I found this on one of the bogus Coffee Party websites. Commenter mapszymanski is right on the money and I’d hate to see some leftist zealot delete his most excellent commentary. As such, here is the case for repealing the Seventeenth Amendment.
I will cite the following six Federalist Papers, all written by James Madison:
- The Federalist No. 39 (January 16, 1788) – Conformity of the Plan to Republican Principles
- The Federalist No. 51 (February 6, 1788) – The Structure of the Government Must Furnish the Proper Check and Balances Between the Different Departments
- The Federalist No. 52 (February 8, 1788) – The House of Representatives
- The Federalist No. 53 (February 9, 1788) – The House of Representatives (continued)
- The Federalist No. 62 (February 27, 1788) – The Senate
- The Federalist No. 63 (March 1, 1788) – The Senate (continued)
Many of you might not even realize what the Federalist Papers are. The above short papers, which I am citing, were written by the eventual 4th President of the United States, James Madison. James Madison was a leading delegate of the State of Virginia (Thomas Jefferson’s and George Washington’s State of birth) in the original Constitutional Convention in 1788. He published, in the “Independent Journal” and the “New York Packet,” many short writings which were intended to sum up the debates and decisions of the Convention, for all of the People to read and be aware of. All of the similar updates written and published by the other founders were also included in these “Federalist Papers.”
Regardless of how you feel about these papers, the fact is, that the above cited papers are simply reporting the arguments, and agreements, made by the Constitutional Convention of 1788, on precisely HOW the Republic was intended to be structured, and precisely WHY. Please let me know, specifically, which of the fundamental principles of HOW and WHY, discussed therein, and below, “don’t work,” are “outdated,” and only serve the purposes of the “rich white land owner,” in the specific context of the 17th Amendment debate. Please back up your argument with specific citations to the writings of our Founders, concerning the structure of the election of Senators.
The total number of single-spaced, printed, 8.5″ X 11″ pages, which all six of the above cited Federalist Papers required to print, was only 23 pages. I can read all 23 pages in about 35 minutes, which often is less than the time it takes for me to update my twitter and facebook everyday. I ask that you please take the time to read these papers (and ALL of the Federalist Papers) in full, after reading this response.
If you Google the exact text “the federalist #XXX” where ‘XXX’ is the number of the paper (leading zero omitted), the first link listed in the results will be to that specific Federalist Paper, at www.constitution.org.
I begin with The Federalist No. 39. This is the paper which James Madison wrote just after the Convention agreed to a republican form of government.
Now, before you type ‘republican’ into one of your various modern online dictionary websites and it tells you that ‘republican’ is a political party in America, ‘republican’ in this context refers to ‘having qualities of a republic.’
Type in the word ‘chuse,’ which appears throughout the Constitution, into your online dictionaries, and see what it says…
Words change over time… like ‘aristocracy,’ as you will see…
James Madison, in only four magnificently written pages in Federalist 39, sums up the specific structure of our pre-17th Amendment republic. He opens by saying:
“The first question that offers itself is, whether the general form and aspect of the government be strictly republican. It is evident that no other form would be reconcilable with the genius of the people of America; with the fundamental principles of the Revolution; or with that honorable determination which animates every votary of freedom, to rest all our political experiments on the capacity of mankind for self-government.”
“Mankind,” not “wealthy white land owners.”
James Madison goes on to explain the structure of the republic, as agreed to by the Convention of 1788, and specified in the Constitution:
“The House of Representatives, like that of one branch of at least of all the State Legislatures, is elected immediately by the great body of the people. The Senate, like the present Congress, and the Senate of Maryland, derives its appointment indirectly from the people.” Of course, The 17th Amendment changed this.
As far as the online derived definition of ‘aristocracy,’ cause your sphincter to reflexively tighten and your ‘rich are evil’ alarm-bells to go off, here is what James Madison had to say in Federalist 39:
“Could any further proof be required of the republican complexion of this system, the most decisive one might be found in its absolute prohibition of titles of nobility, both under the federal and the State governments; and in its express guarantee of the republican form to each of the latter.”
Madison then goes on, in Federalist 39, to address one of the main points of contention of the Convention. There was a strong delegation in the convention who argued that the republican form being agreed to was a “national” government, and not of the “federal” form, which regards the Union as a Confederacy of sovereign states. Madison clearly explains that the pre-17th Amendment Constitution was intentionally and specifically designed to be an intricate combination of both.
In specific relation to this topic of the 17th Amendment, James Madison said of the Congress:
“The House of Representatives will derive its powers from the people of America; and the people will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular State. So far the government is national, not federal. The Senate, on the other hand, will derive its powers from the States, as political and coequal societies; and these will be represented on the principle of equality in the Senate, as they now are in the existing Congress. So far the government is federal, not national.”
