Federalism Denied

In last Wednesday's post, "Politics, Locally-Sourced," I urged readers to become more interested in and educated about their local and state governments.  A keystone of modern conservative political philosophy (and of the classical liberalism of the Framers) is decentralization, the idea that power should be spread broadly, both in terms of population and geography.  Due to the massive power the federal government accrued during and after the Second World War, decentralists also argue that power should devolve from the federal government back to the States.  The federal government, of course, plays an important role in maintaining the national defense, conducting foreign affairs, and regulating interstate commerce, among a number of other constitutionally delineated areas, but a great deal of power is reserved for the States in the X Amendment.

The X Amendment reads thus:  "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."  Clearly, then, where the Constitution is silent, the States are reserved broad powers.  They cannot become dictatorial--their constitutions must not conflict with the national supremacy of the US Constitution--but they can have broad latitude in determining statewide regulations, taxes, and the like.

In theory, at least, this federalist structure is how our nation is supposed to operate, and it manages to do so, despite significant hobbling from the federal government.  Congress has forced upon the States a number of unfunded federal mandates.  Essentially, a large portion of State budgets are consumed with fulfilling orders from Washington, D.C., without any form of assistance.  Additionally, States are often coerced into adopting certain policies or passing certain laws, lest the federal government withdraw their funding (this tactic was used to increase the drinking age from 18 to 21--not necessarily a bad thing, but the means matter almost as much as the ends; such coercion circumvents the proper amendment process).

What brought about this change, and how can we reverse it?  How can we restore the proper balance between the States and the federal government?

There are no easy answers here, and the centralization of power in the federal government occurred for a complicated host of reasons:  the acceptance of a desperate people of a greater role for the government in the economy during the Great Depression; the (temporary) success of a massively planned economy during the Second World War; the massive expansion of the welfare state during the Great Society; the (necessary) fight at the national level to protect the civil rights of black Americans; and more.

However, I would argue that a major source of this problem was the passage of the XVII Amendment.

The XVII Amendment replaced the old system of selecting senators with their direct election.  Prior to its passage, senators were selected by their state legislatures, which were themselves chosen in local elections.

There are a number of compelling arguments for why this amendment was adopted.  For one, many states had already moved to a de facto system of direct election, in which voters essentially "elected" their senator, and the state legislatures were duly pledged to vote in accord with the people's choice.  Also, there were several scandals in which senate candidates merely bribed state legislators for their votes.  Finally, many state legislators found that voters cared more about who the legislators would elect to the Senate, not what they thought about state problems.

You can review these arguments in a (rather condescending) piece from Slate by David Schleicher entitled "States' Wrongs."

"[T]he States no longer have a constitutional role in the federal government."

However, while there certainly appeared to be need for reform in senatorial elections, many of these problems still persist.  Voters are still overly-fixated on national politics, even more so than voters in the late nineteenth and early twentieth centuries.  If anything, state elections are even more focused on national issues than they were before.  Special interest groups still manage to exert influence over the Senate, and can do so even more effectively by whipping up voters.

Most importantly, though, is that the States no longer have a constitutional role in the federal government.  The Senate used to serve as the representative of the States' interests, while the House still operates as the representative of the people's interests.  Now the people have direct influence over both branches of Congress, and an important, necessary brake on the fickle will of the majority is gone.

States' rights has become an ugly phrase, associated as it is with slavery and segregation.  However, just because states' rights has been invoked to defend the indefensible doesn't mean that it isn't a good idea.  The States function as an important bulwark against tyranny, and federalism affords many opportunities for policy innovation and experimentation--Louis Brandeis's "laboratories of democracy."  Also, the geographical, ethnic, religious, and cultural diversity of the United States practically demands states' rights, as different States have different needs, goals, and desires.

