The Disasters of 1913
One hundred years ago big government liberals had a banner year. Woodrow Wilson, the father of modern liberalism, began his first term as President. The 16th Amendment creating the income tax became law in February. The method of electing Senators – purposefully specified in the US Constitution – was replaced by the 17th Amendment in May. And the Federal Reserve System became law in December. Disasters all.
Each of the disasters of 1913 is worthwhile blog fodder. But since the centennial of the 17th Amendment passed just a few months ago, that act of monumental madness can be examined with the perspective of a hundred years to understand how it helped create the greatest threat to individual liberty today – our massive federal government.
First, a bit of history.
Lest they might produce a Frankenstein monster, the 55 Founders who met in Philadelphia in the summer of 1787 to hammer out the details of a central government were as concerned about what they must not create as they were about what they should create. We have Madison’s notes to tell us what they fretted over and argued about in the Constitutional Convention, and we have the Federalist Papers which sought to sell the product of their labors to the farmers of New York and their state’s ratification convention.
Unlike the intellectual pygmies in Washington today, these 55 men were brilliant individuals. They were well-read in the strengths and weaknesses of governments back to ancient times. Most could read multiple languages, especially Greek and Latin texts, and many spoke several languages. They were prolific letter writers – which is our best evidence that all were thoughtful and analytical. Thus, they were the “best and brightest” that their states could send to the Convention.
What they produced was ingenious. Understanding the corruptible nature of man, they were able to fashion a governance structure that protected the rights of state governments from federal power – which was a big deal to them. They were able to almost equalize the representative influence of big and small states in national governance. Their system of checks and balances was intentionally complex forcing compromise, cooperation, and deliberation in order to get anything done. Their creation was a design that restricted the central government’s predictable lust for power. In Federalist 62 Madison explained that their arcane system would tamp down “the facility and excess of law-making [that] seem to be the diseases to which our governments are most liable.”
The legislative branch they conceived consisted of two separate and intrinsically different bodies – the House of Representatives and the Senate. The members of the House were elected for short two-year terms to make them responsive to their constituency, i.e. the citizens of their state who elected them biennially by direct vote. The House was apportioned by population because its purpose was to directly represent the people in their district – i.e. one person, one vote. Vacancies were filled by popular election – not by the state’s governor.
In contrast, the Senate was elected to long six-year terms arranged so that one-third is replaced every two years. The long terms were intended to make the Senate a deliberative body, unlike the raucous House whose short terms biased them toward government activity. Also, unlike the House, the Senate was not popularly elected; it was elected by their state legislatures, which made legislators their constituency. Beholden to legislatures for election, Senators “took their orders” from them rather than the people. Senators were thus intended to function as agents of their sovereign state congresses – in a sense “state ambassadors” to a federal congress. Senate vacancies were filled by the vote of legislators. If they were not in session, the governor could make a temporary appointment until the legislature resumed session and made a permanent replacement for the remaining senatorial term. Finally, unlike the House, the Senate was not apportioned by population. Each state had two regardless of size.
Because they had different constituencies, the Founders gave the House and Senate different duties that reflected their constituent interests. For example, only the Senate confirmed Supreme Court justices. As representatives of their state legislatures, it was presumed that Senators would approve justices who were sympathetic to state interests and state sovereignty.
The interests of the Senate and House were purposely not aligned. As Madison explained in Federalist 62: “No law or resolution can now be passed without the concurrence, first, of a majority of the people, and then, of a majority of the States.” Stated differently, Madison said that no law can pass except with a majority of the House, which represents the people, and a majority of the Senate, which represents the states via their legislatures.
Since the President is elected by state electors, whose number is equal to the sum of each state’s Senators and Representatives, each political component of government (House, Senate, Executive) is elected differently by different electors (the people, the state legislature, and the electoral college.) This reinforced the separation of power by which governance is checked and balanced.
The method for electing the President is more than symbolic. After a candidate receives a simple majority, additional votes count for nothing because the electors have been won and only electors can vote for President. Presently there are 100 Senators and 435 Representatives which equate to 535 electors. To win the presidency therefore requires 268 electors. This means a presidential candidate must win electors in a number of states – not a popular majority in a few states. In a mobile society the number of state electors will change, which means states can change “colors” and relative power among themselves. Does it surprise you that liberals want to abolish the electoral system – citing Gore’s majority of the 2000 popular vote but loss of the electoral vote?
Given the Founder’s design, states had more power to govern their citizens than the federal government. This was as it should be. When governance begins to interfere with individual liberty, it’s easier to push it back at the state level than at the national. State government is closer to the people and thus more accountable than national government could ever be. State government is better equipped to know and address its citizens’ needs. State legislators live among the people they serve. They are elected by their neighbors.
Since legislatures elected the Senate, they could put a brake on any expansion of federal power that interfered with state power by instructing their Senators to prevent it. The legislatures of the states have agendas that compete with the agenda of a national government and by controlling the Senate, states had not only a way to push back but also a strong voice in national government decisions.
When the Bill of Rights was in debate, Madison said,
T]he State Legislatures will jealously and closely watch the operations of this Government, and be able to resist with more effect every assumption of power, than any other power on earth can do; and the greatest opponents to a Federal Government admit the State Legislatures to be sure guardians of the people’s liberty.
And Jefferson, who championed state rights, wrote similarly in his Notes on Virginia:
An elective despotism was not the government we fought for, but one which should not only be founded on true free principles, but in which the powers of government should be so divided and balanced among general bodies of magistracy, as that no one could transcend their legal limits without being effectually checked and restrained by the others.
