Saturday, May 23, 2009

The States as a Check on Federal Powers

http://www.freerepublic.com/focus/f-news/996315/posts

I argue in the book that the framers understood that federalism would be protected by the manner of electing (and, perhaps most importantly, re-electing) the Senate. However, the adoption and ratification of the Seventeenth Amendment, providing for direct election of the Senate,[iv] changed all that.
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On May 31, 1787, very early in the Constitutional Convention, the delegates rejected Resolution 5 of the Virginia Plan that proposed that the "second branch of the National Legislature ought to be elected by those of the first," doing so by a vote of seven states "no," three states "yes." Instead on June 7, they unanimously accepted a motion by John Dickinson and seconded by Roger Sherman providing for the appointment of the Senate by the state legislatures.

The delegates were apparently persuaded by Dickinson’s argument that the "sense of the States would be better collected through their Governments than immediately from the people at large" and by George Mason’s observation that election of the Senate by state legislatures would provide the states with "some means of defending themselves against encroachments of the National Government. In every other department, we have studiously endeavored to provide for its self-defense. Shall we leave the States alone unprovided with the means for this purpose? And what better means can we provide than giving them some share in, or rather making them a constituent part of, the Nat’l Establishment?"

On June 20, James Wilson, a passionate nationalist, warned his fellow delegates that "a jealousy would exist between the State Legislatures & the General Legislature." He observed "that the members of the former would have views & feelings very distinct in this respect from their constituents. A private Citizen of a State is indifferent whether power be exercised by the Genl. or State Legislatures, provided it be exercised most for his happiness." On the other hand, "[h]is representative has an interest in its being exercised by the body to which he belongs. He will therefore view the National Legisl. with the eye of a jealous rival." Wilson’s attack, however, utterly failed, not because the delegates disputed his analysis but because they approved the outcome. Since they were committed to preserving the states as political entities, they found persuasive Mason’s assertions that the states would need the "power of self-defense" [ix] and that "the only mode left of giving it to them was by allowing them to appoint the second branch of the National Legislature." Accordingly, on June 25, the Convention reaffirmed its previous decision to elect the Senate by state legislatures by a vote of nine states "yes," two states "no."[x]

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