CONSTITUTIONS

Federalism, the Supreme Court, and the Seventeenth Amendment: The Irony of Constitutional Democracy by Ralph A. Rossum (Lexington Books) Abraham Lincoln worried that the "walls" of the constitution would ultimately be levelled by the "silent artillery of time." His fears materialized with the 1913 ratification of the Seventeenth Amendment which eliminated federalism's structural protection, altering the very nature and meaning of federalism. This is the provocative argument of Ralph A. Rossum's new book which considers the forces unleashed by an amendment to install the direct election of U.S. Senators. Far from expecting federalism to be protected by an activist court, the framers, Rossum argues, expected the constitutional structure, and particularly election of the Senate by state legislatures, to sustain it. In "Federalism, the Supreme Court, and the Seventeenth Amendment" Rossum challenges the fundamental jurisprudential assumptions about federalism. He also provides a powerful indictment of the controversial federalist decisions recently handed down by an activist U.S. Supreme Court seeking to fill the gap created by the Seventeenth Amendment's ratification and protect the original federal design. Rossum's masterful handling of the development of federalism restores the true significance to an amendment previously consigned to the footnotes of history. It demonstrates how the original federal design has been amended out of existence; the interests of states as states abandoned; and federalism left unprotected, both structurally and democratically. It highlights the ultimate irony of constitutional democracy: that an amendment, intended to promote democracy, even at the expense of federalism, has been undermined by an activist court intent on protecting federalism, at the expense of democracy.

Author Summary:

This book is a critical commentary on the spate of controversial federalism decisions recently handed down by an activist United States Supreme Court. Twelve times since 1976 (and, with much greater frequency, eleven times since 1992), the Court has invalidated federal laws‑many of them passing both houses of Congress by wide margins‑in order to preserve what it has described as "the original federal design."' This book challenges the Court's fundamental jurisprudential assumptions about federalism and argues that (1) the framers did not expect federalism to be protected by an activist Court but rather by constitutional structure‑in particular, by the mode of electing the United States Senate;' (2) the political and social forces that culminated in the adoption and ratification of the Seventeenth Amendment eliminated that crucial structural protection and thereby altered the very meaning of federalism itself; and (3) as a consequence, the original federal design has been amended out of existence and is no longer controlling‑in the post‑Seventeenth Amendment era, it is no more a part of the Constitution the Supreme Court is called upon to apply than, for example, in the post-Thirteenth Amendment era, the Constitution's original fugitive slave clause'

The framers understood that federalism would be protected by the manner of electing (and, perhaps more importantly, reelecting) the Senate. This understanding was perfectly captured in a July 1789 letter to John Adams in which Roger Sherman emphasized that "the senators, being eligible by the legislatures of the several states, and dependent on them for reelection, will be vigilant in supporting their rights against infringement by the legislative or executive of the United States."' The adoption and ratification of the Seventeenth Amendment, providing for direct election of the Senate,' changed all that.

After an eighty‑six‑year campaign, the Seventeenth Amendment was approved by the United States Congress and ratified by the states to make the Constitution more democratic.' Progressives argued forcefully, persistently, and ultimately successfully that the democratic principle required the Senate to be elected directly by the people rather than indirectly through their state legislatures. The consequences of the ratification of the Seventeenth Amendment on federalism, however, went completely unexplored, and the people, in their desire to make the Constitution more democratic, inattentively abandoned what the framers regarded as the crucial constitutional means for protecting the federal‑state balance and the interests of the states as states.'

Following ratification of the Seventeenth Amendment, there was a rapid growth of the power of the national government, with the Congress enacting measures that adversely affected the states as states_measures that, quite simply, the Senate previously would never have approved.' Initially, i.e., during the period from the amendment's ratification in 1913 to National Labor Relations Board v. Jones & Laughlin Steel Corporation in 1937, and then again since National League of Cities v. Usery in 1976, the United States Supreme Court's frequent reaction to this congressional expansion of national power at the expense of the states was and has been to attempt to fill the gap created by the ratification of the Seventeenth Amendment and to protect the original federal design. It has done so by invalidating these congressional measures on the grounds that they violate the principles of dual federalism; go beyond the Court's narrow construction of the commerce clause; "commandeer" state officials to carry out certain federal mandates; exceed Congress's enforcement powers under Section 5 of the Fourteenth Amendment, or, most recently, trench on the states' sovereignty immunity. In so doing, it has repeatedly demonstrated its failure to appreciate that the Seventeenth Amendment not only eliminated the primary structural support for federalism but, in so doing, altered the very nature and meaning of federalism itself.

