A Different Take on Federalism Part I

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Subtitle: The Insidious 17th Amendment.

The 17th Amendment did to federalism what the 13th Amendment did to slavery. Both are long-gone vestiges of our framing era. Tenth Amendment? States’ rights? Poof, and not only long-gone but neither slavery nor federalism can possibly return without repeal of their respective amendments.

Conservatives would do well to consider the 13th – 15th Amendments. Beginning with freeing slaves, then prohibiting state violations of privileges or immunities, securing due process, equal protection and entitling blacks to vote, the post-civil war amendments fundamentally altered society and the federal/state government relationship. Unlike the pre-civil war Constitution, the post-civil war amendments specifically charged congress, and not the judiciary by implication or otherwise, with enforcement. “Congress shall have the power to enforce this article by appropriate legislation,” (or equivalent wording) closes the 13th – 15th Amendments.1 And a federal congress did just that. Congresses enacted assorted legislation to secure the franchise for blacks and liberty for all.

Before Scotus got into the habit of amending the US Constitution, state constitutions, federal and state laws, it was the presence of the states in the senate that kept a lid on, and prevented abuse of, the 14th and 15th amendments. While the 14th Amendment nationalized citizenship and granted congress enormous enforcement power, so long as the senate that had to concur in the actual employment of that enormous power was elected by state legislatures, federalism and the interests of the states as states remained secure.

The framers’ expectations of self-government and federalism survived the horrors of civil war, but they fell with the self-inflicted wound of the 17th Amendment. Since then, in fits and starts, the scotus often attempted to fulfill what the framers had in mind for the senate: defense of federalism, that fuzzy line between national and state authority. The 17th rendered the senate congruent with the House of Reps and abandoned what the framers regarded as the primary constitutional means for protecting the federal/state balance and state interests.

As expected upon passage of the 17th, congress got cracking with progressive legislation that invaded previously secure areas of the states’ police power. The Federal Child Labor Act of 1916, Federal Child Labor Tax Act of 1919, Adamson Act of 1916 (wages and working hours on railroads) all heralded the crash of federalism and the 10th Amendment that extends to this day.

In response, a startled scotus stepped into the breach. It attempted to secure federalism, the borders of which not even our framers could define. Not only could they not precisely draw its boundaries, they saw no need, given the mode of electing the senate, to even attempt it. The senate, not the judiciary, was institutionally situated and capable of securing the 10th Amendment.

Soon, the scotus regarded its own analysis of the limits of national/state power as an appropriate and necessary substitute for the framers’ federal structure. Between 1913 and 1937, Scotus shot down more congressional statutes on federalism grounds than during the entire 1789 – 1913 period.2

In a 1937 showdown with an incredibly popular FDR, scotus relented and ended its opposition to the New Deal. Its on again, off again schizophrenia continues to this day. Depending on the political leanings of the judges, it sometimes defends or opposes intrusive 14th Amendment-based federal laws and regulations that would have been unacceptable to the old state-appointed senate. To further muddy separation of powers, scotus often substitutes itself for congress when its decisions have the effect of enacting laws. A scotus that recognizes no limits and often uses the 14th as the bottomless well from which to draw its justifications for reordering society as it sees fit, often attempts to replace a state-represented senate that kept the lid on 14th Amendment abuse.3

It developed the habit of setting policy, whether in healthcare, immigration, environment, food safety, you name it, a partisan Scotus often imitates the pre-17th congress. Scotus has no more business defending federalism than it does defending slavery. It is institutionally incapable of doing either and should butt out. Just as slavery is gone, so is the old federal Union.

The post-civil war and 17th Amendments respectively transformed society and the framers’ design, and scotus’ attempts to protect the states as federal entities stands athwart the 17th. Its efforts are ultimately counter-productive, because in its haphazard and occasional attempts to protect the people and states from the democracy they demand, scotus has soiled its reputation to point of becoming a laughingstock, a miserable and politicized excuse and shadow of a court that, in the 19th century, knew its place.

Just stop it. The US is not, and has not been a federal republic since 1913. Thanks to the 17th Amendment the US is a democratic republic, just as the people wanted. Scotus should let We the People live with it, stew in it. Perhaps it will take extreme pain to open enough eyes. If the people want democracy, they will, to paraphrase H.L. Menken, “get it good and hard,” and no panel of judges can ultimately stop them.4

1. Bring up the US Constitution online and do a CTRLF on “Congress shall.” Of the sixteen hits, the scotus respects congressional authority in all but three. They are the 1st and 14th-15th Amendments, and scotus has ruined each of them beyond recognition.
2. From 1789 to 1913, Scotus shot down seven congressional statutes on the grounds of federalism, and ten between 1913 and 1937.
3. Scotus justified its contraception, abortion, sodomy, homosexual marriage, and extensive rights for illegal aliens rulings in large part on the 14th Amendment.
4. See February 2020 Imprimus for more of what a democratized Congress and unlimited Scotus did to society via the 14th Amendment and the 1960s Civil/Voting Rights Laws.

Reference: Rossum, R. A. (2001). Federalism, the Supreme Court, and the 17th Amendment – The Irony of Constitutional Democracy. Lanham, MD: Lexington Books.