Repeal of the XVII Amendment is extremely difficult and unlikely:  people like to vote (actually, people like to know they can vote, even if they often choose not to do so).  But Congress, specifically the Senate, can do much to keep the further expansion of federal power in check.  Senator Ben Sasse of Nebraska is spearheading this effort through his speeches, delivered from the Senate floor, about the proper role of the Senate and its obligation to be an august, contemplative chamber.

We, the people, can also take steps to become more involved in state politics.  Ultimately, the drive to restore federalism starts with us.

***

For more information about the XVII Amendment and different approaches to addressing it, here are some resources:

The Campaign to Restore Federalism (pro-repeal of the XVII Amendment):  http://www.restorefederalism.org/

"Repeal the 17th:  Problems to Address" by constitutional scholar Rob Natelson:  http://tenthamendmentcenter.com/2013/08/26/repeal-the-17th-problems-to-address/

"Repeal the 17th Amendment?" by Gene Healy of the Cato Institute (great piece that is sympathetic to the idea, but recognizes the political problems involved):  http://www.cato.org/publications/commentary/repeal-17th-amendment

"States' Wrongs" (mentioned above) by David Schleicher of Slate (anti-repeal, with some interesting historical background and a lot of elitist sneering at movement conservatives):  http://www.slate.com/articles/news_and_politics/jurisprudence/2014/02/conservatives_17th_amendment_repeal_effort_why_their_plan_will_backfire.html

What is Popular Sovereignty?

On Wednesday, 8 June 2016, I posted a piece entitled "American Values, American Nationalism."  In that piece, I discussed the "Five Core Values of America," a set of values inspired by a government textbook I used to use with my US Government students.  The second value, "popular sovereignty," is deals with the idea that power in our political system ultimately derives from the people--as Abraham Lincoln said in the Gettysburg Address, our government is "by, of, and for the people."

This post received quite a few comments on my Facebook page, including this one from a good friend of mine:

Now watch as I set my progressive-libertarian friend straight--respectfully.

My friend raised a very valid point:  the Framers of the Constitution were suspicious, if not outright terrified, of democracy.  Aristotle had identified democracy as one of the "bad" forms of government that came when rule by the people went bad.  The Framers had seen the consequences of a federal government that was too weak, namely the barely-contained chaos of Shays' Rebellion in 1785.  Naturally, they wanted a government by, of, and for the people--thus the requirement that the Constitution be ratified by 3/4ths of the States in special ratifying conventions (designed to circumvent the Anti-Federalist state legislatures)--but they recognized that unbridled populism would lead to demagoguery.  It's pedantic to say it, but Nazi Germany is the quintessential example of a desperate people granting dictatorial powers to a charismatic individual.

"Pure democracy, without any checks on the majority's power, quickly turns to one-man authoritarianism."

The French political philosopher Montesquieu argued that the English government succeeded because it balanced monarchy, aristocracy, and democracy effectively, which further influenced the belief of the Framers that government should filter the will of the people through a complex system of checks and balances, and a rigorous, jealously-guarded separation of powers.  Thus we have such institutions as the much-maligned (but quite brilliant) Electoral College, and a Senate that is designed to act as a break on the people's (often fickle) will.  Indeed, before it was corrupted by the XVII Amendment, the Senate was intended to represent the interests of the States themselves, rather than the will of the people, which is represented in the House of Representatives.

***

So, how did I address my friend's concerns?  Here is my reply (with some minor edits for clarity and brevity) to my friend's remarks, and to elaborate on the concept of "popular sovereignty":

You are correct in noting the skepticism with which the Framers viewed unbridled democracy. There was much wisdom in their skepticism, precisely out of concern that a well-positioned demagogue could, in the right circumstances, sway the fickle populous to his whims. Pure democracy, without any checks on the majority's power, quickly turns to one-man authoritarianism.