There is no way to misunderstand the balance the Founders intended between state and national government. They did not intend that states be regional administrative departments of the federal government as they have become. Nor did the Founders make the federal government an independent layer of government as it has become. The elegant structure they created integrated state and federal government – primarily through the Senate – and limited national governance so that it could never overpower the state. In fact in Federalist 45 Madison argued:
The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
As if to engrave the principle of federalism in granite, the 10th Amendment of the Bill of Rights says explicitly:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Well, this well-designed balance of power was defenestrated by the passage of the 17th Amendment. The election of Senators by their state’s legislators was replaced with popular election – a method that is no different than the House of Representatives. In fact, direct election of Senators is worse than House elections. House members are accountable to the citizens of their district – which today average about 650,000 citizens. Senators are elected at-large, meaning the constituency of each Senator is the population of the entire state – an average of over six million citizens per Senator. In California, it’s 38 million per Senator.
So, whatcha’ think? Did the 17th Amendment make the Senate more accountable to the citizens as its advocates a century ago claimed it would? I can almost hear the spirits of the Wilsonites in the afterlife telling the Founders how they “updated” their Constitution, and the Founders saying, “You did what!”
Thanks to these geniuses, we have the obscenities of ObamaCare, Dodd-Frank, an out-of-control judiciary, including the Supreme Court, and jaw-dropping deficits. Of course we also have the legislative atrocities of the past – Social Security, Medicare, Medicaid. Power has shifted from the states to Washington and from the Congress to the White House whose current resident is on the verge of ignoring the Congress altogether. Unelected federal agency appointees have more power than Congress, ruling the land through their byzantine regulations. At least half of the Supreme Court and probably more than half of the lower federal courts see the US Constitution as a marginally useful list of suggestions, not a governing document. Perverse interpretations of the Commerce Clause have been used to justify outrageous intrusions into our lives and to limit our constitutionally-mandated liberty. Government at both the state and federal level is a grotesque imitation of what the Founders created.
Would any of these miscarriages of government have happened if the Senate was answerable to state legislatures? I doubt it. As it was originally conceived, the Senate was the load-bearing wall for federalism – the ingenious political architecture for power-sharing between state and national government. With that gone, the states lost their place at the national table, and Jefferson’s prophetic warning in a letter to a friend came true:
When all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will … become as venal and oppressive as the government from which we separated.
Led by William Jennings Bryan, the proponents for overthrowing the constitutional method for electing Senators gave two justifications for direct election: corruption in which Senate seats were bought and sold between candidates and legislators and deadlocks among legislators which left Senate seats vacant for long periods.
There is no hard evidence that bribery in state houses was widespread. In 50 years only three cases had been investigated. Bribery exists with today’s method for direct election of Senators. We just happen to call it a campaign contribution.
Deadlocks did occur, and at least one Senate seat remained vacant for four years. But in the decades preceding 1913, keeping the US Senate in operation was not a high priority in busy state legislatures. Most of the deadlocks occurred in newly-admitted western states which had inexperienced legislatures and weak party discipline.
It defies logic to think that popular election of Senators, making them accountable to millions, was an improvement over the Founders’ design, which made them accountable to a hundred or so legislators. Instead of schlepping around to 48 state houses to influence Senate elections, lobbyists would be able to do one-stop influence peddling in Washington. Instead of indirectly influencing Senate business through state legislators, lobbyists would have direct influence after the 17th Amendment. Instead of ending the buying and selling of Senate seats between candidates and some legislators, corruption went underground where the buying and selling of influence was impossible to detect. The 17th Amendment was another failed attempt of government to reform itself.
Yet over two-thirds of the votes in the Senate (four abstentions) and House (110 abstentions) allowed the proposed amendment to be voted on by state legislatures. Constitutional amendments require two-thirds of the Congress and three-fourths of the state legislatures to approve. If the Senate abstentions had gone with the opposition, the proposed amendment would have passed anyway, but if the House abstentions had gone with the opposition, it would have failed. The Senate seemed to be more interested in changing the election method than the House, and no wonder. It has become predictably unaccountable to its electors.
Forty of the 48 states ratified the 17th Amendment. The states sowed the wind. Now they are reaping the whirlwind. It didn’t take long for the states to realize the mistake they had made. The issues that concerned their citizens – taxes, education, and welfare among them – slipped from their grasp and became mandates from Washington, often unfunded mandates. The federal judicial system, now totally insulated from the states, failed to defend the 10th Amendment states’ rights and indeed began to hand down rulings contemptuous of the rights of states and its citizens. Before the 17th Amendment the federal government remained small and influentially modest. Following the 17th Amendment, national government has grown in size, cost, and power, while state governments have slipped into political ignominy.
The “corrupt,” “unaccountable” Senate allegedly extant when the 17th Amendment was ratified was re-nominated and, to the man, went on to win back their seats in the first popular election of 1914. A hundred years later, we can only stand agog and wonder which of the purported special interests and corruptions were defeated by the 17th Amendment.
Periodically there are calls to repeal the 17th Amendment and restore the election of Senators to state legislatures. That has about as much chance of happening as congressional term limits. Senators and their fellow hogs at the trough know they’ve got it as good as it gets and they aren’t about to change.
Six more years would pass before another monument to the hubris of the “Progressive Era” would appear – the 18th Amendment prohibiting the production and sale of alcoholic beverages. It and the 16th Amendment became appropriate bookends to the Wilsonian age of arrogance.