found to lie. By enlarging too much the number of electors, you render the representatives too little acquainted with all their local circumstances and lesser interests; as by reducing it too much, you render him unduly attached to these, and too little fit to comprehend and pursue great and national objects.
  



• Small state like Delaware (which ratified the ten amendments that did pass) might have been seeking to preserve the advantage a smaller House provided them. Since every state is guaranteed at least one Representative in the House, increasing the size of the House would have diluted the voting power of a small state.

Regardless, if Madison's First Amendment had become our First Amendment, it would be harder for us to miss the fact that the original Bill of Rights was more concerned with governmental structure than it was about individual and minority rights. If that had been the case, the Bill would begin and end (in the form of our Tenth Amendment) with articles unmistakeably added to deal with structural issues.

The option of nullification

This is a very good article by libertarian constitutional scholar, Jon Roland, on the serious option of nullification available to state legislatures.

In law “nullification” is not repeal or rescission of statutes or executive or judicial actions. It is the result of a sustained, widespread refusal to cooperate with them, until those attempting to enforce the actions are confronted with the unpalatable choice of either backing down or resorting to murderous brutality.

To say federal laws are always supreme just because Congress passes them makes a mockery of the principles of federalism that have always guided the governance of this Union, whatever the flavor of federalism of the day. We need to build some structural checks and balances into the state / federal relationship to reinforce federalism. Jon's proposed amendment to the Texas and other state constitutions seems to me to be a very good idea, serving as a possible institutionalized relief for the pressure that builds up against instances federal over-reach.

1. Commission. Establish a "Federal Action Review Commission" ─ a special commission with grand jury powers to meet continuously with rotating membership drawn from a pool of legal historians and constitutional scholars, appointed by the Governor, Attorney General, or Legislative Council; empowered to review the constitutionality of congressional legislation, or federal regulations or decisions, and if it finds such legislation, regulations, or decisions to be unconstitutional, to issue an edict, with the force of law, requiring that no state or local officials, employees, or contractors cooperate in the enforcement of it, and urging state citizens to refuse to cooperate. This Commission would be established by an amendment to the Texas Constitution.

2. Structure and procedure. The Commission shall consist of 23 members, who shall serve for staggered terms of 4-8 months, drawn at random from a pool of at least 230 constitutional scholars and legal historians, who shall meet for at least one hour once a week, with a quorum of 16, and a vote of 12 required to issue an edict, based on a presumption of nonauthority of federal officials and agents and requiring strict proof of constitutionality from deductive logic and historical evidence. It shall be open to direct complaints of the unconstitutionality of federal actions from any citizen. It shall have the power to subpoena witnesses, and its deliberations shall be secret, except that it may disclose anything in its presentments. It may authorize criminal prosecution by issuing an indictment to any person, not necessarily a lawyer, upon a finding that the court cited has jurisdiction and that evidence of guilt is sufficient for trial.

3. Penalties. State and local officials, employees, and contractors shall be duly notified in writing of such edicts within ten days and shall have twenty days to comply or be subject to termination after one written warning and a second failure to refuse to cooperate with federal officials or agents.

4. Funding. Establish a state fund to pay for legal and financial support of state citizens and officials who refuse to cooperate with unconstitutional federal statutes, regulations, or decisions, with the intention to obtain judicial decisions that support the unconstitutionality of the federal actions.

America in Decline?

I like to listen to podcasts of The Diane Rehm Show every now and then. It provides a calmer, more detailed analysis than one can generally glean from Cable News shows.

This week I was listening to a podcast of one of last week's shows - "America in Decline?" Diane Rehm started off with a story that one of the country's professional organizations of engineers gave America's infrastructure the grade of "C" 20 years ago. A recent analysis by the same group updated America's infrastructure grade to "D", warning that certain parts of our infrastructure were in such disrepair that they were in imminent danger of collapse. It would take $2.2 trillion (with a "t") to bring our infrastructure up to date.