When I write about popular sovereignty, then, perhaps it would be more accurate to say that I mean "consent of the governed." The people consented through our constitutional order when they elected delegates to special state ratifying conventions (circumventing the generally Anti-Federalist-controlled state legislatures). The people, then, ultimately gave consent to that government, and continue to do so through regular elections. Of course, a complex system of checks and balances tempers the will of the people (voiced primarily through the House of Representatives, which controls the power of the purse), balancing with it the will of the States, and vesting a great deal of authority to halt dubious legislation in the hands of the executive.

As for Thomas Jefferson's love of revolutions and his proposal to rewrite the Constitution each generation, the actual Constitution provides a useful mechanism that makes such rewrites generally unnecessary, but possible: the amendment process. So far, every proposed amendment has come from the Congress, and all but two have been ratified in state legislatures (the other two were ratified, like the Constitution itself, in special state ratifying conventions). However, the Constitution provides another method--one that has yet to be used--to propose amendments: 2/3rds of the States can convene a constitutional convention to propose amendments. Texas's current governor, Greg Abbott, is currently working on just such a convention of the States. In short, the Constitution provides us a way to change it to fit current needs without throwing out the whole document.

Of course, I would argue strenuously for an originalist reading of the Constitution and its amendments, all of which should be read in the context of those who proposed them. This still allows for changes through the amendment process, and for congressional elaboration. The Constitution is not meant to cover ever eventuality, and gives a great deal of space to Congress and (this is important and often forgotten) the States.

"It approaches something like tyranny when the President has the power to write laws (indirectly through the bureaucracy he manages) and to enforce them."

As for your comments about technocrats, perhaps I should clarify here, too. What I am primarily concerned about is the ability of federal agencies to write their own rules, many of which have the force of law. This practice is dangerous because most of these federal agencies operate within the executive branch and have little congressional oversight. Law-making powers are meant to rest solely within the Congress, and the job of the President is to duly enforce those acts to the best of his ability. It approaches something like tyranny when the President has the power to write laws (indirectly through the bureaucracy he manages) and to enforce them. Even scarier is the prospect that the federal bureaucracy has become so large that the President cannot exercise effective control over it, or even know what it's doing! Many presidents--particularly our current one--have used bureaucratic rule-making to push unpopular measures without input from the people's representatives. Congress is complicit in this, as it has delegated these powers to the executive bureaucracy, and the Supreme Court has allowed it to do so.

That being said, you are absolutely correct that there is a need for an intelligent, qualified, and motivated civil service, and, naturally, we want our dams to stay sealed tight and our roads to be paved and efficient. I would never dream of proposing we elect, say, the head of the South Carolina Department of Transportation. Here, again, the Constitution provides precedent: at the national level, the President appoints his cabinet heads, as well as federal and Supreme Court judges and justices. The Senate, however, has the responsibility of confirming these nominations, helping to prevent egregiously bad appointments.

If these proper checks and balances are maintained--if the different branches stick to their constitutional duties and limits, and if the proper relationship exists between the federal government and the several States--even a reckless executive can only do so much damage. If Congress vigorously protects its legislative prerogatives, an unqualified or authoritarian-minded president may still do some harm, but his ability to do so will be greatly diminished, and the damage can be contained.

***

This conversation went back and forth for a few more posts, which I will possibly include in future pieces.  In the interest of space--as this rumination is already quite lengthy--I will refrain from sharing them now.

However, I would ask that you permit me one parting thought:  we should be on guard against the lionization of the presidency.  The Congress--which represents the people and is, therefore the seat of popular sovereignty--may be consistently unpopular, but it is the proper branch to resist the huge expansion of the presidency.  Presidents increasingly attempt to speak for the people, but in a country that is divided between two entrenched, fundamentally incompatible political philosophies, it is nearly impossible to do so.  Indeed, attempting to do so leads to a Rousseau-style attempt to impose "the common will" on people--whether they want it or not.

Instead, let's speak for ourselves.  We can do that through involvement in local politics, but also by communicating with our Congressmen and Senators.  Let them know that we expect Congress to reclaim its proper legislative powers from the executive bureaucracy.