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Di Leo: Celebrating the Vision of America’s Framers

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The Constitution

By John F. Di Leo - 

Reflections on the Checks and Balances of America in honor of September 17, Constitution Day

When patriots gather, especially in the autumns of leap years, they sometimes drift into retrospection, and ask the question “Where did we go wrong?”

Not that any of us actually have a time machine, of course… we harbor no delusion that we could go back and fix the mistake if we could… but in the hope of learning for the future, we would like to know, for sure, if there was one point at which the nation turned away from the Founders’ plan for a nation of freedom and prosperity that could only be guaranteed by limited government.

Some make a case for the error being the election of a particularly destructive individual – Obama, Clinton, Carter, Nixon, Roosevelt, Wilson. Some make a case that an amendment or war was to blame – the income tax or World War One or even the Civil War.

And yes, a strong case can be made that some of those errors turned the nation severely for the worse.

But there is an answer that few consider, but it is indeed the mistake that set the nation on its long slow path to collapse, and it happened, like so many of America’s errors, in the second decade of the 20th century… in 1913.

Checks and Balances

The simplicity of the Articles of Confederation was one of its greatest rhetorical advantages, and also the source of its greatest weaknesses.  Every state was a member in good standing, and had an equal say in Congress.  No matter whether a state’s legislature sent two delegates or five or ten to Congress, the state voted its one vote and was counted equally, no matter whether it was as huge as Pennsylvania or as tiny as Rhode Island.

As a result, nothing could get done.  A single state could block any measure, and the national government had no police power to enforce its policies.  The government under the Articles, within just a couple of years of the peace with Great Britain that was won in 1783, was collapsing… the economy along with it.

So when the Framers got together in Philadelphia in the summer of 1787, to propose amendments to the Articles (or just to rip them up and start from scratch, as everyone knew was probably needed, but nobody said out loud), they faced many, many challenges, these in particular:

  • How to be fair in the new design? Giving each state absolutely equal weight was not fair, and had proven unworkable, but what would be fair?
  • What method would best provide for the nation’s long term defense and prosperity?
  • What method would be best for protecting the libertarian principles of the Revolution, especially considering the fact that any step to strengthen the government would appear to be an encroachment upon the freedom of the individual?

They ended the summer with a compromise system, in which the House of Representatives would be selected directly by the voters, in geographical districts mapped by the states and allotted by population… the Senate would be selected by the state legislatures, two per state, regardless of population… the President would be selected by electors selected by the states, in numbers comprised of the sum of each state’s Senators and House members… and the federal judiciary would be appointed by the President.

When we talk about checks and balances today, we compliment the Framers on their efforts to set the House against the Senate, the legislative against the judicial, the executive against the rest, and so forth… but we tend to minimize – or even, not consider at all! – the way that each one was meant to be selected.  American civics education has failed, in that most Americans no longer understand why each branch was to be selected in the exact way they were.

So in 1913, when America ratified the 17th Amendment, changing the six-year terms of US Senators from a body of people selected by the state legislatures to a body of politicians directly elected by the voters, most people did not realize the earth-shaking change they were making to the nation’s structure.  In fact, they rent the fabric from top to bottom, and America has never been the same.

Checks and Balances

We tend to think of the House and Senate as being two sides of the same coin – a bill gets introduced in one and has to pass both in order to be presented to the President for his signature or veto.  There are exceptions – revenue measures must originate in the House, for example – but for the most part, Americans think of the “checks and balances” being about that.

But here’s the history that America has forgotten:   the checks and balances in the federal government were never meant to be just between each respective branch, they were also meant to be a careful balancing between the rights and duties of America’s individuals, state governments, and national government.

How much power should the people reserve to themselves?  How much power should the states cede to the national capitol?  How much power can the national government be trusted to wield, before it becomes tyrannical?

This is the reason behind the Framers’ decision to have the state legislatures appoint the members of the US Senate.  They wanted the US Senate to be tethered to the then-thirteen, now-fifty state legislatures, so that each US Senator knew that he owed his job to his former colleagues back home.  No matter how slick a politician may be at winning votes from the people, there’s a limit to what you can get away with when your fellow politicians are watching.

Let’s take a moment now, to look at the Constitution with a fresh eye, and consider what the US Senate is empowered to do, in light of the fact that they are not directly elected, but are supposed to be the representatives of the state houses:

The Job of the US Senate

Let’s begin with the obvious: Senators can propose bills, or vote on bills that the House proposes.  In this, they represent their states, and look out for whether a proposal, perhaps from a state, group, or interest that rivals their own state, might be a dangerous thing that ought to be blocked… or whether somebody else’s proposal might in fact be an unconstitutional enlargement of the powers of the national government.  As the jealous guardians of both their states’ interests and of their constituents’ interests, the US Senators would oppose such encroachments on the liberty of their people and the role of their states.

But again, that’s obvious.  That’s what we learned in Civics class.  So let’s look at some of the other roles of the US Senate, and consider what they really mean:

“The Senate shall have the sole power to try all impeachments.”

The US Senate, representing their states, is the body entrusted with deciding whether an individual politician – a president, a federal judge, a cabinet member, etc.  – has behaved tyrannically  or otherwise embarrassed his nation or exceeded his authority.  The Framers intended the states to have this power, as the states’ representatives – not the ones directly elected by the voters – best know how to see through a corrupt politician. 

The state legislatures, it was assumed, would select their own elder statesmen, the ones who have seen it all and would see through anything, the ones who wouldn’t be hornswaggled by a corrupt politician or bureaucrat, like some businessman or media figure might who just won a statewide election through charisma, name recognition, wealth, or a partisan wave.

