I’d say "Lack of Knowledge" Posted by: Dale Franks
on Wednesday, September 06, 2006
A perfect example of the common lack of understanding of the original Federal system of government, is exhibited by commenter "Platypus" to McQ's original post. Platypus' comments require a detailed analysis. Let's take it bit by bit.
I can’t believe people would try to spin something as simple as adding up to two. Tim is correct; each state had two senators before, and two after. Governments and senators are both conduits for the wishes of constituents, and are accountable to those constituents every election cycle.
Senators had different constituents from Representatives, however, which is a vitally important consideration.
Senators were selected by the state legislature. Their constituents were the lawmakers of their state, and believe it or not, those lawmakers will, in fact, have priorities that are entirely different from those of the populace. "But, how," Platypus exclaims, "could this possibly be?!"
Let's construct a gedankenexperiment to explore this question.
Let us say that the House determines that it is vitally important, as part of our national energy policy, to ensure that Americans use bicycles rather than automobiles if at all possible. So, the House introduces the National Omnibus Bicycle Renewal And Interstate Nature Support Act, popularly known as the NOBRAINS Act. This act requires states to provide bicycles to every citizen of their state, in order to reduce driving and the associated use of fossil fuels.
In point of fact, this is something the Federal Government does all the time. It's called an "unfunded mandate", and states hate them, because they add burdens to the state budget, without providing any means to pay for the additional obligation.
If a Senator's constituency is the electorate as a whole, then a lot of people will think, "Hey, free bikes for the whole family? Cool!" They will then begin flooding the Senator's office with messages that say, essentially, "Give me my free bike!"
On the other hand, if the Senator's constituency is the state legislature, then a significant number of legislators in, say, Sacramento, will begin doing the math. In California, the math is as follows: A bike costs about one hundred bucks. There are 41 million Californians. The total cost of the NOBRAINS Act to California will be $4.1 billion. The total state budget's general fund expenditures are currently just south of $101 billion. State legislators, who are already having trouble finding that $101 billion, are not going to be happy to learn that they have a 4% increase to buy bicycles. As a result, they will call the Senator directly, in order to tell him, "Don't even think about voting for that stupid bike deal!"
This is just one of a number of ways in which state governments have concerns about the power and reach of the federal government. When the Senate was chosen by the state legislatures, state representatives had direct power over senators to prevent the federal government from using its power to force states to spend money, or change their criminal and civil laws. Now that Senators represent the people directly, the primary bulwark of the states' protection against federal government over-reach has been eliminated.
The only possible effect of putting the state government between the people and their senators is to dilute the will of those people.
That is precisely correct. Indeed, that was the whole point.
Maybe that’s better for "states’ rights" if the state is considered to be an entity separate from the people, but isn't that supposed to be a bad thing?
First, states are an entity separate from the people. States have institutional concerns in budgetary, criminal, and public policy matters that can diverge from the concerns of the people themselves. Again, the people may think a "free" bicycle is a neat idea. State legislatures, however, may not think paying for it is. Or even possible.
Moreover, federal acts are, by their very nature, a "one-size fits all" solution. But, one size may not fit all. It's one thing to live in Manhattan, where you can bike to work in a few minutes, and to live in Kief, ND, where the nearest grocery store is thirty miles away in Minot. A Solution that works fine in Connecticut may be unworkable in Nevada. States can craft local solutions in a way that the Feds cannot.
Aren't governments supposed to represent the people and not their own institutional selves?
It is if you assume that only the will of the people is a matter of concern. But, of course, the will of the people is not the only valid concern. If the will of the people was paramount, then 50%+1 of "the people" could take your life, liberty, or property at will. The will of the people can be just as tyrannical as any other form of government.
No, the primary concern of our republic is rightly the limitation of government to prevent the possibility of tyranny. The will of the people is always subordinate to the prevention of tyranny. To that end, the states entered into a compact. The federal government would guarantee to the citizenry a republican form of government in all the states (the will of the people), while the states would have representation in Congress to prevent the federal government itself from exercising a tyrannical level of power (the will of the states).
With direct election, states no longer have that power. The federal government is essentially unrestrained by anything other than principle.
There certainly seems to be an attitude about it being bad when the federal government holds itself separate from the people.
Perhaps. But the reason it seems bad when the Feds do that now is because of direct election. We now look to the Feds to be activist, rather than looking to our state legislatures. The Feds now consume the lion's share of our tax money, and we elect all of the representatives directly. As such, the Federal government, rather than the state government, became the perceived locus of democratic action.
Previously, the expectation was that the federal government was not only remote, but that it should be remote, taking care of things like talking to foreigners, or killing them when necessary, and touching lightly, if at all, on the life of the average citizen except during times of national crisis. A remote, inactive federal government was believed to be a positive good in our polity, since a limited federal government was unable to effectively become a tyrannical one.
Why is it any better when it’s a state government, unless "states’ rights" is just an excuse for stepping away from the constitution when it produces an outcome one doesn't like (as has historically been the case)?
In a truly federal system, of course, the state isn't remote, and doesn't hold itself separate from the people in the ordinary course of events. Instead, the state becomes the locus of democratic action, and the level of government that impacts most directly on the lives of the citizens. The state only asserts its parochial interests in terms of the state's relationship to the Federal government.