In other words, the House is the “national” government, and the Senate is the “federal” government. You see how definitions change over time? From this point forward in this thread, I shall refer to what is now called the “federal” government as the “national” government, since the “federal” aspect has now been eliminated for almost 100 years by the 17th Amendment…
Anyway, this balance of “federal” and “national” government is a CRITICAL BALANCE of the legislative branch, and is a theory which is as important to government as is Einstein’s theory of Special Relativity to Physics. I will address the “corruption” and the “experiment that didn’t work” argument at the end of my response…
I consider Federalist 51 to be the most critical writing on the importance of adhering to the structure of republican government, called out by our founders in the Constitutional Convention of 1788.
In this paper, we get not only the “meat and potatoes” of the “checks and balances” system, but also the explanation of the “fundamental human nature” about which all of our Founders knew so well, and guarded against, in the Constitution.
First off, I point out that in Federalist 51, James Madison points out the dangers of an un-checked legislative branch:
“In republican government, the legislative authority necessarily predominates. The remedy for this inconvieniency is to divide the legislature into different branches; and to render them, by different modes of election and different principles of action, as little connected with each other as the nature of their common functions and their common dependence on the society will admit.”
James Madison, in Federalist 51, goes on to point out that the Constitutional Convention of 1788 generally agreed to the following two principles:
“First. In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments [Legislative and Executive], and then the portion allotted to each subdivided among distinct and separate departments [House and Senate]. Hence a double security arises to the rights of the people…
[Rights of the minority]:
“Second. It is of great importance in a republic not only to guard the society against the oppression of its rulers, but to guard one part of the society against the injustice of the other part. Different interests necessarily exist in different classes of citizens. If a majority be united by a common interest, the rights of the minority will be insecure.
[How to avoid this "evil"]:
“There are but two methods of providing against this evil: the one by creating a will in the community independent of the majority — that is, of the society itself; the other, by comprehending in the society so many separate descriptions of citizens [diversity] as will render an unjust combination of a majority of the whole very improbable, if not impracticable.”
James Madison goes on to say about these two methods, in Federalist 51:
“The first method prevails in all governments possessing an heredity or self appointed authority ['aristocracy']. This, at best, is but a precarious security; because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minority party, and may possibly be turned against both parties.
“The second method will be exemplified in the federal republic of the United States. Whilst all authority in it will be derived from and dependent on the society, the society itself will be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.”
Wow! This sounds surprisingly like this “white, land owning aristocrat” [James Madison] is, quite unbelievably, in favor of preserving the rights of the minority through a republican form of government!…
The Federalist 52 goes on to describe the House of Representatives…
With the exception of the scourges of corruption, Federalist 52, discussing the House, is mostly still in tune today with what was originally intended to be…Please read it (3 pages).
The Federalist 53 is a continuation of a description of the House of Representatives. The most fundamental quote from this Federalist Paper, written by James Madison, author of the Constitution, concerning the 17th Amendment, is the following:
“The important distinction so well understood in America, between a Constitution established by the people and UNALTERABLE by the government, and a law established by the government and ALTERABLE by the government, seems to have been little understood and less observed in any other country. Wherever the supreme power of legislation has resided, has been supposed to reside also a full power to change the form of government.”
CHANGE the form of government…So, that seems to be where we are now, given the many words and actions of our previous, and current, Executive branch…
Anyways, this is unfortunately what we have today: “Supreme power of the legislation.” Since the 17th Amendment eliminated the voice and power of the sovereign States, the “legislation” [Senate and House] has full and now un-checked power of the legislation.
Now we get into the real “nitty-gritty” of my debate, namely Federalist 62 and 63, concerning the Senate…
In federalist 62, James Madison was very confident of the structure originally established in the Senate:
“…It is equally unnecessary to dilate [further debate] on the appointment of senators by the State legislatures…It is recommended by the double advantage of favoring a select appointment, and of giving to the State governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems.”
This above quote is very obviously in support of the pre-17th Amendment republican form of government, as was agreed to by our Founding delegates…
Let us now consider the following “ancient” quotes from James Madison, in Federalist 62, within the modern context of the pre-17th Amendment Senate. I contend that such a Senate could have possibly prevented the passing of the recent “Healthcare bill,” which was jammed through the mostly unwilling Congress, via Executive pressure and bribery, via earmarks (graft (corruption)), in the 2500+ page Healthcare bill, as the following quote illustrates:
“Another advantage accruing from this ingredient in the constitution [equal suffrage and appointment by State legislatures] of the Senate is, the additional impediment it must prove against improper acts of legislation. No law or resolution can now be passed without the concurrence, first, of the majority of the people, and then, of a majority of the States.”