Rehm used this as a springboard to ask her guests the broader question - "Is America in decline and, if so, what do we need to be doing as a society to turn things around?" The concern was entirely focused on infrastructure - the flight control system, roads and bridges in the Northeast (especially older ones built in the 19th century), our relatively slow and spotty mobile networks, our clogged sea ports, and the declining capacity of our power grid and refining capabilities. The argument made by the guests was that American society is good at reinventing itself when it comes to business and local issues, but when it comes to large-scale systems that require national / federal coordination, it fails miserably because of our "antiquated political institutions" (read Congress).

This continues a theme among left-leaning folk that I that, frankly, baffles me. The story they are wanting to promulgate seems to be that the federal government coordinated national responses to truly national problems well through year 19XX (e.g., Eisenhower's National Highway System, Sputnik, and Arpanet research that led to the Internet). Then Corporatism, Oligarch-ism, Elitism, or some other -ism took hold 25-30 years ago, broke the consensus over the proper role of the federal government, and the U.S. has progressively developed more brittle and patch-worked responses to national issues ever since.

It seems to me, however, that this is too simple of a story. The United States is a truly federal system, and any problem that has been met with a federal response has generally been one that is defense in nature (e.g., the National Highway System and Sputnik were driven by Cold War concerns) or is so ripe that a true national consensus has formed to move Congress to action (e.g., Social Security). But these have been the exception, rather than the rule. Health care, the power grid, and the majority of the national roads and highways, among others, have always been patchwork systems, cobbled together by the states or by regional cooperative action. And it's not easy to patch or totally remake patchwork systems from the top down.

The liberals' story, I think, misses the point. They readily acknowledge that America's culture is still vibrant and the most inventive in the world. They point to the inventiveness and initiative of American citizens. But they bemoan the fact that the "antiquated" federal systems of governance were designed to stop things. They see this as a bad thing, but it is, in truth, what has been at the root of America's ability to prosper and grow for over 200 years. The traditional American view has been that government should do a few things well - defend its citizens and create a stable space within which they can chase liberty and happiness. Other than this, government should get out of the way. Let the citizens do the rest.

If any consensus has been broken over the past 25-30 years, it has been the liberal vision of an "efficient" national government. For 30 years after the 1930's, the New Deal Coalition ran the federal government more as a national government than a federal one, in which one-size-fits-all solutions were imposed upon the nation (the minimum wage law in American Somoa impacts the local population differently than in New York. Roe v. Wade is received differently in San Francisco than the Bible Belt.

The U.S. is a big, diverse Union. Rather than exposing the nature of our federal institutions as somehow problematic, perhaps the issues we are now faced with are testimony to the fact that the federal government is not the mechanism through which to deal with these types of problems.

Our Debt to Machiavelli

In reading Machiavelli's "Discourses on Livy" - chapter II, I found the following,

...because when there is in the same City (government) a Principality, an Aristocracy, and a Popular Government (Democracy), one watches the other.

This sounds suspiciously like our three branches and their checks and balances. In his study of human forms of government and his theory on how each form degenerates into the next, he covers much ground which hopefully wasn't unfamiliar to our founders.

My question is, why is Machiavelli not more widely read, and what evidence is there of his influence on the Founding of the United States of America? The obstacles toward forming a government of the people were rigorously debated during the Continental Congress (and the Constitutional Congress that followed). Were the lessons of Machiavelli ever credited to him or were they borrowed for the convenience of the general discussion?

Health care reform and the general welfare clause, Part II

As the health care reform debate has raged on and bills have taken shape in the Senate and even passed the House, the so-called individual mandate has become a central part of most reform packages under consideration. This is a different twist from the angle under which I considered the constitutionality of health care reform in the article Health care reform and the general welfare clause, and, constitutionally, it must be a deal breaker.

