I am regularly taken aback by those who think our freedoms should depend on the character of those we elect to political office. If such men exist, then a simple assembly of these angels would do for a government. Grant a few hundred virtuous intellectuals the legislative, executive, and judicial power and be done with it. Why not? In fact, if such men exist, why not empower just one man with the three broad functions? To rely alone on the virtue of our rulers, Article V opponents guarantee a nation not of law, but of men and tyranny.
Those who believe our Constitution isn’t followed due to the character flaws of the people sent to Washington DC fail to understand the nature of the Framers’ Constitution. In pursuit of liberty, that circle of freedom outside the reach of others, our Framers accounted for the nature of man and designed a government to deal with it. The 17th Amendment blew up the Framers’ stable federal republic and left an unstable democratic republic in its stead.
Our early state governments relied on public virtue to secure individual rights. Among these democratic republics, Pennsylvania, Georgia, and Vermont were radical examples; they featured unicameral legislatures, annual elections, and weak executives. Per James Madison in The Federalist No. 10, states often disregarded minority rights, as well as “the permanent and aggregate interests of the community.” The ‘No State shall’ restrictions of Article I § 10 in our Constitution highlight the inadequacies and abuses by the first state governments.
The structure of early state constitutions inadequately secured rights guaranteed in the Declaration of Independence. Unlike today’s politicians, our framing generation soon realized that only an overhaul of the governing structures in both the states and the union of the states could save the Revolution.
First, government must encourage stability in the law. Only when citizens can go about their daily lives knowing their property is secure will they risk their time, effort, and capital in ambitious undertakings, undertakings which enrich themselves and the civil society. Consent of the governed alone only guarantees instability in politics and mutability in the law. A prescient Alexander Hamilton opened The Federalist No. 9 with a warning; establish a firm Union, or the petty American republics will, like the Greek city-states, alternate between tyranny and anarchy before they are “overwhelmed by the tempestuous waves of sedition and party rage.”
‘Sedition and party rage’ well-describes our current situation. The Democrat party is nothing if not seditious. Its members are eternally angry and work to overthrow the American Revolution. Thanks to democratic republicanism, enabled by the 17th Amendment, they are well along the way of reaching their goal.
Second, a strong and stable government must somehow control itself. The preferred method to thwart too-strong government was to render it powerless. Having just thrown off a tyrannical monarch, George III, our Founding generation naturally limited the powers of Congress under the Articles of Confederation. As James Madison reasoned in The Federalist No. 51, “In framing a government to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed, and in the next place, oblige it to control itself.” These two defects, of majoritarian abuse in the states, and a hapless, powerless Congress led thinking men to consider an overhaul of our governing systems.
Rather than, as Marxists and Social Justice Warriors do, assault Natural Law and man’s nature to forcibly create an artificial ‘New Man’, our Framers relied on man’s inclination to follow his own “sober second thoughts of self-interest as means of ensuring good government.” 1 Our natural selfishness is so powerful that its silly to expect traditional republican reliance on patriotism, character, conscience or religion alone to control it. The sole hope for enduring republican government was a new constitutional structure that accommodated the “ordinary depravity of mankind,” and made it in the interest, even of bad men, to act for the general welfare.” 2
The Framers’ Constitutional structures fairly well-directed and channeled self-interests through mutual checking so that the federal and state governments could control the governed, while at the same time control themselves. Their federal structure not only strengthened the government, it helped to avoid majoritarian tyranny through a powerful institution of states capable of checking the government and each other as well. 3
At the 1787 Philadelphia convention, delegates first designed the structure of the new Congress, THEN they assigned it certain enumerated powers. Not until the draft Constitution established the source and number of Senators per state did the Framers begin to outline the Senate’s authority and duties. The duties of the Senate were with the understanding that state legislatures appointed Senators. If any single institution may be credited with correcting the horrid structural problems of early state governments and the Articles of Confederation, it was the Framers’ Senate.
From The Federalist No. 23, the Framers recognized the need to grant every power without limitation necessary to solve the problems of the Articles of Confederation, those infirmities and weaknesses which threatened private rights and the dispensation of justice. Furthermore, they refused to shackle the new government with restrictions that they knew could not be observed. They knew “that every breach of the fundamental laws, though dictated by necessity, impairs that sacred reverence, which ought to be maintained in the breast of rulers toward the constitution of a country, and forms a precedent for other breaches, where the same pleas of necessity does not exist at all, or is less urgent and palpable.” They therefore gave the new government all the power it needed to deal with the various purposes for which it was established. 4
The Framers placed great faith in their new federalism. Because of it, they were willing to entrust their new federal structure with far more power than they would have otherwise granted. They were assured that the new structure had sufficient power to avoid the near-anarchy under the Articles of Confederation, and were confident the government would control itself. The Senate was the keystone to this necessary self-restraint, of a government capable of controlling itself.
While patriots today lament the widespread intentional ignorance of our founding and traditions, Abraham Lincoln similarly worried that the founding principles of our republic were fading from view. In an 1838 speech to the Springfield Illinois Young Men’s Lyceum, he warned of the profound consequences; those founding principles he proclaimed, “were a fortress of strength; but what invading foes could never do, the Silent Artillery of Time has done; the leveling of its walls. ” 5
The Silent Artillery of Time left its mark. Few Senators, newspapers or anyone else in the late 19th and early 20th centuries argued against popular election of Senators from the standpoint of the threat it posed to limited and stable government. So well-designed was the Framers’ structure, that America had forgotten the problematic nature of purely popular government which plagued and eventually destroyed overly democratic societies since the ancient Greek city-states.
I accept the accusation by early Progressives that the Senate was a club, a haughty elite club, of millionaires. So what? Unlike today, the pre-17A Senate served its Constitutional purposes. It cooled the wild democratic urges inherent in the House. It indirectly involved state legislatures in deliberation over statutes, presidential appointments, and treaties. It protected the states from federal government encroachment. It cemented the fact that as distinct members of a unique republic, whose government acts upon them, they had every right and obligation to a house of their own in Congress.
The Silent Artillery of Time bombardment continues. Over a hundred years since passage of the 17th Amendment, we have the benefit of our history, of lessons learned, which illuminates the unavoidable fate of excessively democratic republics. In time, all are certain to flameout in anarchy. Who will resurrect our first principles? We are the many; our oppressors are the few. Government is the playground of politicians, but the Constitution is ours. Be proactive. Restore the American free government tradition. Join Convention of States.
1. Rossum, R. A. (2001). Federalism, the Supreme Court, and the 17th Amendment – The Irony of Constitutional Democracy. Lanham, MD: Lexington Books. 70.
2. Ibid., 71.
3. Ibid., 78.
4. Ibid. 282.
5. Ibid. 281.