Oops! A majority of the States is no longer required, post 17th Amendment, since the Senators are now fully and directly accountable to the easily influenced will of the masses, rather than partially and equally to the State legislatures. The fact is that these legislatures are much more aware of the immediate and direct burdens to their own State budgets that the nationally mandated legislation will cause, than are the masses. I know this because I have been in personal contact with my State representatives. They do not ignore me, unlike the members of the Congress. I have even talked directly to my State representatives on the phone.
James Madison, on behalf of the majority of delegates in the Constitutional Convention of 1788, further remarked on the importance of the pre-17th Amendment Senatorial construction of the government, in Federalist 62:
“I will barely remark, that as the improbability of sinister combinations will be in proportion to the dissimilarity in the genius of the two bodies [pre-17th Amendment House and Senate], it must be politic to distinguish them from each other by every circumstance which will consist with a due harmony in all proper measures, and with the genuine principles of republican government…
“The necessity of a senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions.”
Now that sounds eerily applicable to what it happening today, don’t you think?
I now skip forward significantly in James Madison’s Federalist 62, on the argument for the pre-17th amendment structure of the Senate, to further emphasize this pre-17th Amendment point:
“It will be of little avail to the people, that the laws are made by men of their own choice [directly elected], if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood” [the 2500+ page healthcare bill]
cherries, as far as your concerns for the poor, and for the minorities, consider James Madison’s argument in Federalist 62 against the Senate being directly elected (17th Amendment):
“Another effect of public instability [due to directly elected Senators, as debated in the full context of Federalist 62] is the unreasonable advantage it gives to the sagacious, the enterprising, and the moneyed few over the industrious and uninformed mass of the people. Every new regulation concerning commerce or revenue, or in any way affecting the value of the different species of property, presents a new harvest to those who watch the change, and can trace its consequences; a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow-citizens. This is a state of things in which it may be said with some truth that laws are made for the FEW, not for the MANY.”
Now for the closing of my argument, for the restoring the Senate to its original, pre-17th Amendment capacity…Federalist 63.
Federalist 63 talks mostly of the extreme dangers of having no “check” to the powers of a democracy, through the House of Repesentatives, without a pre-17th Amendment Senate. The masses are often easily swayed, and will often vote for ultimately devastating things. Consider the argument which James Madison makes for the pre-17th Amendment structure of the Senate, in Federalist 63:
“As the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers; so there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage ["'free' heathcare"], or misled by the artful misrepresentations of interested men [lobbyists and special interests], may call for measures which they themselves will afterwards be the most ready to lament and condemn…What bitter anguish would not the people of Athens [ancient DEMOCRACY, no senate] have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions?”
James Madison goes on, in Federalist 63, to talk of the historic disasters of the “republics” and “democracies” in world history that did not have the added security, or “check” of a pre-17th Amendment Senate:
“It adds no small weight to all these considerations, to recollect that history informs us of no long-lived republic which had not a senate.”
Madison goes on once again to portray the ideas of the Constitutional Convention of 1788, of the need for a Pre-17th Amendment structured Senate:
“…the people can never willfully betray their own interests; but they may possibly be betrayed by the representatives of the people; and the danger will be evidently greater where the whole legislative trust is lodged in the hands of one body of men, than where the concurrence of separate and dissimilar bodies is required in every public act.”
James Madison goes on to argue the qualities of a pre-17th Amendment Senate, in Federalist 63. Finally, he gets to the notion of possible future corruption:
“…the jealous adversary of the Contitution [such as the "trust-busters" Teddy Roosevelt or Woodrow Wilson] will probably content himself with the repeating, that a senate appointed not immediately by the people…must gradually acquire a dangerous pre-eminence in the government, and finally transform it into a tyrannical aristocracy.”
Madison answers this argument, much like my earlier “corruption is corruption and will always be” stance earlier stated in this thread:
“To this general answer, the general reply ought to be sufficient, that liberty may be endangered by the abuses of liberty, as well as by the abuses of power; that there are numerous instances of the former as well as of the latter; and that the former, rather than the latter, are apparently most to be apprehended by the United States.”
In other words, the abuses of liberty ought to be most apprehended by the United States than the abuses of power, in the specific context of the legislative branch of our national (“federal”) government. In other-other words, restrict the liberties of the legislative branch, through the pre-17th Amendment splitting of it, into two entirely different forms, one of which guarantees the sovereignty of the several States. If all of these checks to the Legislative branch are actually adhered to, it is hard to comprehend how it could become nullified. James Madison goes on to describe the unbelievable depth of corruption which would be required for such a corruption ‘revolution’:
“Before such a revolution can be affected, the Senate, it is to be observed, must in the first place corrupt itself; must next corrupt the State legislatures; must then corrupt the House of Representatives; and must finally corrupt the people at large. Without corrupting the State legislatures, it cannot prosecute the attempt, because the periodical change of members would otherwise regenerate the whole body. Without exerting the means of corruption with equal success on the House of Representatives, the opposition of that coequal branch of the government would inevitably defeat the attempt; and without corrupting the people themselves, a succession of new representatives would speedily restore all things to their pristine order. Is there any man who can seriously persuade himself that the proposed Senate can, by any possible means within the compass of human address, arrive at the object of a lawless ambition, through all these obstructions?”
