July 11th, 2009

State Sovereignty and the Senate

photo credit: vgm8383

1913 was a bad year for liberty. In this one year alone, future generations of Americans were enslaved to the evils of central banking through the creation of the Federal Reserve; government claimed ownership of roughly one third of each American’s life through the income tax; and the Founders’ system of federalism was dismantled through the passage of the seventeenth amendment to the Constitution.

The latter is often overlooked by advocates of liberty, since the effects of the existence of the Fed and the income tax are keenly and constantly felt. However, we must not overlook the loss of state sovereignty that took place with the seventeenth amendment, nor its importance in our current political system. Since 1913, the "checks and balances" we teach our youth about were hollowed out by removing the states’ voices from the federal government.

Previous to this amendment, the two senators from each state were elected by the state legislatures. In this way, the senators were beholden to the will of state governments, rather than the people of that state directly. This republican method of representation is key to restraining pure democracy and the ebbing flow of popular passions that go with it. Through their senators, the states could make their voices heard in the federal government; the states had standing and representation to convey their will and restrain the federal government. This model of governance allowed for the tenth amendment to more easily be upheld, since the states had a direct conduit through which to object to the encroachments of the federal behemoth. As James Madison said, “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.”

During the debates in the several state conventions on the adoption of the Constitution, Fisher Ames of Massachusetts gave the following warning about changing this federal system implemented by the Founders:

The state governments are essential parts of the system..The senators represent the sovereignty of the states; they are in the quality of ambassadors of the states.. [But suppose] that they [were] to be chosen by the people at large..Whom, in that case, would they represent? Not the legislatures of the states, but the people. This would totally obliterate the federal features of the Constitution. What would become of the state governments, and on whom would devolve the duty of defending them against the encroachments of the federal government?

Now that this system has been altered to instead create a national government (since the federalist component—that of state representation—was removed), Congress naturally lost any connection to the sovereign interests of the states. These issues, found in their purest form in the several state legislatures, have now been relegated to powerless resolutions expressing each state’s will, but lacking any method of demanding their voices be heard.

The degenerated, democratic alternative we have today involves the direct election of senators, and thus subjects them to the passions of the people rather than the will of the states. Any organized attempt at reasserting state sovereignty and restraining the federal government requires that the seventeenth amendment be repealed, so that the states can once again be represented, and have an official channel through which to support or object to federal policy.

17 Responses to “State Sovereignty and the Senate”

  1. loquaciousmomma
    July 12, 2009 at 9:11 am #

    I totally agree, Connor! As I was reading this it reminded me of this article.

    The suit alleges that the law violates the 10th Amendment to the Constitution, which reserves to the states all powers except those granted to the federal government. It also alleges that the law violates Article 1, Section 8 of the Constitution, which limits the power of Congress to attach conditions to the receipt of federal funds.

    What I find interesting, is that no matter what happens in this case, we lose something. For example, if the Supreme Court chooses to uphold the state’s right to define marriage as it sees fit, DOMA is dead. If, on the other hand, the court upholds the DOMA, it will be another blow to state’s rights, effectively giving the federal government the power to define marriage for the states. This could open the door for the congress to pass a bill ordering all states to allow same-sex marriage. In effect, it would void all of the work that has been done in the states that have passed constitutional amendments banning gay marriage.

    I must admit, Attorney General Coakley is pretty clever. What an ingenious move.

    My question is, what would be the best counter move?

  2. Carborendum
    July 12, 2009 at 9:55 am #


    I think it would be an incomplete argument if we did not include the issue of representation in the house.

    At least the 16th & 17th amendments permit the changes. But nothing changed the Constitutional representation of the House. They just up and decided it was time — for practicality.

    It was a one-two punch. It made the House out-of-touch with the masses. And it made the Senate non-responsive to the states. So we have a Congress that doesn’t answer to anyone. Then a President that answers only to Congress. And we have a Supreme Court that answers to no one.

    I’ve been wondering what the solution is. Here is the problem with “fixing” things.

    1) If we try to fix things too quickly, the nation will fall apart. We have grown too dependent on government. I dare say even the most independent/libertarians among us (there are some exceptions like the seed guy).

    2) If we slowly try to fix things, generations will pass and we will forget what we were trying to do to fix them.

    3) The obvious solution APPEARS to be revolution. But this is always a wild card. Better to suffer those ills we have, than to fly to others we know not of.

    So the only solution is a revolution led by a group that are widely accepted as a freedom & peace loving, moral & honest people. Hmmm. But WHO? WHO? Hmmm.

    Which leads me to:


    I both agree and disagree with the catch 22 that Coakley presents.

    ON THE ONE HAND: DOMA only restricts one states right to enforce its will on another state. This is perfectly Constitutional and does not take anything away from a State’s right to legislate within its own jurisdiction.

    ON THE OTHER HAND: If we consider what happened with Roe v. Wade (which wasn’t really as bad as pro-lifers make it out to be) then we must consider what such a current ruling would do to lesser courts’ and future Supreme Courts’ ability to interpret this ruling into rulings currently unintended.

