Federalism in the First Congress

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Federalism had long rested six feet under when democrats passed Obama’s notorious and deceptively named “Affordable Health Care Act” in March 2010.

The states’ reaction illustrated the tragic disconnect between them and their post-17th Amendment senators. By January of 2011, twenty-seven states challenged the constitutionality of Obamacare in federal court. Twenty-two senators from those states had voted for the law. In seven of the twenty-seven states, both senators voted for Obamacare!1

Having dispensed with representing state legislatures since 1913, these at-large politicians from geographic areas called states gather in an institution with little apparent purpose beyond reelection and accumulating wealth for its members. The modern senate is as useful to the continued life of our republic as an appendix is to the human body. Both are vestigial organs that long ago lost their original functions. Like an appendix, which can burst and kill its owner, a senate without institutional pride and purpose may, through neglect of its duties, one day endanger the continuance of our beloved republic.2

As opposed to our oh-so-enlightened modern times, the men of the first senate knew their place in our Constitutional order.

Imagine the thrill of attending the first congress on March 4th, 1789. There is a Constitution, but until the two houses gaveled to order, there was no government. This congress breathed life into words on paper; it took the generalities of the Constitution and translated them into functioning institutions. These men established the great executive departments of War, State, Justice, and Treasury. They set up a federal Judiciary and a system of taxation, as well as provisions to pay Revolutionary War debts. In quick order the first congress passed laws regarding naturalization, patents, copyrights, federal crimes, the administration of territories, and a seat of government.3

James Madison famously introduced what he thought was not only unnecessary, but possibly dangerous, a Bill of Rights. Recall from the federal convention of 1787 when George Mason motioned to insert a Bill of Rights, which went down to defeat by a unanimous 10-0 vote.4 In contrast to the famous English Bill of Rights which curtailed the time-out-of-mind prerogative powers of English Monarchs, the sovereign American people via their states allotted certain powers and no more to a government of their creation. Why, reasoned Alexander Hamilton, “provide exceptions to powers not granted?” Moreover, experience among the states proved bills of rights were ineffectual against overwhelming legislative majorities.5 Worst of all, the people and government in time may come to regard enumerated rights as final, as if there are no others worth protecting.

Nevertheless, and for the purely practical reason of disarming Anti-Federalists, congressman Madison sponsored nine amendments on June 8th. While the Constitution from a federal standpoint was overwhelmingly ratified, its popular majority at several state ratifying conventions was thin.6 The letters of transmittal from most states carried veiled threats; amend the Constitution to declare the great rights of man . . . or else.

After extensive wordsmithing, most of Madison’s proposals found their way into the Constitution. One which did not, sought to add an additional prohibition to Article I § 10 in the “no state shall” section:

No state shall violate the equal rights of conscience, or freedom of the press, or the trial by jury in criminal cases.

During the debate on this proposed amendment, representative Thomas Tudor Tucker, an anti-federalist from South Carolina, argued for its defeat, arguing that, “it goes to the alteration of the constitutions of particular states,” and that “it will be much better . . . to leave the state governments to themselves, and not to interfere with them more than we already do, and that is thought by many to be rather too much.” Nonetheless, the House of Representatives approved of the amendment, and passed it on to the senate on August 24th.

Fellow anti-federalist Senator William Grayson of Virginia wrote to Patrick Henry on September 7th that the amendment “disgusted the senate.” Even in matters that no one disputed, such as state-level respect for freedom of conscience, the press, and trial by jury, the senate understood it as an unnecessary and unwelcomed interference with the residual sovereignty of the states. 7

The Framers’ senate of the states stood ready to not only secure the interests of the states, the first senate showed institutional pride and loyalty to its employers when it struck down an amendment that did no direct harm to either the states or people, but merely embarrassed the states as if they were incompetent to secure essential natural and societal rights. This was a senate worthy of the compound American republic!

The clownish fixes by scotus to ‘save’ Obamacare are bold case studies in precisely why the Framers established a senate of the states.8 Like so much of what the national government does, little to none of it would pass our Framers’ senate. It is why the 17th Amendment must go; free government and the 17th Amendment cannot coexist.

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 Tradition. Join Convention of States.

1. The states that challenged Obamacare, yet had democrat senators who voted for the monstrosity.
2. The word is out, and the jig is up. The Deep State coup to eliminate candidate/President Trump is plain to see. Will our miserable post-17A senate stand athwart destruction of our Constitutional order?
3. Rossum, R. A. (2001). Federalism, the Supreme Court, and the 17th Amendment – The Irony of Constitutional Democracy. Lanham, MD: Lexington Books, 125, 126.
4. James Madison & our Bill of Rights.
5. Federalist #84.
6. Notably in the most populous state, Virginia: 89-79. Other close-calls: New York 30-27, and Rhode Island in 1790, 34-32. See the state ratification tally here.
7. Rossum, 129, 130.
8. Scotus recognized the Constitution doesn’t allow the government to force people to buy consumer products, and turned the “fees” and “penalties” into “taxes.” Unconstitutional Obamacare.