There is irony in all of this: An amendment, intended to promote democracy, even at the expense of federalism, has been undermined by an activist Court, intent on protecting federalism, even at the expense of the democratic principle. The irony is heightened when it is recalled that federalism was originally protected both structurally and democratically the Senate, after all, was elected by popularly elected state legislatures. Today, federalism is protected neither structurally nor democratically‑the ratification of the Seventeenth Amendment means that the fate of traditional state prerogatives depends entirely on either congressional sufferance (what the Court calls "legislative grace") or whether an occasional Supreme Court majority can be mustered.

This book argues that federalism as it was understood by the framers, i,e., the "original federal design -‑effectively died as a result of the social and political forces that resulted in the adoption and ratification of the Seventeenth Amendment. The Court, however, has had trouble learning this lesson‑--it took it until Jones & Laughlin in 1937 to learn it initially, and, since National League of Cities in 1976, it has repeatedly forgotten it. It argues that the Court‑typically by the slimmest of majorities‑has refused to acknowledge that its efforts to revive federalism‑by drawing lines between federal and state power that the framers denied could be drawn and that they never intended for the Court to try to draw‑are merely futile attempts to breathe life into a corpse.

Chapter 1 introduces the Supreme Court's efforts since 1976, and especially since 1992, to protect federalism by examining its reasoning in National League of Cities v. Usery," New York v. United States," Lopez v. United States," Seminole Tribe of Florida v. Florida, City of Boerne v. Flores, Printz v. United States, Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, Alden v. Maine, Kimel v. Florida Board of Regents, United States v. Morrison," and Trustees of the University of Alabama v. Garrett. These decisions reveal an activist Court that has utterly failed to appreciate that the original federal design it is so committed to protecting is no longer a part of our constitutional system, as it was fundamentally altered by the Seventeenth Amendment.

Chapters 2 and 3 discuss why the framers valued federalism and how they understood that the mode of electing the Senate (rather than reliance on the Supreme Court) would be the principal means not only for protecting the interests of the states as states but also for identifying the line demarcating federal from state powers.

Chapter 4 provides three case studies from the First Congress that illustrate how well the framers' expectation that federalism would be protected by the mode of electing the Senate initially played out in practice. It examines the adoption of the Bill of Rights, the enactment of the Judiciary Act of 1789, and the passage of the act establishing the first Bank of the United States.

Chapter 5 shows how fully Chief Justice John Marshall appreciated the framers' understanding that federalism was to be protected structurally and not judicially. It argues that he felt free to construe Congress's enumerated powers broadly in cases such as United States v. Fisher," McCulloch v. Maryland, and Gibbons v. Ogden, because he trusted that the Senate would be vigilant and not approve legislation that adversely affected the states as such.

Chapter 6 examines in detail the political and social forces at work in the states, and the legislative debates in the United States Congress, that ultimately led to the adoption and ratification of the Seventeenth Amendment and, thereby, to the public's inattentive alteration of the structural protection of federalism. It focuses on four interrelated factors: (1) legislative deadlocks over the election of senators brought about when one party controlled the state assembly or house and another the state senate; (2) scandals brought on by charges of bribery and corruption in the election of senators; (3) the growing strength of the Populist movement, with its deep‑seated suspicion of wealth and influence and its penchant for describing the Senate as "an unrepresentative, unresponsive `millionaires club,' high on partisanship but low in integrity" and (4) the rise of Progressivism and its belief in "the redemptive powers of direct democracy," i.e., its conviction that the solution to all the problems of democracy was more democracy.