    If this happens. I believe this to be the seminal issue that will ignite the move by the states toward secession/revolution. Other issues such as gun ownership, abortion, family rights, etc. are the fuel waiting for the spark.

    You’ve witnessed the infighting that conservatives and even libertarians (and other third parties) exhibit. Secession will be likely to provoke anarchy. Where will the order come from?

    There is only ONE group that makes so much effort towards organization, society-building skills, self-sufficiency, and morality.

    I believe Katrina was a dry run to see where we can improve in our ability to help where disaster hits–Disasters like, oh, idunno . . . CIVIL WAR?

    I might have to change my handle to LoquaciousCarb. 🙂

  3. Greg
    July 12, 2009 at 12:04 pm #

    The Case Against the Fed is as timely today as when it was first written. Great post. Most are unaware of how our governmental system has been modified and the impact those changes have on our system of government.

  4. Brent Bullock
    July 12, 2009 at 12:24 pm #

    Great article Conner. Keep up the good work, and hopefully America’s fire for Liberty will be rekindled.

  5. Jesse Harris
    July 12, 2009 at 12:35 pm #

    The most galling part is that so many states agreed to be cut out of the picture. Just as Congress abdicates authority to the executive to avoid responsibility, so too did states give up their voice in the federal government to avoid being blamed for anything going wrong.

  6. JHP
    July 13, 2009 at 1:22 pm #

    The degenerated, democratic alternative we have today involves the direct election of senators, and thus subjects them to the passions of the people rather than the will of the states.

    I think I agree with you Connor, but one question I have is this: what is the difference between the “passions of the people” and the “will of the states”? Is not a state legislature elected by the people and a senator elected by the people and the decisions they make a manifestation of the passions of the people?

    What changes when a senator is elected by the legislature versus by the people directly if the legislature is elected by the people? I guess it removes one level of accountability between the two, but I’m not completing understanding how the 17th amendment removes power from the “state” when the people in each state still elect the senator who represents them.

    It seems that election by the legislature would provide some stability to counter the passions of the people, but I’m not sure the effect is as dramatic as Ames and you claim.

  7. Connor
    July 13, 2009 at 1:41 pm #

    …what is the difference between the “passions of the people” and the “will of the states”?

    This question directly relates to the differences between a democracy and a republic. In a democracy, the people decide—through direct voting—the issues presented before them. In a republic, levels of representation are implemented to insulate the workings of government from the “passions of the people”.

    Why the difference? Well, when an uninformed populace is in charge of a decision, then they more easily fall prey to sound bytes, talking points, controlled information, and propaganda. At least with representatives, whose job it is to dedicate their time to studying out the issues in depth (ideally, of course), there is a level of knowledge and understanding that (again, ideally) far exceeds the average voter. Wise and just men are (yet again, ideally) tasked with the responsibility to use the information they have access to, study the issues, and make informed decisions.

    I see a marked difference in this way between the passions of the people and the will of the states. A body of state legislators—who take the time to study and debate issues of import to the state and its citizens—have a far better understanding of these things than do the average citizen they represent. As I argued in the article, the state’s interests are best found in the chambers of state government where those elected have a firm grasp of local issues.

    You yourself work for an organization that deals with state issues. I think you would probably agree with my assumption that the average individual is far more concerned with general/federal/national issues than they are local/state ones. Of those that take any interest in legislation at all, they would likely be more familiar with federal bills than they would with what’s going on in their own state.

    And so with both chambers of Congress being elected directly by the people, the states are essentially overlooked. Thomas Jefferson commented on this gravitation towards the federal government thusly:

    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 render powerless the checks provided of one government on another, and will become as venal and oppressive as the government from which we separated. (Thomas Jefferson, via Quoty)

    Under the current system, people in Wyoming care about what the federal government is doing for the country, but don’t take much interest in what the federal government is doing with regards to Wyoming. This is further noticed when observing the degree to which individuals do not consider themselves citizens of a state first, and then the United States. You’ll hear far more people refer to themselves as an American citizen, or citizen of the United States, than you would ever hear “I’m a citizen of Tennessee”, or whatever state they live in. The importance and sovereignty of states has drastically (and detrimentally, in my opinion) been reduced.

  8. Connor
    July 13, 2009 at 1:44 pm #

    Additionally, we must remember that if the federalist relationship is to be preserved (namely, that the United States of America is an organization of unionized, sovereign states), then those states (as political entities) must have representation themselves. By circumventing that setup (through the 17th amendment), you simply homogenize all citizens of the country into one big group, rather than recognizing their distinct state citizenship.

  9. JHP
    July 13, 2009 at 2:12 pm #

    Thanks, Connor, I think I understand better what you mean now.

    I see what you’re saying about people focusing more on federal issues than state and local, but I still don’t know if the effect is as dramatic as it might seem. People are always concerned, to some degree, about what effect federal legislation has on their state and local governments, or at least what they can get from the federal government (e.g. earmarks). In Utah, we constantly read in the news about nuclear waste policies that will affect the state, NCLB, public lands, energy policy (oil shale, natural gas, etc.), the BCS, to name some. But I think what you’re pointing out is the difference between people that live together in a state who are concerned about issues that affect them as individuals versus a state government (legislature, executive) as an entity that is concerned about issues that affect state government and, therefore, the people of that state indirectly.

