Tuesday, November 17, 2015

The 17th Amendment and Federalism

Gerard N. Magliocca

In recent remarks at Princeton, Justice Scalia commented in a Q&A that federalism is dead and that the culprit was the Seventeenth Amendment, which ended the election of national Senators by state legislatures. While many conservatives hold this view and some have advocated the repeal of direct Senate elections, I think this is a false claim that rests on a misunderstanding of politics and history.

Try out a simple thought experiment. The California Legislature is controlled by Democrats, thus any Senator elected by them would be a Democrat. Does anybody think that this Democrat would be more interested in federalism than Diane Feinstein and Barbara Boxer are? I doubt it. Why is that?  Because Democrats in California share the views and interests of the national party for the most part.

The contrary view rests on what might be called the "Madisonian fallacy" that was addressed years ago in Pildes and Levinson's article on "Separation of Parties, not Powers." The article stated that Madison thought Congress and the President would check each other because people elected to those positions would come to identify themselves with those institutions. In reality, though, this is not what happens. The President and members of Congress care more about party unity or resisting the other party and use the weapons of the respective branches or parts of Congress to further that end.

Similarly, the Seventeenth Amendment story about federalism rests on the idea that state legislatures or the senators elected by them will identify primarily or largely with state governments. While this may happen every so often, most of the time these representatives would care more about national party goals, at least in the modern era of ideologically polarized parties.

Furthermore, the Seventeenth Amendment didn't actually do much to protect federalism. National power increased significantly from 1791 to 1913.  (In part, this was because in many states Senators ran the political machine that elected the state legislature, not the other way around.) Likewise, there is no indication that Senators thought differently about federalism once they were elected directly by the people, if you compare, say, 1920 versus 1910.

In the end, the Seventeenth Amendment explanation for increased national power reminds me of the conversation between two old actors.  One says, "The theater isn't what it was."  The other replies, "No.  And I'll tell you something else.  It never was what it was."



Yes, I think having state legislators (elected by people directly) choosing senators won't do much here. State-wide elections also still provide a means to have senators with some concern for their states as compared to specific districts or parties.

And like the Electoral College as applied today, what sort of independent value will it have in practice? Even in the days of Douglas and Lincoln, legislators were often elected pledged to someone. In time, more and more states had some means to provide a popular referendum that the legislature merely confirmed. In effect, would this be deemed unconstitutional since the legislature cannot in effect delegate the choice, even voluntarily?

I think you're just blowing off the reasoning here, which is that state level politicians have a strong incentive to protect state level powers, and if Senators are chosen by state level politicians, they will presumably share that incentive to some extent, or at least act as though they do in order to continue to be chosen.

Yes, national power increased significantly bfrom 1791 to 1913. It increased explosively afterwards.

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From the National Review link:

I asked [Justice Scalia] how the Constitution seeks to protect liberty and prevent tyranny. He rejected the idea that the main mechanism is the Bill of Rights. Rather, he opined, it is the structures that divide powers between the national goverment and the states, limit the powers of the national government to those delegated and enumerated, and separate powers in a system of checks and balances.

He lamented the unwillingness of Congress to guard its powers against encroachments by the executive and judicial branches.

He declared federalism to be dead–having been killed by the direct election of U.S. Senators, which deprived the states of their mechanism for resisting federal encroachments and usurpations.

The Constitution erected three firewalls between national government power and individual liberty.

1) Representative democracy covering local (House), geographical state (Senate) and national (President) interests. Because enacting law took the agreement of all three or a supermajority of the first two, we had a system of effective supermajority rule. The assumption was that the governing majority would not usually enact laws discriminating against themselves.

2) Checks, balances and enumerated powers. In case a governing elected majority was in the mood to restrict everyone's liberty or that of a minority, the national government was limited to enumerated powers and all other powers were granted to the states. The branches of the national government could effectively check one another, except there was no real check on the judiciary.

3) The Bill of Rights carved out areas of individual liberty which the national government could not infringe even within its limited powers.

Scalia is correct that the second wall was the most important to preserving liberty because it limited the power of the national government. However, I do not see the direct election of Senators weakening the second wall so much a strengthening the first wall.

A state government seeking to protect its powers against encroachment by the national government is not the same thing as defending individual liberty. A state government is just as likely as the national government to abuse its powers to abridge our liberties.

The real question, then, is whether a state government or the people themselves are more likely to choose a senator who will protect the people's liberties. I trust the people with that task.

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Based on the historical evidence, it seems that the strongest incentive of state level politicians was bribery.

I've always found it interesting that many of the same people who complain about 'elitists' running things and making decisions for 'the people' then say we should have career politicians choose our Senators for us.

The words "state level" in Mark Field's comment seem unnecessary. I agree with Gerard that the impact of the 17th amendment was probably much less than is commonly claimed. Rather than repealing the 17th amendment, a better (not to mention politically more palatable) idea for giving the state legislatures a measure of influence at the federal level would be to allow a state legislature to set a recall election for a US senator.

Re mls' comment on "state level" as being unnecessary, it should be pointed out that those words were used by mls' frequent compatriot in arms (Brett) to which Mark was responding. Perhaps in mls' view the use of those words by Brett were necessary.

The original provision for "election" of Senators was a means of federalism to preserve slavery pre-Reconstruction Amendments. (There were other provisions that also served slavery divined by the framers from the slave states in addition to the 3/5ths clause and the fugitive slave clause.)

By the Bybee [expletives deleted], is mls proposing an amendment here?

