But it appears I can access this "new post" page, so I'm just going to post my response to Rawjer's comment about repealing the the 17th Amendment here. My apologies.(though, as you can tell by the length of the post, I find it fascinating). Rawjer's post is in the post about "What I believe." (By the way, for you non-law students, and I guess even you law students, has the crap I've been talking about been unbearable to read, and you just sorta skip over it?)
And now back to my response to Super Jewboy:
Actually, I was referring to your use of the phrase "vox populi" which made it sound like you thought the 17th Amendment made things LESS populist, when in fact it makes things much MORE populist and nationalist, rather than federal. That was all I was saying...didn't you basically say something to the effect that the 17th Amendment makes gov't less responsive to the will of the people?
I think I'll begin with the argument about the "distinct advantage" in electing Senators differently, first by laying groundwork, and then making the point.
There's a dramatic difference from Madisonian conception of the system of checks and balances and the actual system which evolved. Madison viewed the separation of powers and checks and balances from an institutional standpoint, whereby the branches check each other through self-interest and pursuit of power and aggrandizement for their respective branches, that is, their interests lie in their institutional power. Thus, Congress has interest in Congressional power, and the Executive has interest in Executive power. The analogy or shift was from British mixed regime theory, whereby the King, the Lords, and the Commons, by the very nature of their composition of their constituencies, had inherent interests that checked each other. Lords have different interests than Kings, and Kings different interests from Commons etc, so each group naturally had its own interests that were embedded into English society, and thus served as a good framework for channeling self-interest.
America didn't have Lords and Commons and a King. They didn't have embedded societal interests that could be so fortuitously blended into a mixed regime. So Madison conceived of a system where the institutions themselves give rise to institutional interests which will check each other. It doesn't matter what your background is if you're the President...as your interest will be assumed to be in making the Presidency more powerful...which will cause you to check the Congress. This is not how things are today. This Madisonian approach, while still alive and actively debated today, was vastly cut back and diminished by the introduction of the Supremacy Clause and Judicial Review (which the debates show only 2 of 55 convention delegates rejected), which allowed the court to adjudicate the divisions of power between the branches, that is, relegated what Madison saw as a distinctly political power struggle, into a system guided by the rule of law administered by the Judiciary. Rule of Law, not political struggle. This is most clearly illustrated by the Convention's outright rejection(four times!) of Madison's attempt to institute a co-executive/judiciary mode of political judicial review, which was ultimately replaced by judiciary judicial review.
The point of all of that nonsense? Madison's system is not the one that survived. In fact, the system of Framer's intent is not the system that emerged and we cannot view our current situation solely through their eyes. The mutation? Political parties. The system we see has to be re-understood in light of the emergence of such an enormously significant political development, and not from a long-past perspective. The existence of political parties is not accounted for in the original system, and thus we have to view the Constitutional system in its evolution to accomodate political parties, not in its pre-political party condition. (I guarantee you're thinking of Madison's "faction" analysis from Federalist 10 and Federalist 51 as a discussion of political parties, but it is not. His analysis of factions is a retrospective look at the excesses of majoritarian democracy, not prospective views on political parties. (If you want, I can go into a much deeper discussion about what he means by faction.) Madison is referring to precisely the same problem Gerry is referring to in the quotation you noted about the people being led astray, that is, the excesses of democracy.) The Framers created a much better system than they had intended, not because they foresaw all of the problems, but because the system was able to adapt to massive shocks and revisions.
More relevant to your analysis is that Madison's (and yours) conception of bicameralism is not relevant in an era of political parties. Besides the fact that Madison's institutional view of political power struggle is far less applicable in reality than in theory, political parties kill the utility of an internal legislative check. In both houses, it is clear that it does not matter how they are elected, it matters more which party they are affiliated with. Thus, changing the composition of the electorate makes absolutely no difference in checks and balances. In the past 6 years, had the Senate been elected by states as a republican majority, the results would have been the same.
In addition, in regards to campaign finance, I believe that with the decline in campaign finance there would be an increase of corruption. I believe it is easier to corrupt 51% of 300 state legislators with promises, gifts, money, and favors than it is to corrupt an electorate of 30 million. If you are concerned about special interests infecting campaign finance, I believe special interests will have a much more direct route to office. More specifically, I think it would be quite easy for the most powerful and influential people in any state to have an easy ticket to DC. That is, the Senate would be even more aristocratic than it already is. To drive this point home, making the Senate more aristocratic, more elite, and more distant from the voting population was one of the specific rationales given for electing the Senate from state legislatures. The Framers WANTED an aristocratic Senate. Do we?