The founders were not concerned about the states for the states’ own institutional sakes.
Actually, they were concerned about precisely that. For the most part, the founders thought of themselves as Virginians or New Yorkers primarily, and Americans secondarily. Indeed, most Americans thought of themselves in those terms until the post-Civil War period. They understood the need for, and the importance of the union, without which, they supposed the states would become the prey of foreign powers, or succumb to intrastate disputes. But, the founders believed that states all had unique characteristics and concerns, and that those concerns should be protected, whether those threats came from the federal government or from other states.
They were concerned about the people of one state being ruled by the people of another when populations and lower-house representation shifted. To guard against that they added two extra legislators per state, and the tenth amendment.
And, why, precisely, would they be worried about that if the electorate is an undifferentiated mass? You cannot, at the same time, argue that the Founders thought of the states merely as administrative districts, and at the same time, were concerned about one district exercising control of another through representation in the national legislature. You only worry about such things if you assume that the states are, in fact, discrete political entities with their own parochial interests that must be protected.
It was because the founders perceived states to be discrete entities with a measure of sovereignty upon which the federal government should not intrude, that they created a bicameral legislature in which states, as entities, were specifically represented in one house, while the people were represented in another. It was a compromise forced on the Constitutional Convention precisely because the founders believed that the states, as states, had interests that required protection.
How those senators got there was a secondary concern, and as Steven points out there were good reasons for the change.
No, it was not. The Framers specifically rejected direct election of Senators at the Convention, because they felt that a directly elected Senate would be nothing more than a House writ large, and would be institutionally incapable of rejecting legislation from the House that would override sectional differences or state sovereignty. Since the direct election of senators, that is pretty much what has happened.
Overall, Platypus' opinions are clearly fallacious, which can be proved by reference to the Federalist Papers, and the reasoning that Madison and/or Hamilton (we're not quite sure) explained. For instance, Federalist #62 states:
In this spirit it may be remarked, that the equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty. So far the equality ought to be no less acceptable to the large than to the small States; since they are not less solicitous to guard, by every possible expedient, against an improper consolidation of the States into one simple republic.
Another advantage accruing from this ingredient in the constitution of the Senate is, the additional impediment it must prove against improper acts of legislation. 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.
A careful re-reading of Federalist #62 and #63 would provide Platypus with a firmer understanding of the Framers actual opinions regarding the Senate, rather than the ahistorical fantasy he currently espouses.
In short, two still equals two no matter how people try to twist it.
Two equals two is not the equation. The result set "2, 2" merely happens to be the product of two entirely different equations.
First off: excellent post, Dale. Everytime I begin to think my thoughts and impulses are more aligned with Bruce (amongst the three of you), you come along and be more "me" than Me. Of course, that should quite rightly make you shudder ;)
Secondly: I do have one question: while I am all in favor of repealing Amendment XVII, what of the fact that prior to this Amendment there were frequent vacancies and unresolved questions of succession with respect to Senators? It may not seem to be much of a problem, but historically it was enough of one to get Amendment XVII passed (among other reasons). Don’t those concerns need to be addressed? As one of the libertarianish folk, I don’t relish more Senators deciding my fate, but I certainly want at least two to battle the others (in my fantasy world) in curbing the infiltrations of the feds against the States.
I do have one question: while I am all in favor of repealing Amendment XVII, what of the fact that prior to this Amendment there were frequent vacancies and unresolved questions of succession with respect to Senators? It may not seem to be much of a problem, but historically it was enough of one to get Amendment XVII passed (among other reasons).
As part of the Amendment to repeal direct elections, the Amendment would specify that whenever a vacancy in the Senate arises for any reason, the governor of the state has the power to make appointments to the Senate, which would expire when the legislature chooses a replacement senator, or at the end of the senator’s term. If the legislature deadlocks, then the temporary commission keeps a Senator in being until the lej can get their act together.
This would put presure on the lej to act expeditiously. If the governor is a different party than a majority of the legislature, then the majority party has an incentive to get their guy into the Senate as fast as possible. If the governor’s party holds a majority, then obstruction by the opposition minority is pointless, since the governor has the power of appointment. If the lej deadlock continues over time, then a senator is still sitting in that seat.
but historically it was enough of one to get Amendment XVII passed
I think we also have to factor in the information distribution differences between the 1800’s and now. TV, Satellite, Radio, Internet. I’m sure 150 years ago, there were people who just didn’t know what was going on because they had no access to info. Not so now.
Regarding your NOBRAINS thought exercise: we reach a similar result when the tax system becomes extremely progressive. At some point there will be too few people with a financial stake in the government to put an effective brake on the taxing and spending of politicians.
Politicians usually argue that their pet programs will benefit society as a whole, but apparently they are not convinced that "society as a whole" will agree with them, because they when it comes time to fund their programs the politicians look to "the rich", or business, or smokers, or some other small segment of society to foot the bill.
meagain: I think we also have to factor in the information distribution differences between the 1800’s and now. TV, Satellite, Radio, Internet. I’m sure 150 years ago, there were people who just didn’t know what was going on because they had no access to info. Not so now.
Of course, new technology hasn’t made more people informed, it’s just removed their excuse not to be. I wonder how our election turnout compares to what we had back 150 years ago?