It is a settled constitutional fact that Congress can spend federal tax revenues on any program that it feels advances the general welfare, whether the form of that spending takes the form of direct grants, tax credits, tax deductions, or subsidies is of little consequence constitutionally. If Congress wants to set up incentives to give people tax deductions for buying health insurance, for example, or send subsidies directly to people / families who make less than four times the federal poverty rate, then it is acting within its constitutional prerogative.

However, there is no constitutional power delegated to Congress allowing it to impose fines on people for not buying health care insurance. There is a big difference, philosophic and constitutional, between incentivizing people towards desired behaviors and punishing them for not following a prescribed mandate. Article 1, Section 8 and the Fourteenth Amendment form the boundaries within which Congress may legislate, and outlawing a lack of health care insurance is simply not within those boundaries.

This is undoubtedly a power of a State, but not a delegated power of the federal government.

Health care reform and the general welfare clause

One of the questions guiding the discussion over health care reform is part of a larger, more fundamental debate that has been going on in America since before the ratification of the Constitution: what is the proper role of government? In the current context, constitutional scholars point to the General Welfare Clause in Article 1, Section 8, Clause 1 (bold emphasis mine)::

The Congress shall have power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States

Mainstream constitutional interpretation reads this as a direct grant of power to Congress to spend money on anything it deems necessary to secure the general welfare, including programs of social insurance. Since Social Security was judged constitutional by the Supreme Court in 1937 in the cases Steward Machine Co. v. Davis and Helvering v. Davis, the General Welfare Clause has been seen as a broad grant of power to the Congress to spend money for purposes that benefit the country as a whole. While this clause is not interpreted as enabling Congress to legislate in the internal affairs and governance of the States, it does provide Congress broad discretion in the areas that it can spend federal money. So long as funds are not spent for purely local purposes, Congress is not limited on the types of programs and projects for which it can appropriate.

But this was not the original principle upon which the Constitution was founded. James Madison and Thomas Jefferson envisioned the Constitution as granting specific, enumerated powers to the federal government, as detailed in Article I, Section 8, Clauses 2 through 17. The general welfare for which Congress could expend revenue in Clause 1 was limited by the rest of Article I, Section 8. Otherwise, as Madison posed the question in a letter to Andrew Stevenson, "why, on that supposition [that the phrase general welfare provided expansive powers to the Congress], so much critical labour was employed in enumerating the particular powers, and in defining and limiting their extent?"

Madison was arguing against the more expansive interpretation of the General Welfare Clause pushed by Alexander Hamilton, as classically expressed in Hamilton's 1791 Report on Manufacturers:

The terms "general Welfare" were doubtless intended to signify more than was expressed or imported in those which Preceded; otherwise numerous exigencies incident to the affairs of a Nation would have been left without a provision. The phrase is as comprehensive as any that could have been used; because it was not fit that the constitutional authority of the Union, to appropriate its revenues shou'd have been restricted within narrower limits than the "General Welfare" and because this necessarily embraces a vast variety of particulars, which are susceptible neither of specification nor of definition.

Although the Madisonian interpretation of "general welfare" was the overriding perspective throughout the nineteenth century, Hamilton's view was the interpretation that finally won out in the Supreme Court's Steward Machine and Helvering cases. Because the federal programs that have grown out of the New Deal augmented and, in many cases, overrode founding principles, fundamentals of constitutional interpretation have been irrevocably changed through the political process set up by the Constitution itself (a move that falls within the structure of the Governance Imperative, but a move, nonetheless, aided by the passage of the Seventeenth Amendment and the loss of the States to their direct representation in the federal legislative process). Because of what the vast majority of the American people now expect, it must be conceded that health care reform would fall within the purview of the general welfare, even though the concept of governmental welfare was poisonous to society in the view of the founders.

Benjamin Franklin's wrote in 1776 in his On the Price of Corn and Management of the Poor:

I am for doing good to the poor, but I differ in opinion of the means. I think the best way of doing good to the poor, is not making them easy in poverty, but leading or driving them out of it. In my youth I travelled much, and I observed in different countries, that the more public provisions were made for the poor, the less they provided for themselves, and of course became poorer. And, on the contrary, the less was done for them, the more they did for themselves, and became richer.