Also, I believe the Senate is by no means a clone of the House. The KEY aspect of bicameralism, unanimously agreed upon in the Convention, is a difference in the sizes of the house. Larger houses are more prone to demagoguery and the passions of the mob, while smaller houses are better for deliberation, but more open to corruption. These conclusions are relevant today, as the House is much much more lock-step and non-deliberative, while the Senate is more deliberative and manageable with 335 less people. But more importantly, both houses are dominated by backroom wheeling, dealing, negotiations, and party affiliations. NOT by actual deliberation. So why bother with repealing the 17th Amendment? What can be achieved in changing the composition of the two houses that cannot be accomplished by the fact that the HR is elected out of districts and the Senate by the whole state?
The utility of federalism is a wholly different issue that I don't think I'm going to tackle here. I do believe that there is great benefit and great necessity for federalism. But I also am acutely aware that federalism was the powder keg ignited by Lincoln's election which precipitated into the Civil War.
13 comments:
I read your response with much interest, although I take a bit of umbrage at your sentence “I guarantee you're thinking of Madison's "faction" analysis from Federalist 10 and Federalist 51 as a discussion of political parties, but it is not. His analysis of factions is a retrospective look at the excesses of majoritarian democracy, not prospective views on political parties.” Rest assured, I know my American History better than that, and am well aware that political parties did not even truly begin until midway through Washington’s first term at the earliest (although you could make an argument that the small states/big states divide in the Constitutional Convention was a foreshadowing of political parties, although political parties ended up developing along other lines). Indeed, they did not truly begin to coalesce until sometime in Adams’ first administration. Obviously, these events took place after Madison wrote Federalist #51, and therefore logically Madison could not have been discussing political parties, as I was aware. Therefore your guarantee was misplaced.
Now, onto the fun stuff. Perhaps an analysis of why the United States chose to establish a bicameral legislature is in order. The easy answer is so that the people are represented. But that’s why the House of Representatives exists, for the voice of the people to be rapidly expressed (i.e. every two years). Because the House of Representatives is composed based on each states’ population, that means that each person is represented, and a citizen in South Carolina is equally represented as is a citizen in California (I know I’m generalizing, gerrymandering plays a role etc…).
Since the role of the House of Representatives is to represent the will of the people, then what is the role of the Senate? Simply put, to represent the States. There are 2 Senators per state. Each state legislature was allowed to chose how it would elect its Senators. The concerns of the states themselves are represented in the upper house of Congress. The Senate is in turn responsible to a lower house, i.e. the state senate (I am aware I am modifying my own vox populi argument, but then this is what debate is about, refining ideas).
In turn this means Senators are focused on the issues of their own state, because the state legislature establishes who is in the Senate. The division of labor between the two parts of Congress is interesting. For instance, impeachment proceedings begin in the Senate where the States act, but the purse strings are controlled by the people, because all legislation that raises revenue must originate in the House of Representatives. The point here is that the Federal Government was to be responsive to the rights of the states. The system we have now is the exact opposite. I simply don’t understand why the accountability of the Federal Government to the States was done away with.
The Senate was designed to be the conduit, referring issues in both directions. It was supposed to protect states rights. To simplify, if you were a state legislator, would you vote for a Senator who is going to take away your power? Of course not. The Senate is supposed to be beholden to the voice of the states. By drawing power out of the center, a state appointed Senate would bring power closer to the people, because state legislators can more duly represent the people.
Although it isn’t exactly a popular point to make, perhaps the Southern States were right. Not about slavery obviously, but about Federalism. Had the system was working as designed, then secession would not have been necessary. The worry of the southern states what that federalism would succumb to an all powerful Executive. Indeed, the southern states were right. Lincoln repeatedly ignored the Judicial and Legislative branches. I admire Abraham Lincoln, but looking at him in a certain light, and he is a dictator (which raises another question, to what extent is ignoring Constitutional limitations allowable during time of war?). Now, what they probably should have done is to have waited to see what Lincoln did, before seceding. All I’m saying was that the Southern states, if they believed that Federalism was going to succumb to Lincoln, were right to at least raise a fuss, if not secede. Although certainly much more could be said on this topic, I propose we hold off on the debate about the origin of the War Between the States , and the rightness and wrongness of each side, for another time.