I agree with our own MRO's bottom line, of course I do. But this sort of a declaration against interest by our own MRO, who still believes (or does he?) that the late 19th century's The Gilded Age were America's best days. To a great extent The Gilded Age was accommodated by the then method of electing Senators. And our own MRO's bottom line can be more than a tad credited to progressives (whom our own MRO blames for what's wrong with America). So this is sort of a two-fer declaration against interest.

Of course the Senate, even with the 17th A, remains undemocratic - what Sandy has been saying. No, I'm not proposing an amendment. But come the second coming of a constitutional convention, ....

Holidays are coming -- Shag and Bart agreed on something.

"A state government is just as likely as the national government to abuse its powers to abridge our liberties."

Another disagreement with Madison, I guess ... with "Madison's Hand" (discussed here and at Concurring Opinions), guess he's due to be knocked down a level.

The latest C-SPAN Landmark case was the Steel Seizure Cases. Next week is Brown.

Joe, our own MRO exemplifies the broken clock rule.

Regarding "Madison's Hand," check out the Originalism Blog on Michael ("I'm not Rappaort") Ramsey's take and a follow up by Michael ("I'm not Ramsey") Rappaport commenting on recent posts at this Blog. And I wonder if "Madison's Hand" may lead legal scholars who have relied upon Madison's Notes in books and articles will check their publications to determine whether "alterations" by Madison over the years require updates/corrections. Or will they rely upon stare decisis?

Madison was a little short in more ways than one.


The text is the best proof of the intent of a law. Unless Madison is a source of the original meaning of some archaic word or phrase in the Constitution, his journal is of historic and not legal interest.

While Madison was short in stature, let's not sell his role in history short. Our host Jack Balkin has an excellent article on the role of history in constitutional interpretation/construction. Both originalists and non-originalists employ history, although too often in the law office manner, e.g., advocacy, not disciplined history. And the intent of a law via its text is often ephemeral. In determining original public meaning (the current fixation thesis of the New Originalism) both history and linguistics play roles. The New Originalism focuses on original public meaning of the Constitution, with a lesser role for intent, whether of the framers or ratifiers. But originalism continues to evolve. Those legal scholars who have cited Madison on original public meaning might be a tad concerned with their reliance on Madison's notes. Now, what does the Constitution - and originalists - say about national banks?


There is nothing new about so called New Originalism.

Anglo-American law has been applying the law as written for centuries.

The only time you engage in mining legislative or constitutional history is when the text had no common original meaning or, more commonly, offers internal contradictions. Even then, this exercise is fraught with legal peril because you often only have a handful of communications from a tiny minority of those who ratified or enacted the law.

Our own MRO's (Macro 'Rhoidless one):

"There is nothing new about so called New Originalism."

must come as a shock to New Originalists who attempted to resolve the criticisms of the older versions of originalism going back to the late 1970s, early '80s original intent originalism, with several subsequent versions before the New Originalism's interpretation/construction motifs.

As to our own MRO's:

"Anglo-American law has been applying the law as written for centuries."

much of that law was in the form of the common law, basically judge-made law, handed down in written decisions and modified over time by other judges in written decisions, as the times changed. What constituted Anglo-American law as written for centuries lacked a fixed base when commenced. There were many changes made by common law and legislative bodies. And in American since the Constitution was ratified there have been inconsistencies in the manner of its interpretation or construction. Since the late 1970s and early '80 originalism was "inspired" by conservatives as a reaction primarily to the Warren Court, perhaps triggered by the Warren Court's foundational Brown v. Bd. of Educ. decision that anguishes originalists to attempt to conform as within the arc of originalism, as if making pretzels.

It seems our own MRO thinks in simple terms regarding our complex Constitution, that despite Dr. Ben Carson's claim, was not written at the 8th grade level; if so, our own MRO might understand it.



I am noting basic hornbook law on textual interpretation. I know you are a couple decades into your dottage, but do you recall what you were taught on how to interpret statutes, contracts and contracts? Constitutions are no different, regardless of what politically motivated progressives and conservatives claim.


Apparently our own MRO (Macro 'Rhoidless One) has remained in the time warp of his law school days, whereas I continued to learn more about the law, even in my dottage. I recently finished reading - and understanding - Frederick Schauer's "Is Law a Technical Language?" a short 13 pages that is not focused on originalism or non-originalis. Rather, it goes back in time to Jeremy Bentham to more present times. A link is available at Larry Solum's Legal Theory Blog. Law school courses and hornbooks are just a start towards understanding the law. In practice, what seemed clear, like black letter law turns out to be opaque. Our own MRO apparently regresses, pining for the good old days. Life changes. The law changes. Legal scholars build on predecessor legal scholars. The history of SCOTUS decisions from the git-go suggest that our Constitution is different and has not been consistently interpreted/construed. And as Schauer's article points out there is an issue suggested in the title.

But I can understand our own MRO's comfort with his hornbooks that may be more than ample for a DUI legal specialist.


The law of textual interpretation has not changed in centuries, which means that we were taught the same rules.

1) You apply the text as written using the cannons of textual interpretation.

2) ONLY if the text is vague or there is a conflict in the text do you go outside the four corners of the document to bring in things like legislative history and parol evidence.

Unlike in England, our Constitution is a written document and not the accumulated product of common law, legislation and concessions wrung from tyrannical kings like the Magna Carta.

Like other texts, you enforce the Constitution as written.

Perhaps our own MRO (Macro 'Rhoidless One) can provide a cite or cites of hornbooks he is relying upon. Apparently the Court hasn't been following these hornbooks in constitutional law determinations on a consistent basis. And can someone cite a SCOTUS decision that considered the parol evidence rule in connection with a strictly constitutional issue?

And since it now conveniences our own MRO he abandons the "Anglo" form Anglo-American law.

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