A principle even more fundamental than enumerated federal powers animates the American engine even today: each man is able to apply his talents and contribute to the marketplace as he is able, retaining for himself the fruits of his labor. What a man earns is his own and is not subject to government seizure and redistribution. Jefferson wrote in a letter to Joseph Milligan in 1816:

To take from one, because it is thought that his own industry and that of his fathers has acquired too much, in order to spare to others, who, or whose fathers have not exercised equal industry and skill, is to violate arbitrarily the first principle of association, "the guarantee to every one of a free exercise of his industry, and the fruits acquired by it." If the overgrown wealth of an individual be deemed dangerous to the State, the best corrective is the law of equal inheritance to all in equal degree; and the better, as this enforces a law of nature, while extra taxation violates it.

Whether we are ready to move another step beyond this first principle is at the heart of the health care reform debate, but there are no constitutional barriers to health care reform's passage.

Bush's Final Report Card

Bush Wins and Losses

Stem Cell Research - L
Intelligence plane over China incident - W
9/11 - W
Afganistan - W
WMD - L
Iraq - L
The Surge - W
Mission Accomplished banner - L
Plamegate - L
No pardon for 'Scooter' Libby - W
Abu Graib(sp) - L
Guantanamo Bay - L
Torture/waterboarding - L
Supreme Court Nominees - no decision
Katrina - L
Head of FEMA nomination - L
Stimulus package 1 - L
Stimulus package 2 - L
SEC oversight - L
Financial industry oversight - L
Darth Chaney - L
unitary executive theory - L
VP part of the legislative branch - L
Politization of science policy - L
Firing of 8 Federal Procecutors - L
Keeping Rumsfeld too long - L
'Axis of Evil' - L
North Korea - W
Iran - L
Canning Kyoto - no decision
“Enhanced interrogation of terrorists.” - L
Rebuilding presidential authority - L
Mid-east policy - L
No Child Left Behind - L
Medicare prescription drug benefits - L
Better relations with east Asian democracies - W
Compasionate Conservatism - L
Global Gag Rule - L
Terri Shiavo - L
Extraordinary Renditions - L
Relations with Russia - L
Relations with Europe - L
Relations with South America - L
Genocide in Africa - L

I'll add more to this as I think of them.

Direct election of the President

There was some discussion in the 1970s of a proposed constitutional amendment to elect the president by popular election. One version of the proposed amendment can be found online here: 1977 version.

The reasons for desiring a change to the way Americans elect our President are obvious. "One man, one vote" has become the default election paradigm through various court rulings, constitutional amendments, and evolutions of our democratic traditions over time. That the states with smaller populations have proportionally more votes than the people of larger states through the electoral college seems inherently unfair to us.

Another reason to get rid of the electoral college is the problem of the faithless elector. While this has not historically been much of a problem, the possibility exists that a faithless elector or two could change the outcome of a presidential election in a very tight race, where one or two electoral votes separates the candidates.

The electoral college is not the institution that the Founders envisioned that it would be, if it ever was. The Founders meant for the electors to act as a "buffer" to the passions of the general public. They were to represent the people, but at the same time, they were to supply wisdom and deliberation to the selection of the Republic's next Chief Magistrate. Now, however, when a Party's nominee wins a state in the general election, said Party will choose loyal activists who pledge to vote for the Party's nominee when the electoral college formally meets. The electoral college has, in essence, become an out-of-date formatily.

As discussed in a 1970 report issues by the Senate Judiciary Committee, there are several benefits that the electoral college brings to American presidential elections:

• encourages the building of broad, geographically-dispersed majorities to elect a candidate that can win a majority of the electoral college, leading to more stable, moderate Governments that respect the rights of minorities;


• important support for maintaining federalism and the role of the States in the federal government (if we repealed the Seventeenth Amendment, I think this would be less of a worry);


• structurally enforces the U.S. two-party system;


• contains recounts to specific states or election precincts;


• allows control and responsibility of election process and administration to be maintained at the state and local levels, rather than at the federal level.