    Now, if the people of each state collectively were to vote on every federal bill rather than a senator elected to represent them, then the effects of what you’re describing would be very extreme.

    Very interesting post.

  10. Carborendum
    July 13, 2009 at 7:12 pm #

    Connor & JHP: There are further issues with regard to the election of Senators.


    The initial reason there was a Senate anyway was that the Roman Senate showed that there was a great advantage in giving some political power to the wealthy (like England’s House of Lords).

    When the wealthy wish to maintain their wealth, they tend to know how to invest and how the economy grows best (or else their wealth is lost). By having wealthy people in a group help make policy, this will help the economic health of the people.

    But to safeguard against an oligarchy, the House of Representatives (commons) was created to counter any selfish motives of the Senators. And all bills are supposed to originate in the House–nowhere else. Again, no amendment. They just up and decided to change that.


    Senators were to be selected by State Legislatures because it was believed that state officials would have a better handle on the who’s who of politics. Senators would be more educated, politically aware, and successful individuals. Such people would be more “out-of-touch” with the common man. But they would have a greater view of the long term effects of laws. (IDEALLY).

    The House, on the other hand, was to be elected by the relatively ignorant masses (although the masses in the colonists day were much more educated than today’s college graduates). They would be subject to the passions of the people. They were not allowed to take extra time to consider if the people really knew what they were doing. They voted the will of the people. The only recourse was if the law violated the Constitution, they could vote against it even if the people wanted to pass it. This was yet another “brake” in the “engine”.

    The hope (ideally) was that if the common man saw the immediate benefits, and the aristocracy saw the long term benefits, maybe this was a good law.

    What we have instead is some sort of hybrid which essentially gives us an elected oligarchy. If you think this is an oxymoron, consider how many career politicians there are no matter how bad they mess up. If you don’t know what I’m talking about, just keep an eye on Al Franken and watch what happens (if there’s time).

  11. Connor
    July 13, 2009 at 7:25 pm #

    And all bills are supposed to originate in the House–nowhere else.

    Actually, the only bills that are required to originate in the House are revenue bills. (Article I Section 7)

  12. Carborendum
    July 14, 2009 at 4:14 pm #

    I stand corrected.

    But… come to think of it. Aren’t most bills nowadays essentially some form of revenue bill?

  13. rachel
    July 15, 2009 at 12:41 am #

    Of all the people I know, there are maybe 2 or 3 who understand what the Senate was originally supposed to be and why. They don’t teach that in public school.

  14. Eddie
    July 15, 2009 at 3:23 pm #

    (I also disagree with the 17th amendment), but I thought the reason they passed the 17th amendment was [mainly] because by that time, popular election of Senators was the de-facto standard anyway. I thought it worked like this: the state legislature choose for their senators whoever the people (by popular vote) told them to choose. Though I think I’m way oversimplifying it (or possibly just wrong altogether). See “Historical Background” section at http://en.wikipedia.org/wiki/Seventeenth_Amendment_to_the_United_States_Constitution

  15. Carborendum
    July 15, 2009 at 10:55 pm #

    That was interesting background. Thanks, Eddie.

  16. Richard Bradford
    July 2, 2010 at 2:11 pm #

    I suggest that everyone go to the Georgia state legislature website and look up senate resolution (SR) 632. It is a reaffirmation of Jefferson’s Kentucky Resolution, and is the strongest “nullification” legislation I have seen. It makes clear that the constitution was, and still is, a compact between the states only. The fed gov’t is not a party to the constitution, it is the entity created by it. The final arbiter of the fed gov’t power is not the fed gov’t, it is the states. Who would create an entity, give it certain powers, and also give that entity the power to create and judge its own power? The constitution certainly does not grant that to the fed gov’t.

    The constitution forbids the fed gov’t from becoming involved in any way on certain issues and subjects, like religion, speech, etc. The supreme court should never even agree to hear any domestic social issue case, like abortion, gay marriage, etc. Only of the issue involves an inalienable right does the constitution allow the supreme court to judge a state law. For example, where in the constitution does it say that a small group of people can enlist the help of the fed gov’t to foist their moral belief on the rest of the country? iT DOESN’T. A state’s right to regulate and police its citizens in all social and moral domestic issues is sovereign and supreme, and is not subject to federal review at all, unless, and only unless, an inalienable right has been violated. A citizen’s only recourse to a state’s policy is to elect representatives who will change the policy, or move.
    Any time a social issue comes up to any fed court, all 50 states should file an amicus brief telling the feds to butt out, and any decision they may render has no force and will be null and void, and that each state retains its constitutional right to set its own policy.
    But we stand by and let Judges like Sotomajor and probably Kagan get to the court, when their ONLY interest is to force their views, and the views of groups just lke them, onto all of us.


  1. Nullification: A Necessary Power for State Sovereignty — The Robert Scott Bell Show - July 6, 2010

    […] first topic has been briefly addressed previously here, but a summary is perhaps important. Prior to the ratification of the 17th amendment, states […]

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