{The President} shall have power, by and with the advice and consent of the Senate, to make treaties, provided two-thirds of the Senators present concur.”

In other words, the President gets to appoint the ambassadors and run the negotiating process on any treaty – from trade negotiations like NAFTA and CAFTA to military alliances like NATO – but none of those agreements can actually go into effect unless a super-majority (66.6%) of the Senators agree with it.

In short, the state legislatures were meant to have a veto on all foreign policy matters, to rein in the federal government.  This veto was eliminate in 1913, when Senators became completely independent of their state legislatures.

{The President} shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law.

In other words, the President gets to appoint the entire executive branch, but the Senate can veto any of them.  The Senate was intended to have the ability to reject any nominee for any federal office, from postmaster to ambassador, from cabinet secretary to judge. 

Today, our Senators only get actively involved in judicial appointments… and they let virtually every other appointment slide.  The US Senate has approved Treasury Secretaries and IRS Commissioners who have displayed bigotry against whole swaths of the nation; it has approved Secretaries of Energy and Interior who have confiscated millions of acres of land from the states. 

Would such appointments have been allowed if US Senators still reported to their state legislatures?  Would Montana, Utah, or Nevada, for example, allow their representatives in Washington to rubber-stamp an appointee known to support such efforts?

17th Amendment Senators may only be interested in the issues that they think will resonate with their voters.  The Framers’ Senators – the pre-17th Amendment Senators – had to be conscious of every issue that would be noticed and appreciated by the state legislatures.

In short, the Senators were meant to be the adults in the room, the grown-ups who think long-term.  They were intended to be experienced politicians who know what the real motives are of the President and his appointees, and would stop them from grabbing rights, privileges, or land that’s properly controlled by their states or their people.

All that is gone, since we allowed Senators to just be six-year versions of House members.

The Framers, whose feelings on the judgment of large electorates was well-known, would never have allowed six-year terms for legislators elected by an entire state of half a million people.  Never.  Their entire plan to limit the size and scope of the federal government hinged on the nature of this special relationship between the Senators in the nation’s capitol and their superiors back home, in each state capitol building.

The Destruction in the Wake of the 17th Amendment

Those who have watched American governance in the century since passage of this amendment have seen the nation lose its tether to the Constitution.

It wasn’t an immediate shift, because the government didn’t change in a day.  We had career civil servants with decades left to serve, judges and justices with lifetime appointments, established politicians who had been selected under the old regime and could hold their seats in public election out of skill or name recognition.

But gradually, as the decades went on, the old role of the Senate as the defender of state interests was gradually diluted.  Conservatives still respect the separation of powers – not just from agency to agency and branch to branch, but also between federal, state, and local governments, and between government and individual.  But a century ago, it wasn’t just the conservatives.  A century ago, even moderates and liberals respected that difference; even people who supported liberal ideas wanted them done at the state level because they knew it wasn’t the role of the federal government to usurp such powers.

The federal government of the United States stayed small for over a century.  No matter what party ruled in Washington – Federalist, Whig, Republican or Democrat – outside of the natural upheaval that followed a civil war, the federal government stayed small… until the 17th Amendment.

Then all of a sudden, agencies started springing up – departments and civil servants, bureaus and bureaucrats – reproducing like rabbits to usurp the rightful authority of the states and the people.

The federal government today is the nation’s largest employer.  The Framers never intended that, never dreamed of it.  They worked so hard to put controls in place so it couldn’t happen.

The Framers wrote a Constitution to limit the size of the federal government. They added a Bill of Rights to further limit the scope of that government. 

And then, to be absolutely certain, knowing how jealous the states would be about the possibility of losing their own power (cf. George Clinton and Patrick Henry!), the Framers designed the Senate to be the state legislatures’ impenetrable wall around Washington.

Thanks to the design of the US Senate, no judge or justice, no ambassador or secretary, no bureaucrat could ever work for the federal government unless a super-majority of the states approved him.

Thanks to the design of the US Senate, no alliance, no war, no trade agreement or treaty could ever be effected unless a super-majority of the states supported it.

And thanks to the design of the US Senate, no crippling federal plan, such as wage and price controls, the EPA’s restrictions on oil and coal, or obamacare, could have be implemented, because the US Senate would be there, looking out for the states, saying This Shall Not Stand.

And this brilliant plan – this bulwark of protection that effectively stopped Washington DC from growing for 120 years – was utterly demolished in a day when the 17th Amendment removed from the state governments the unforgiving, inescapable cage they had always had around the nation’s capital.

We can’t put the genie back in the bottle – Senators will never return to be selected by state legislators again, and many states lost their respect for these lines too, so they’ve had a hundred years of outrageous growth as well.

But perhaps, at least, one step in the direction of responsibility in government might come from again remembering what the Framers’ plan was in the first place.

When you boil it all down to the basics, it comes down to this: our Framers believed in limited government, at every level.  Small federal, small state, small local… and they tried to design a system that would keep government small.

Our ancestors may have burst through that marvelous wall a century ago, but we can still return to small government another way.

We just have to nominate, and elect, people who believe, first and foremost, in small government.

If we pay attention, it really shouldn’t be all that hard, should it?

Copyright 2016 John F. Di Leo

John F. Di Leo is a Customs broker, international transportation lecturer, actor, and writer based in Chicagoland.  His columns are frequently found in Illinois Review.

Permission is hereby granted to forward freely, provided it is uncut and the IR URL and byline are included.

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