While I'm not sure about the claim that going to a direct election scheme would remove an underpinning of the two-party system, the support the electoral college lends to federalism and the containment of electoral recounts is obvious. Combined with the fact that State Legislatures have established direct election as the method by which their respective State electors are chosen (a power granted State Legislatures under the Constitution), and we can see why there is not the supermajority of support required to pass a proposed constitutional amendment to institute the direct election of the President. In essence, there are fifty state elections for president, rather than one national election. For the benefits that the electoral college bring, I'll be OK with the individual voter of Wyoming and Iowa having a greater proportional influence than the individual voter in Texas (my home State), New York and California.

The Unites States is, after all, a democratic republic, not a pure democracy.

Proposed Amendment #2: Repeal the 17th Amendment

The Text

Section One. The Seventeenth Article of Amendment to the Constitution of the United States is hereby repealed.

Section Two. The Senate of the United States shall be composed of two Senators from each State, selected by the legislature of each State. Each Senator shall serve a six-year term and may be re-appointed. Each Senator shall have one vote.

Section Three. Senators are subject to removal by the State Legislature. Removal of a Senator requires a majority of each House of the State Legislature.

Section Four. Congress is precluded from enacting any legislation affecting the senatorial selection process. Each State Legislature shall enact rules and procedures, consistent with this section, related to the selection and removal of Senators.

Section Five. This amendment shall not be so construed as to affect the term of any Senator chosen before it becomes valid as part of the Constitution.

The Problem
The Constitution originally provisioned for state legislatures to select each state's two senators. The idea was for the Senate to represent the interests of states as states, not simply as another chamber representing the same constituency as the House of Representatives. The Federalist Papers speak time and again of checking the passions of men and balancing the branches of government by using competing interests and differing power sources to prevent one group from gaining domination. A Senate that was, in essence, composed of ambassadors from the several States provided a balance in the deliberation of federal legislation and foreign policy because the origin and composition of its membership was different from that of the House.

Corruption in the senatorial selection process and deadlocked legislatures led to states going years without representation in the Senate and the perception that the Senate did not represent the interests of the People. Agitation for changing the way Senators were selected grew throughout the 19th century, culminating with the Progressive Movement of the early twentieth century and the passage of the Seventeenth Amendment to the U.S. Constitution in 1913. Direct election of U.S. senators was instituted, removing the place of the States in the federal scheme (left only with the chance to lobby, negotiate, or sue) and effectively turning the Senate into an extension of the House of Representatives.

There are several areas impacted by the passage of the Seventeenth Amendment. I will review each of them in turn, but the affected areas as I see them are as follows:

• Nature of the Senate


• federalism


• Campaign finance

Nature of the Senate
Since the Senate derives its base of power and support from the People, the Senate is no longer "a salutary check on the government" (Federalist 62) because senators are not independent of the passions of the times or the direct influence of the public. A senatorial selection process driven by state legislatures in careful deliberation and cool contemplation has a better chance of producing a Senate of the brightest minds and most talented people from all segments of society than do yet another round of direct elections driven by the same old political process. Politics has an important place in our democratic republic, but so does competent thought, careful debate, and independent questioning of the prevailing opinion.

Witness,

• The Senate no longer considers the constitutional appropriateness of legislation, affecting the balance of power between Washington, D.C., and the states and arguably leading to a more active Supreme Court, which finds itself ruling on legislation that probably never should have been passed;


• Rather than the Senate serving as a judicious, independent and legislatively empowered investigative body, independent commissions (e.g., BRAC - the Base Closure and Realignment Commission), study groups (e.g., the Iraq Study Group or 9/11 Commission), and the recently-lapsed independent counsel law are needed when our government needs to transcend politics.