Chapter 7 reviews the post‑Seventeenth Amendment congressional expansion of national power at the expense of the states as well as the Court's sporadic attempts to fill the gap created by the Seventeenth Amendment and to protect "the original federal design." It argues that judicial second‑guessing of Congress's use of its plenary powers has never effectively protected federalism and never can, and that, as a consequence, the Court should announce that (1) federalism died with the ratification of the Seventeenth Amendment, (2) it is therefore explicitly withdrawing from attempting to draw lines between permissible and impermissible federal power, and (3) it will hereafter treat federalism questions as political questions, acknowledging in the language of Baker v. Carr ,' that there are no "judicially discoverable and manageable standards for resolving" them and that the resolution of these questions is "constitutionally commit[ted]" to the Congress alone. It includes a detailed and critical examination of City of Boerne v. Flores, the most blatant example to date of the Supreme Court's effort to protect a pre‑Seventeenth Amendment understanding of federalism at the expense of the people's post‑Seventeenth Amendment commitment to democracy. In City of Boerne, the Supreme Court, in the name of protecting the "federal balance," struck down the Religious Freedom Restoration Act of 1993, passed unanimously by the United States House of Representatives and by a vote of ninety‑seven to three in the Senate and enthusiastically signed into law by President William J. Clinton. The Court asserted that the Congress unconstitutionally exceeded the powers conferred on it by Section 5 of the Fourteenth Amendment and thereby upset federalism. City of Boerne has quickly become an extremely influential precedent. The Court has subsequently relied on it to declare unconstitutional federal laws abrogating state sovereign immunity in cases in which the states were charged with violating trademark or patent laws or were sued by their own employees for discrimination on the basis of age or disability or for refusing to pay the minimum wage; it has also employed it to strike down a key provision of the Violence against Women Act. In each of these cases, the Court has perversely transformed Section 5 of the Fourteenth

Amendment, intended by its drafters to be a sword by which Congress could protect individuals from constitutional violations of their rights by the states, into a shield by which state governments are protected from the consequences of their constitutional violations.

The conclusion offers a brief reflection on a passage in Abraham Lincoln's Lyceum Speech, in which he worried that the founding principles of the republic were "fading" from view and that, as a consequence, the "walls" of our Constitution would ultimately be "leveled" by "the silent artillery of time." That passage perfectly describes the fate that has befallen the structural supports of federalism. The framers designed the Constitution so that federalism would be protected structurally through the election of the Senate by state legislatures. Over time, however, the public's understanding of the reasons for that structural protection "faded," and the walls of federalism were leveled by the "silent artillery of time," i.e., by an eighty‑six‑year campaign to make the Constitution more democratic resulting in the adoption and ratification of the Seventeenth Amendment.

The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era by Willi Paul Adams (Madison House: Rowman & Littlefield) For the last twenty years this book has been cited by every serious writer on early American constitutional development. Any constitutional history of the independent United States must begin with this comprehensive study. Professor Adams combines a European perspective and a thorough knowledge of the antecedents of 1787 to create an insightful analysis of the replacement by the revolutionary generation of one government by another by--they thought--"constitutional" means. Acting for "the people" in 11 of the 13 rebelling states, various kinds of self-empowered committees, "congresses," or "conventions" created new constitutions and a system in which the states dominated over the weaker Confederation government. This volume contains two new chapters: one demonstrating precedents in the state constitutions for the U.S. Constitution, and another chapter critically testing the "republicanism over liberalism" thesis against political ideas and institutional arrangements that constitute the first state constitutions. The bibliography has been updated to include the rich body of work written during the last two decades, much of it indebted to this pioneering study.

Defending Constitutional Rights by Frank M. Johnson, edited by Tony A. Freyer (Studies in the Legal History of the South: The University of Georgia Press) Federal Judge Frank M. Johnson of Alabama decided many of the most important civil rights and liberties cases in twentieth century American history. During the 1950s and 1960s his decisions supported Martin Luther King Jr. and other civil rights fighters in their struggles for justice and equality. Johnson extended the Constitutional defense of individual rights for women, students, prisoners, mental health patients, poor criminal defendants, and voters during his active judicial career, which lasted until 1991, in the South.

