Thoughts on federalism, the Civil War, and the Seventeenth Amendment

The following is an slightly-edited excerpt from a comment I made to a previous post. Maybe it'll stir up some discussion.

It's true that issues involving states' rights were among many which eventually led to secession and the Civil War. However, the end of the Civil War and the Union victory did not eliminate the role of the states under the Constitution. It is now over 140 years since the end of the War, and federalism remains an essential, if too-often-ignored, feature of American government.

A central assumption of American federalism is that the powers of the states were not granted by the federal government, nor by the Constitution; they are inherent in the states' existence as states; their recognition as such preceded both the ratification of the Articles of Confederation and the Constitution. That assumption is just as valid now as it was when the Constitution was ratified.

The states did not surrender their sovereignty following the Civil War. Neither side in that conflict would have ever agreed to such a radical departure from constitutional tradition. Furthermore, the states cannot surrender their rights, except by their consent. They did just that following the War by passing three constitutional amendments - the 13th, 14th, and 15th - which limited their own powers and strengthened those of the federal government. Although these three amendments served to alter the balance between the national government and the states, the principles of federalism are still very much embodied in the Constitution's text and structure.

Today, it's safe to say that the scope of the federal government's power extends further than most of the Constitution's framers would have ever intended. More importantly, I would argue that it extends further than the Constitution itself allows. To quote James Madison from Federalist #45:

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

How did we get to this point, where federal power so often extends to those "objects" that Madison said would be reserved to the states? One of the primary reasons is that the states no longer have any means to defend their interests as states in the federal government.

The Seventeenth Amendment, which provided for the direct popular election of U.S. Senators, was ratified in 1913. Prior to that time, Senators had been appointed by the state legislatures, guaranteeing states a direct role in the federal government and providing the necessary restraints against two of liberty's greatest foes: popular impulse and democratic excess.

With the ratification of the Seventeenth Amendment, the federal government was thrown out of balance; the states had deprived themselves of the Constitution's most important mechanism for defending their rights against potential usurpations by the federal government. Today, "we the people" control both houses of the national legislature, and the state governments have no effective means of protecting their interests. The most noticeable result of this overdose of democracy is a federal government that knows no limits. Are "the people" better off because of it? Are our liberties more secure now that the government in Washington is so much more responsive to our every need?

When the framers of the Constitution created the House of Representatives as the "popular branch" of government, elected every two years by the people, they did it with full knowledge of the failings of purely democratic forms of government. They understood that liberty is most secure when diverse, often-competing interests are balanced against each other. Thus, they wisely chose to create a bicameral legislature in which the popular branch - the House - would be counteracted by a second branch in which the sovereign interests of the states would find their voice. In abandoning the wisdom of the founders, we have uncovered our own folly.

So, if ever you want to know why the federal government spends over $2 trillion a year on so many things that have little, if any, basis in the powers of Congress as defined in Article I Section 8 of the Constitution...and why so many high-powered lobbyists call Washington, D.C. home...and why the states have come to resemble mere administrative arms of the federal government...don't blame Ronald Reagan, or George Bush, or Bill Clinton, or even FDR or LBJ. Blame those who proposed and ratified the Seventeenth Amendment.