The Senate is effectively a mirror of the House, passing legislation based on its popularity and providing no thought that transcends the petty Talking Points of the day.


Federalism
Since the passage of the Seventeenth Amendment, the growth of the federal government has been exponential and all pretenses of a Congress with specific, enumerated powers as outlined in Article I, Section 8 of the Constitution have been thrown out the window. The "necessary and proper" clause is the constitutional limit of Congress's power, and the definition and scope of this clause are expanded with the needs of the country. There is no longer a structural component of the federal system that is in place to push back on the expansion of federal power and to represent and support the place of the States in the federal system.

A healthy federal system facilitates several things:

• local issues and concerns are managed and decided by local jurisdictions, leaving federal energy free to focus on more national concerns and priorities (witness the manner in which abortion has entangled presidential politics and judicial nominations);


• power is diffused and not concentrated;


• proving grounds for future national leaders among state and local governments;


• competition among the States, encouraging innovation and creative problem-solving;

Beyond the implementation of more parchment barriers in the form of Article I, Section 8 or continued reliance on the shifting sands of the Supreme Court, a structural mechanism to help define the shifting horizons of federal and state power would reinstate federalism as an active, primary part of the legislative process and renew appreciation for its importance to the American scheme of governance.

Campaign finance
The direct election of senators arguably removed the problem of bribery (at least from among the ranks of the state legislators), but now that senators campaign among a wider electorate, the costs of running senatorial campaigns have sky-rocketed. Among elected positions in America, Senate campaigns are second in expense only to presidential campaigns (which are beset with their own issues and problems).


The Explanation
Section One. The Seventeenth Article of Amendment to the Constitution of the United States is hereby repealed.
This section simply repeals the provisions of the Seventeenth Amendment and returns the senatorial selection process to the original constitutional prescription.

Section Two. The Senate of the United States shall be composed of two Senators from each State, selected by the legislature of each State. Each Senator shall serve a six-year term and may be re-appointed. Each Senator shall have one vote.
The language of this section echoes that of the original selection provisions in Article 1, Section 3. The only additional clause is a specific grant of power to the state legislatures of reappointment of a senator. This is designed to be coupled with the removal clause of the next section to make clear that a U.S. senator would serve at the pleasure of the state legislature that sent her. A senator's primary job in the U.S. Senate would be to represent the interests of her State, as a State.

Section Three. Senators are subject to removal by the State Legislature. Removal of a Senator requires a majority of each House of the State Legislature.
The provisions of this section are an addition to the language of the original constitutional scheme. Under this section, a state legislature would be able to remove a senator that it was dissatisfied with or just wanted to replace before the end of the senator's six-year term. As long as the majority of each state legislative chamber voted to recall the senator, the senator's removal would be final and not subject to repeal.

Section Four. Congress is precluded from enacting any legislation affecting the senatorial selection process. Each State Legislature shall enact rules and procedures, consistent with this section, related to the selection and removal of Senators.
In 1866 Congress responded to problems of state legislature bribery and deadlock by passing a law regulating the manner in which states selected their senators. The legislation required that each chamber of the state legislature meet separately and select a senator in open vote. If the houses of the legislature did not select the same nominee, the chambers were then to meet in joint session every day until a senator was selected by majority vote.

Ironically, the congressional act exasperated the very problems it was enacted to solve. Perhaps the requirement for a joint session frustrated the constitutional principle of checks and balances. Or perhaps requiring a majority vote rather than a plurality instantiated an impossible standard. Whatever the cause, the cases of deadlocked legislatures, accusations of bribery, and incidents of lost state representation in the Senate increased markedly after 1866. Congressional meddling toppled the system of senatorial selection that worked relatively well before the Civil War.

This section is included in this proposed amendment to avoid the temptation in Congress to fix every problem in American society through the passage of a new law. Even if state legislatures are deadlocked or beset with bribery and corruption, it is one of the things that should be left to the state legislatures to work out themselves. After all, it is the State itself that would suffer from a loss of senatorial representation, and it would be state legislators who broke bribery laws or committed corruption who would face jail time if proven guilty in a court of law. Let the political and judicial processes apply the pressure needed to move past these problems.