Also Interesting on a completely unrelated topic:
http://www.city-journal.org/html/17_1_free_speech.html
Actually, I added the word "guarantee" when I reread what I had written, and quickly threw it in, replacing something like "just in case." Umbrage unintended, merely pre-empting wasteful debate over useless crap.
I think your points about federalism are structurally sound and completely valid criticisms of the system. The only caveat is that it rests upon an assumption that states should have such a large role in the modern US, or that Ohio is so different from Indiana that it requires an independent body politic to represent its particular interests. If the American version of mixed regime theory is federalism, meaning that instead of the King, the Aristocracy and the Commons fighting for their individual interests, we have states fighting the federal government...I'm not sure if modern states are all that different from each other. Just between you and me, we have lived in Ohio, Michigan,South Carolina, North Carolina, Missouri, Massachussetts, New York, Arizona, and California. How are you then differentiating state populations from one another as distinct political bodies, when you think the Senate and the House are so similar? I feel like both reflect the same national character, neither seeking nor able to represent state character.
As for modern day federalism, isn't it safe to say that we have constitutionalized a rejection of federalism in passing the 17th Amendment? I mean, going through all of the state legislatures, and passing overwhelmingly in Congress, and amending the Constitution is an act tantamount to altering the social compact right? Thus, in explicitly changing the 17th Amendment, isn't that an outright rejection of federalism? I agree with you that there are definitely merits to federalism, and that there is a definite necessity for decentralization and fragmentation of power...and that in some circumstances we have gone too far in aggregating federal power, but I think it's beyond doubt that we have largely and explicitly rejected the vision of federalism upon which the Constitution was founded. If I understand you correctly then, you aren't arguing that we are behaving unfaithfully to the Constitution, you're arguing that we need to outright Change the Constitution again...right?
Finally, I do want to briefly view the larger question of whether federalism is a desirable system, and I will address it through the lens of the Commerce Clause, because you pointed out overreaching Commerce jurisprudence as problematic with your belief system. I'll keep it short.
Given the various purposes of a federal government, particularly the necessity of a Commerce Clause(ie. maintaining peace among states, preventing spillover effects from one state to another, regularity in our economy to promote stable foreign relations and trade etc etc etc.), what is your perspective on America 2006 and the extent of Commerce? Technology has changed, the world is shrinking, international and national travel and immigration has skyrocketed, and traditional barriers and institutions have given way to much more freely moving capital and people. What line would you draw for Commerce? Justice Thomas is out of his mind. (unless you think not, then we'll get into that.) It is undeniable that originalist interpretations of "commerce" are impossibly restrictive. If we want this government to work, what's the paradigm for gauging federal power?
Was that you J who posted that article? I think that's a HUGE problem with the left...the complete unawareness that openness and tolerance is itself an system of beliefs that can be oppressive and harmful. I hadn't realized there was an architect to that idea. I just thought it was the reaction of mindless, self-righteous dumbasses who just happened to fall on the left instead of the right. I think that article there points directly to why I try to dissociate myself from the left...(I will be honest and say I read only about half the article)
Man. It's like I hate EVERYBODY.
I posted the article.
SJ
For the moment, I’ll agree that we have constitutionalized a partial rejection of Federalism (the Tenth and Ninth remaining of course, leading to a bit of a contradiction). However, that does not mean that we have to keep this rejection of Federalism in our system. The Eighteenth Amendment was repealed, which had been passed with huge majorities in both the Congress and the states. So why not the Seventeenth (I will admit its highly unlikely, most people don’t even know what the Seventeenth is). In addition, Federalism as it stood before the Seventeenth Amendment was used to ratify the Seventeenth Amendment, why cannot the process as we have it now be used to reject the process as we have it now.
My difficulty with the Commerce Clause deals not in how it is written, and I agree completely with your statement “ie. maintaining peace among states, preventing spillover effects from one state to another, regularity in our economy to promote stable foreign relations and trade etc etc etc.” That is indeed the purpose of the Commerce Clause. When the Commerce Clause is used as tool to browbeat others to align to ideas outside its purpose (e.g. Daniel v. Paul), I think we’ve gotten a bit away with what the Commerce Clause is supposed to. As enacted up until the mid-1950’s, I think the Commerce Clause was being used in a valid way. Once it was used as an excuse to go around the activities of the states, I think that presents a problem (I know that it was used for striking anti-Civil Rights legislation and actions, but I think there must have been a better way, and I do not speak to the validity of anti-Civil Rights activities).