This collection assembles some of Johnson's most thought-provoking and insightful essays, many of which explain and defend his decisions. Also included in this volume is the first published transcript of a 198o public television interview with Bill Moyers. Meticulously detailed and documented, yet accessible to a wide range of readers, this book explores the constitutional ideals that Johnson forged and defended as he persistently overcame public officials' resistance to constitutional rights and social change.

Freedom and Time: A Theory of Constitutional Self-Government by Jed Rubenfeld (Yale) Should we try to "live in the present"? Such is the imperative of modernity, Jed Rubenfeld writes in this important and original work of political theory. Since Jefferson proclaimed that "the earth belongs to the living"since Freud announced that mental health requires people to "get free of their past"since Nietzsche declared that the happy man is the man who "leaps" into "the moment"modernity has directed its inhabitants to live in the present, as if there alone could they find happiness, authenticity, and above all freedom.

But this imperative, Rubenfeld argues, rests on a profoundly inadequate, deforming picture of the relationship between freedom and time. Instead, Rubenfeld suggests, human freedomhuman being itselfnecessarily extends into both past and future; self- government consists of giving our lives meaning and purpose over time. From this conception of self-government, Rubenfeld derives a new theory of constitutional law's place in democracy. Democracy, he writes, is not a matter of governance by the present "will of the people"; it is a matter of a nation's laying down and living up to enduring political and legal commitments. Constitutionalism is not counter to democracy, as many believe, or a pre-condition of democracy; it is or should be democracy itselfover time. On this basis, Rubenfeld offers a new understanding of constitutional interpretation and of the fundamental right of privacy.

The Anti-Federalists: Selected Writings and Speeches edited by Bruce Frohnen (Conservative Leadership Series: Regnery) contains the key essays that were written in response to the Federalist Papers and were instrumental in helping shape the founding of our country. It is of course strong on State rights. A Case for Conservatism by John Kekes (Cornell) In his recent book Against Liberalism, philosopher John Kekes argued that liberalism as a political system is doomed to failure by its internal inconsistencies. In this companion volume, he makes a compelling case for conservatism as the best alternative. His is the first systematic description and defense of the basic assumptions underlying conservative thought. Conservatism, Kekes maintains, is concerned with the political arrangements that enable members of a society to live good lives. These political arrangements are based on skepticism about ideologies, pluralism about values, traditionalism about institutions, and pessimism about human perfectibility.

The political morality of conservatism requires the protection of universal conditions of all good lives, social conditions that vary with societies, and individual conditions that reflect differences in character and circumstance. Good lives, according to Kekes, depend equally on pursuing possibilities that these conditions establish and on setting limits to their violations. Attempts to make political arrangements reflect these basic tenets of conservatism are unavoidably imperfect. Kekes concludes, however, that they represent a better hope for the future than any other possibility.

John Kekes is Professor of Philosophy and Public Policy at the State University of New York at Albany. He is the author of nine books, including Against Liberalism, Pluralism in Philosophy, The Morality of Pluralism and Moral Wisdom and Good Lives.

THE DEBATE ON THE CONSTITUTION: Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle over Ratification Part One: September 1787 to Feburary 1788

selected and edited by Bernard Bailyn

The Library of America

$35.00, cloth, 1214 pages, notes, index

0-940450-42-9

THE DEBATE ON THE CONSTITUTION

Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle over Ratification Part Two: January to August 1788

selected and edited by Bernard Bailyn

The Library of America

$35.00, cloth, 1175 pages, notes, index

0-940450-64-X

two volume boxed edition:

The first constitution of the United States was the Articles of ratified in 1781. Because this document left too much sovereignty to the states, it was defective as an instrument of government. Some leaders felt that the individual states suffered economically from the lack of a strong central authority; commercial barriers between the states seemed particularly onerous. They also felt that the lack of unity among the states was causing serious problems in international relations and defense. The weakness of the central government was dramatized by such events as Shays’s Rebellion (1786-87) in western Massachusetts, and by the ability of one state to block legislation desired by the other twelve. The Annapolis Convention of 1786 called for a general Constitutional Convention that met at Philadelphia in May 1787.