Section Five. This amendment shall not be so construed as to affect the term of any Senator chosen before it becomes valid as part of the Constitution.
This last section is in place to facilitate transition in the case that this amendment is ratified as part of the Constitution.

Other resources

• Democratizing the Constitution
  
• FindLaw Forum: Should the 17th Amendment be repealed?
  
• Repeal the 17th Amendment blog

Power grab

Slashdot is known for users who place a high regard for personal liberty. With that being said, I'm not normally a government conspiracy theory fan but this one is an example of how the Federal Government can increase their powers in small increments until one day, when it is seemly too late, we wonder how it happened that the Federal Government can override the will of a State. I would have been perfectly happy with the change to section 1076 if they had left it with wording that limits the authority to when the government of a State requests assistance. If they don't because they've been too disrupted, that is one thing, but the wording lets the President use Federal troops when the President deems the State to be unwilling to enforce a law. If a State elected official decides not to enforce some law, we already have a mechanism to force action. There is a recall, their is a lawsuit, there is an election. During the fight for Civil Rights, Federal troops were used to integrate schools. While from a social justice point of view this was the right thing to do, did that create a dangerous Constitutional precedent? Big Brother has to force one of its wayward children to straighten up and fly right.

Re: Federalism

In Craig's post Federalism. He discusses the historical support for how the founding fathers expected Federalism to prevent the despotic advance of government. I'd like to bring that discussion into the present, if I may. Many 'hot-button' issues of today seem to derive their longevity not to mention their vitality from the idea that if 'our side' doesn't win, we'll have to allow (or prohibit depending on which side you support) something we feel is 'wrong'. Gay-marriage and abortion are two such issues. If you are part of the majority that supports a particular issue, you might fear or at least resent a minority wanting to change the status-quo. Federalism is a double-edged sword. It allows those States who want to do something different to do so without encroaching on all other States. The downside to this is that a State you don't live in might allow something which you feel is morally wrong. Look at Nevada and gambling. If you are morally opposed to gambling than you may feel that it is your duty to prevent citizens of some other states from being allowed to legal sinful behavior.

In getting away from Federalism, we lose the tools that allow people to live in places that they feel they have a say in how it is run and deciding what behavior is acceptable. Tolerance as a political principle.

systems of education, the poor laws, or the road laws, of the states

While we are on the topic of federal involvement in this country's welfare and medical coverage programs, I thought I would highlight an what Justice Joseph Story says about the general welfare clause of the U.S. Constitution. This is the clause which the Roosevelt Administration and, subsequently, the Supreme Court used to uphold the constitutionality of the Social Security program. In Section 959 of his Commentaries on the Constitution, Story writes:

The power to regulate manufactures, not having been confided to congress, they have no more right to act upon it, than they have to interfere with the systems of education, the poor laws, or the road laws, of the states. Congress is empowered to lay taxes for revenue, it is true; but there is no power to encourage, protect, or meddle with manufactures.

Federalism

Article I of the Constitution establishes the Congress of the United States and vests it with “All legislative Powers herein granted.” The powers of Congress are then listed in Section 8 of the First Article, explicitly setting forth what is in the congressional jurisdiction. The Founding Fathers intentionally created a government that was neither completely national nor completely federal, but an ambiguous mixture of both. Far from wanting to weaken the states or abolish them completely, the aim of the Constitution was to establish an “energetic government” (to use the words of Alexander Hamilton in The Federalist Papers) which would relieve the states of the burdens of international issues while strengthening their ability to govern their internal growth and economic development.