Unfortunately, I do not have the background on America 2006, or its Commerce policy to speak effectively or knowledgbly on that front. If you would like to provide some information, I’ll take a look at it and get back to you. Basically, I’ll speak to your question briefly then. The Commerce Clause can be expanded by the Congress. When it is expanded by judicial fiat, then we have an issue. The Courts exist to enforce and interpret the law, not create it.
…and Thomas is probably out of his mind. But I have a man crush on Roberts.
America 2006 was a vague reference to the fact that hyper-technology and intense globalization present much more profound questions of policy and control that cannot, be harness by an antiquated conception of Commerce derived from a period where the primary fear was a dissolution of union into 13 nation states, each having distinct economic, social, religious, and political interests unified by loose bands of convenience and necessity.
I am slightly at a loss about your Commerce and Congress comment though. Can't the court only expand commerce pursuant to a congressional statute? Are you saying that Congress has the right to expand the Commerce powers, and the Court must strike down Congress' right to do that? I don't know what you're saying.
I do think you may need to reconsider the importance of judicial "activism" though. Pre-17th amendment, and pre-incorporation, the state/federal boundary was defined by Congress, by the federal structure of the Senate and by the lack of incorporation. After we expressly rejected the structural federalism of a state elected Senate, there was no legitimate political structure to support federalism (which may very well have been the idea.) The result? The Court took up the mantle of Federalism: If Congress and the Constitution was not going to protect federalism, the Courts would (see Rehnquist).
Is this not judicial activism?
Finally, I would like to make some side comments about the 9th and 10th Amendments. Since the 9th is derived from Lockean natural rights theory, it basically has no role in modern society unless we reject the foundations of modern American law: Positivism and Legal Realism. It has no bearing on state's rights.
The 10th Amendment is precautionary, not an assertion of State's rights. The enormous debates surrounding the ratification of the bill of rights focused on the issue of whether an enumeration of RIGHTS automatically implies Federal POWERS not intended to be granted. For example, Congress was explicitly granted a few enumerated rights, which did not include, say, the right of establishing a church. A bill of rights then invoking a right to be free from establishment would make NO sense unless establishment were somehow within the Federal powers. Thus, a bill of rights was inherently dangerous because it could imply additional Constitutional powers.
Furthermore, on the flip side, explicit enumerations of some "natural rights" or "retained rights" in the bill of rights is dangerous because of the exclusio unius principle. Thus, there was enormous fear that leaving certain rights out of the bill of rights would be an abrogation of those rights. Thus, the 9th and 10th Amendments were meant to ensure that this was not the outcome.
Thus, when the Butler case says that the 10th is a truism, it is not expressing hostility to the 10th Amendment. It is merely acknowleding that the purpose of the 10th Amendment was not an affirmative grant of power in any way, but merely a statement of reassurance, of comfort.
Thus, relying on the 10th Amendment may not be as strong as it appears.
This is fun. Except comments about man-crushes.
Clearly I got drunk again and wrote that. I haven't reread it. But...let me know if it made sense.
To SJ:
I have to agree w/ adm here on the issue of repealing the 17th Amend. What real difference does it make if the people of the states elect its US senators or the people of the states elect its state senators who then elect the US senators. Isn't it basicly the same thing?
DA
Ha. DA, I think you just walked into a massive pile of controversy on that question. Nice job whitey.
stop hating everybody. unc lost.
j
p.s. note the signature on this post; j does not post links anonymously.
p.p.s. the 17th amendment? wtf?
I'm not hating on anyone, am I?
I only thought that you posted it because it was oriented towards invasions of civil liberties, and you're the only one that has posted links to other interesting sites in the past.
OK, super busy. Guy passing away at his desk not conducive having time to debate. Give me a few days and I'll be back with another hot button issue like the 17th Amend. But something for you to chew on for the moment: Is it ok to laugh when someone mentions Bork? I mean, Bork is a pretty funny name, and kinda dirty sounding.
SJ
P.S. D.A., I reserve the right to comment on your comment on my comment when I have time to comment
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