Now, before you call Madison naive, consider carefully his question: would not the House of Representative be able to ultimately battle back against this ‘revolution’ of corruption in the Senate, via the bi-annual elections? No? Because of district Gerrymandering?
This is a valid point, I suppose, but Gerrymandering is easily fixed, WITHOUT a Constitutional amendment, as I have discussed in the topic on this site of a Congressional Term Limits Amendment.
Together with this Gerrymandering fix to a problem which was not yet prevalent in 1788 (see my future posts on the term limits topic), the House would definitely be able to battle back against the corruption.
However, regardless of Gerrymandering, the argument that the solution to this potential ‘revolution’ of corruption in the Senate would be to propose the 17th Amendment, is completely inane.
Instead, James Madison offers the following historical perspective, in Federalist 63:
“In Sparta, the Ephori, the annual representatives of the people, were found an over-match for the senate for life, continually gained on its authority and finally drew all power into their own hands [like the current post-17th Amendment Congress today]. The Tribunes of Rome, who were the representatives of the people, prevailed, it is well known, in almost every contest with the senate for life, and in the end gained the most complete triumph over it…It proves the irresistible force possessed by that branch of a free [liberty may be endangered by the abuses of liberty, in the context of the Congress, more so than the abuses of power] government, which has the people on its side. To these examples might be added that of Carthage, whose senate, according to the testimony of Polybius [I asked you to read him earlier in this thread], instead of drawing all power into its vortex, had, at the commencement of the second Punic War, lost almost the whole of its original portion.”
James Madison, in Federalist 63, offers the final analysis of how the republic should handle a possible future ‘revolution’ of corruption’ in the Senate:
“…we are warranted in believing, that if such a revolution should ever happen from causes which the foresight of man cannot guard against, the House of Representatives, with the people on their side, will at all times be able to bring back the Constitution to its primitive form and principles. Against the force of the immediate representatives of the people, nothing will be able to maintain even the constitutional authority of the Senate, but such a display of enlightened policy, and attachment to the public good, as will divide with that branch of the legislature the affections and support of the entire body of the people themselves.”
So, in other words, Madison and the delegates of the Constitutional Convention of 1788 actually contemplate and debate the very situation of a ‘revolution’ of corruption, which years later occurred (although, in my opinion, not to the very depths of corrupting all the way down to the people) in the early 20th Century, under the leadership of the new American Progressive movement (Teddy Roosevelt and Woodrow Wilson).
Although our Founders taught that the House of Representatives was the answer to solving this possible dilemma, our all-knowing Congress and President felt that the 17th Amendment was the answer…
In closing, I ask you this:
What if, in Federalist 63, back during the original Convention, James Madison and others had offered the following suggestion to this possible future ‘revolution’ of corruption in the Senate:
“If that happens, we would just use Article V to amend the Constitution to elect the Senators directly by the people, just like the House members are elected.”
I contend that the abnormally highly intellectual delegation of that time would literally laugh James Madison out of the convention. They would simply pose the following counter-argument:
“What if the House of Representatives succumbed to a ‘revolution’ of corruption? Would we simply amend the Constitution to make the House members elected by the State Legislatures, just like the Senators are?”
To think that this would solve the ‘revolution’ of corruption problem is obviously absurd. Yet somehow, we think that the exact opposite solution, the 17th Amendment, was perfectly acceptable for the Senate.
It should be abundantly clear by now, that the 17th Amendment simply closed the door on a critical “check” of power against the House, by making the House and Senate the exact same type of legislative bodies. Furthermore, and more importantly, the 17th Amendment permanently nullified the power of the several States in the U.S. Congress, which we obviously now need to have restored, to combat the out-of-control growth of the powers of the un-checked (“national” rather than federal”) Legislative branch, combined with 10 years of an over-reaching Executive branch, and a Judicial branch which has ignored the 10th Amendment for over 100 years…
If the third Wilson amendment, the 18th Amendment, taught us anything, it was that man cannot legislate or amend the Constitution to end corruption. In the case of the 18th amendment, it was the individual corruption of character which leads to alcoholism. Like the organized crime fueled by the 18th Amendment, as well as the growing Mexican drug cartels caused by Nixon’s “war on drugs” declared in the 70s, all it will do is force the corrupted behavior “underground,” and cost the working man more of his wages in taxes…
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