Free Markets, Free People

Federalist 39


Ezra Klein’s rather silly defense of the 17th Amendment (updates)

Ezra Klein seems to be bragging somewhat about something that frankly makes him look foolish.  Apparently he appeared on C-SPAN with Heritage’s Brian Darling.  Darling made the point that the Senate, by design, was supposed to be a voice of the states.  Klein disputes that, I assume, because he apparently doesn’t know his history. 

Responding to a questioner, [Brian Darling] went so far as to say he’d consider repeal of the 17th amendment, which would mean that senators would again be elected by state legislatures rather than voters.

I’ve never understood this sort of thing, and said so in the panel. The Founders didn’t wisely orient the Senate around states. They pragmatically oriented the Senate around states. But now that we’ve been the United States of America for a while and none of the states seem likely to secede, the fact that California has 69 times more people than Wyoming but the same representation in the Senate is an offensive anachronism, at least to Californians.

Secession?  Where did that come from?

It is certainly true, given that remark, that he doesn’t understand  Darling’s argument. Here’s Klein’s argument at the link in the cite:

In Philadelphia in 1787, the smaller states favored the New Jersey Plan — one chamber with equal representation per state — while James Madison argued for two chambers, both apportioned by population, which would benefit his Virginia.

The delegates finally settled on the Connecticut Compromise, or the Great Compromise. Seats in the lower chamber would be apportioned by population (with some residents counting more than others, of course) while seats in the upper chamber would be awarded two per state.

The idea was to safeguard states’ rights at a time when the former colonies were still trying to get used to this new country of theirs. But the big/small divide was nothing like what we have today. Virginia, the biggest of the original 13 states, had 538,000 people in 1780, or 12 times as many people as the smallest state, Delaware.

That version, I assume, is one he’s cobbled together to support his view that it was all a  pragmatic compromise.  But, of course, it wasn’t.  It was instead, a very carefully designed system of government.  And he misrepresents Madison’s view on the subject completely. 

How do I know? Because I’ve read Madison’s writing on the subject in the Federalist papers.

The debate at the time, the concern I should say, was transitioning from the Articles of Confederation to government under the Constitution.  All knew it meant a more powerful government at a national level and all were quite wary of that. Remember, those writing the Constitution were state delegations.  THAT was the great concern of theirs given the oppressive yoke of imperial England they had just removed from their necks.  All, while they may have differed on the structure – and that’s where the arguments took place – wanted a a more FEDERAL government than a NATIONAL government.

After outlining what a republican form of government is, Madison notes the concerns of those who think the Constitution will make it a NATIONAL government vs a FEDERAL government by outlining the differences between the national and federal types.  Here’s Madison in Federalist 39:

"But it was not sufficient," say the adversaries of the proposed Constitution, "for the convention to adhere to the republican form. They ought, with equal care, to have preserved the FEDERAL form, which regards the Union as a CONFEDERACY of sovereign states; instead of which, they have framed a NATIONAL government, which regards the Union as a CONSOLIDATION of the States."

So there, in the hand of the man who drafted the Constitution, are the working definitions of the two terms as they understood them.  Note how the FEDERAL form is defined.  As you read through the rest of Federalist 39, you’ll find Madison discussing both the NATIONAL model and the FEDERAL model and pointing out some of both are necessary.  They had a purely FEDERAL form under the Articles of Confederation.  It didn’t work well.  They knew that had to put some national powers into the hands of the new government, but they feared such a type of government, so they wanted to limit the scope of that power.  He specifically addresses the Congress and how it was purposely designed to limit the power of a national government while importantly preserving some federalism:

The House of Representatives will derive its powers from the people of America; and the people will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular State. So far the government is NATIONAL, not FEDERAL. The Senate, on the other hand, will derive its powers from the States, as political and coequal societies; and these will be represented on the principle of equality in the Senate, as they now are in the existing Congress. So far the government is FEDERAL, not NATIONAL.

That one paragraph, in its simplicity, points out for those who will take the time to read and understand it – something Klein may wish to do – that the Constitution wasn’t some “pragmatic” compromise.  Klein seems unable to understand that the purpose of the Senate is to provide coequal political representation to the states.  That representation was to act as a brake on both the national government and the people (another “national” entity) who were represented in the House.  The equal representation of the states in the Senate was also meant to prevent the larger states from running roughshod over the smaller states, something which happens quite frequently in the House.  What Klein seems to want is another House in the Senate.  He seems totally unfamiliar with why the Senate was designed as it was.  Just read his thoughts on how he’d structure it and you’ll see what I mean.

Madison considered the final product to be a necessary mix, not a pragmatic compromise, of federal and national power conferred on the government in order to make it work properly but keep the national power in check.  The mix of both was designed to give the government the necessary powers it lacked under the Articles of Confederation while also, and this is critical to the success of that design, preserving the rights and power of the states.  

The proposed Constitution, therefore, is, in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national.

The 17th Amendment destroyed that design and balance. Look at the mess that has wrought.  Repealing the 17th Amendment would begin to walk the national government back to this mix of government designed by the founders.  Since the amendment’s passage, the government has shifted to a wholly national government and states have essentially lost their sovereignty and their rights.  We have paid the price and suffer the consequences.

There are certainly other contributors to that situation, but the 17th Amendment is one of the biggest contributors.  Klein needs to acquaint himself with the actual design of the Constitutional government built by the founders like James Madison.  There’s an entire book that will do that for him – “The Federalist Papers”.  If he’d read them, he might not look quite so foolish the next time he attempts to pontificate on what the founders thought.

UPDATE: Great minds think alike, I suppose – Brian Darling’s rebuttal (replete with Federalist 39 reference).

UPDATE II: James Joyner and Steven Taylor join the fray. I’d only say to Dr. Taylor’s assertion that Madison’s writings in Fed.39 were a "post-hoc rationalization", that they could just as easily represent a "post-hoc realization" that they had in fact designed a very good model for government and thus the "eloquent" argument. Personally I’ve never been able to argue eloquently for anything in which I didn’t believe in passionately.

~McQ

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