The Corner

States Wronged

From a reader:

Dear Jonah:   The reason why Congress debated whether proposed legislation violated the U.S. Constitution in the 19th century is that U.S. Senators were elected by the state legislatures at that time.  The U.S. Senate was a check on the power of the federal government by giving the states as a group a collective veto over proposed federal action.  Any time a state governor or a powerful state legislator was unhappy about the federal government trampling on the prerogatives of a state, they could call their man in Washington and have him do something about this problem.  A U.S. Senator knew he had to keep the governor and majority leaders in his state legislature happy or he was out of office.  This meant keeping the federal government small and not going beyond the enumerated powers listed out in the U.S. Constitution.  Also, it meant being able to explain the constitutionality of proposed legislation to a small number of very sophisticated constituents back home at the various state capitals.   After the 17th Amendment was enacted, the states could no longer check the growth of the federal government.  Instead, U.S. Senators got elected in much the same way as U.S. representatives and the general voting public has little interest in process related questions such as whether proposed legislation tramples on the prerogatives of the states.  This coupled with the newly enacted federal income tax caused the federal government to grow enormously over the next generation.  It wasn’t long before the U.S. Supreme Court followed this expansion of the federal government’s role by interpreting the Commerce Clause of the U.S. Constitution so that it authorizes any action by the federal government that isn’t prohibited by a provision in the Bill of Rights.  Thus, notwithstanding the fact that we are told that the federal government is a limited government that can only act using one of its enumerated powers, the federal government is actually a government of general jurisdiction that can legislate on any subject.  The U.S. Senate no longer plays its historic roles of protecting federalism and the U.S. Constitution.   No one talks about how important the 17th Amendment is to the evolution of the federal government during the Twentieth Century but none of this stuff would have happened if the U.S. Senate was still answerable to the state legislatures.  The U.S. Supreme Court has been called into deciding many more issues because the U.S. Senate doesn’t interpret the Constitution any more and the federal government can legislate wherever it wants to.  Thanks.

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