Twelve states (all but Rhode Island) named 73 delegates to the Constitutional Convention. Of these, 55 came but only 39 signed the Constitution on Sept. 17, 1787. The leaders of the convention were statesmen who in modern parlance would be called middle-of-the-road: George Washington, Alexander Hamilton, James Madison, John Jay, and Benjamin Franklin. Conspicuous by their absence were the firebrands of democracy, Patrick Henry and Sam Adams, and the author of the Declaration of Independence, Thomas Jefferson. In his keynote address at the convention, Edmund Randolph said: "Our chief danger arises from the democratic parts of our (state) constitutions. It is a maxim which I hold incontrovertible, that the powers of government exercised by the people swallow up the other branches." Writing later in The Federalist, Hamilton said: "The people are turbulent and changing; they seldom judge or determine right."

The prevailing political philosophy of the framers of the Constitution would later be articulated as follows by Madison in The Federalist:

"It may be a reflection on human nature, that such devices (checks and balances) should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence upon the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions."

What they sought was a balance that Madison called "mixed government" and "free government," a compromise between monarchy and democracy as they knew them. In these volumes we are offered a selection of the significant debate as it took place in private correspodance. In journals and public forums and in State conventions. The language is now antique to our more sparse contemporary diction but with a little willingness to let them have their voice, the vigor and conviction to which the provisions were envisioned and debated comes through with strident clarity.

Despite the consensus among the framers on the objectives of the Constitution, the controversy over the means by which those objectives could be achieved was lively. Controversy developed over the presidency and the way in which the president was to be elected; the relationship of the states to the national government; the relationship of the national government to the people; and the relationship of state to state. The latter conflict was partially resolved through the great compromise that gave small states equal representation with the large states in the senate but apportioned representation according to population in the House of Representatives. Other compromises involved the slavery issue; each slave was to be counted as three-fifths of a person in determining representation and in apportioning direct taxes, and the migration or importation of slaves was allowed to continue until 1808. Generally, sectional interests were also protected by compromise. Northern interests were upheld by giving the new government the power to regulate trade and commerce, and the South was protected against export taxes and the immediate prohibition of the slave trade. Southern and Western border interests were reassured that their territorial rights would be protected by the requirement that treaties be ratified by two-thirds of the Senate.

After it was signed, the Constitution was offered for ratification. By its own terms, "the Ratification of the Conventions of nine States" was required. This was achieved on June 21, 1788, and by 1790 all 13 of the original states had ratified it. Ratification was vigorously opposed by the Anti-Federalists, who feared that a powerful central government would minimize the role of the people in governance and threaten individual rights and local interests. The effort to counter the arguments of the Anti-Federalists led to intense campaigning, including the writing of The Federalist by Madison, Hamilton, and Jay. The significant and lasting accomplishment of the opponents was to get the Bill of Rights added to the Constitution. This more extended debate is shown in the Chronology to these two volumes.

It is our considered conviction that all general booksellers should devote space to the whole merchandise line of the Library of America without hesitation or provision. Commended as "the most important book-publishing project in the nation’s history" (Newsweek), The Library of America furnishes the flower of America’s literary heritage at very reasonable prices. Not merely does this series present ready entrance to our national legacy by publishing the foremost writers of American literature, history, poetry, philosophy, and statecraft; but it arranges their work in a way that puts usual book production in this nation to shame. Each book is crafted to a premium quality in design, production, and erudition. Every volume devotes up to 1,500 pages of vintage American writing in authoritative, unabridged texts. Each volume contains a chronology of the author’s life, useful notes and a brief exposition of the selected text. The pages are easy to read and are printed upon high-quality acid-free paper sewn to lie flat when opened. Bound in cloth with a ribbon marker and with printed end papers, each volume is at price per page lower than most paper editions. The Library of America merits our considered support by purchasing these editions as they reflect our interests. These books are ready-made gifts. With more than eighty titles available, why not consider collecting your favorite American authors in these editions and then try some lesser known authors, many will surprise and delight.

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