It was also generally believed by the political science of the eighteenth century that republican government could thrive only in small jurisdictions. In his book Spirit of Laws in 1748, Montesquieu wrote, “It is natural for a republic to have only a small territory, otherwise it cannot long subsist.” In arguing against the Constitution in the Virginia ratifying convention in 1788, Patrick Henry argued, “One government cannot reign over so extensive a country as this is without absolute despotism… I call for an example of a great extend of country, governed by one government, or Congress, call it what you will.” (The Americans: The National Experience, Daniel Boorstin, Chapter 46) The Framers of the Constitution believed, therefore, that the states would have to play a vital role in securing a republican form of government for the American people. Thomas Jefferson wrote in an 1800 letter to Gideon Granger:

Our country is too large to have all its affairs directed by a single government....The true theory of our Constitution is surely the wisest and best, that the States are independent as to everything within themselves, and united as to everything respecting foreign nations. Let the General Government be reduced to foreign concerns only...and our General Government may be reduced to a very simple organization, and a very inexpensive one; a few plain duties to be performed by a few servants. (Letter to Gideon Granger, August 13, 1800, Thomas Jefferson, Works 4:331.)

So the Constitution was meant to establish a system of federalism in which the Congress legislated according to its delegated powers, and the states were left free to legislate in all other areas reserved for them. However, many were still nervous about potential federal encroachment onto the prerogatives of the states, and they attacked the “necessary and proper” and “general welfare” clauses of Section 8 of the Article 1 of the Constitution as overly broad. James Madison insisted in Federalist 41 of The Federalist Papers that an expansive reading of Section 8 was not only unlikely, it was unnatural:

...shall the more doubtful and indefinite terms (i.e. the terms “general welfare” and “necessary and proper”) be retained in their full extent, and the clear and precise expressions (i.e. the specific Art.1, Section 8 delineations of power) be denied any significance whatsoever? For what purpose could the enumeration of particular powers be inserted if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity...

To further calm the concerns of the original thirteen states, the First Congress passed the Tenth Amendment to solidify the constitutional principle that the powers of Congress are delegated powers and all others are reserved to the States:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The states, then, were to play a central role in the American scheme of government, not only because eighteenth century Americans were overly paranoid over the loss of states’ sovereignty, but because experience had shown them that dividing up the power of government into smaller units would protect their freedom and liberty. Again, Thomas Jefferson:

...The way to have good and safe government, is not to trust it all to one, but to divide it among the many, distributing to every one exactly the functions he is competent to. Let the national government be entrusted with the defense of the nation, and its foreign and federal relations; the State governments with the civil rights, laws, police, and administration of what concerns the State generally; the counties with the local concerns of the counties, and each ward direct the interests within itself. It is by dividing and subdividing these republics from the great national one down through all its subordinations, until it ends in the administration of every man’s farm by himself; by placing under every one what his own eye may superintend, that all will be done for the best. What has destroyed liberty and the rights of man in every government which has ever existed under the sun? The generalizing and concentrating all cares and powers into one body.... (Letter from Thomas Jefferson to Joseph C. Cabell, Feb. 2, 1816, Works 6:543, p.421.)

The Civil War and the nationalizing pressures of the late nineteenth and twentieth centuries have forced the balance of power between the federal government and the states to maintain flexibility. Ever practical, Americans have not tied ourselves to one vision of federalism. We have adjusted the federal system to order our affairs and protect our liberties to fit with the times. The federal government has grown beyond its originally-delegated powers to encompass areas such as management of economic policy, drug-usage enforcement, welfare, social security, and medical insurance. These had become national problems beyond the ability of any single state to cope and demanded the energy and resources of the national government. Nevertheless, the states have always been understood to govern the everyday affairs of their people: education, code enforcement, land use, contracts, maintenance of law and order, and general health and welfare laws. These are areas in which the Constitution has not delegated authority to the Congress, so the states retain responsibility.

Federalism, then, has evolved not as an ideological bulwark to protect some antiquated notion of states' rights. Rather modern-day federalism is an integral part of our governing structure. It helps to diffuse power and encourage competition among governments, experimenting with solutions to diverse problems and compromises to societal debates.