Golden Nuggets from U. S. History

The Blue Quill Series
Concord Learning Systems

Direct Election of U.S. Senators versus States Rights

Previously, in a discussion of "Senators, U.S., what's wrong with direct elections?" Article V of the Constitution was cited which is:

"Article. V.

"The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth Section of the first Article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate."

Why did the founders place restrictions on changing "the first and fourth clauses in the ninth Section of the first Article" of the Constitution? Also, what are some of the ramifications of the 16th and 17th amendments?

The two clauses referred to are related to "importation" of slaves and the "counting" of persons for purposes of assessing federal taxes on the states. The writers of the Constitution were compromising with slave states, giving them about twenty years before the federal government could take advantage of its full power to make laws for foreign commerce and totally control all imports and exports.

In 1787 the thirteen colonies had experienced a victorious revolution but still faced internal and external threats. Both New York and New Hampshire claimed the area that later became Maine. Virginia claimed lands to the west (Kentucky) although the original Virginia Charter did not extend that far and the Kentuckians did not agree that they were part of Virginia. North Carolina, whose original charter extended "to the south seas," claimed the lands west of the mountains (Tennessee) but the settlers there yearned for their own sovereignty. Compounding these disputes were the constant fears from Indians; from the British (who had not given up on the continent); from the Spanish in Florida and Louisiana; and from the French who were in Louisiana, Canada and in the area which became the Midwest U.S (Northwest Territories). The Colonist realized that survival required unification and a central government with authority to deal with or settle such matters.

The Constitution forming the United States was written in 1787 and ratified by the states in 1789, 72 years before the outbreak of the Civil War. Of the original thirteen states, five were considered "slave states," or states where slave ownership was embodied in the culture. They were North Carolina, South Carolina, Georgia, Virginia, and Maryland. Of the eight other states, most permitted slave ownership but it was highly unpopular, especially in Massachusetts, Rhode Island, Connecticut, New Hampshire and portions of New York state. Delaware, New Jersey, Pennsylvania and parts of New York were anti-slavery, but their attitude was for toleration of others who owned slaves.

Forming a single nation with such diverse political views was a bold undertaking but, contrary to modern thought, slavery was not a monolithic hurdle... The greatest concern facing the delegates at the 1787 convention was gaining national and internal security while retaining individual liberties and state's rights. The slavery question was settled early by a tacit understanding that slave ownership was a state's right, not subject to debate. The anti-slave delegates knew that any other stance on this point would end the convention and any hope for a union. The slave states were satisfied with their self-perpetuating inventory of slaves and did not strongly object to an appeasement clause which would permit prohibition against importation of slaves at some future date, i.e., -- "shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight," -- about twenty years later. Also, showing solidarity for the concept that the central government should control and tax exports and imports, the slave delegates agreed that a tax, "not exceeding ten dollars for each person," could be placed on imported slaves. For the duration of the convention, debates on slavery centered on how to count slaves (and Indians) for determining the people's representation in congress. This debate was resolved with:

"Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years [indentured persons], and excluding Indians not taxed, three fifths of all other persons [slaves]." [The three-fifths restriction was eliminated with Amendment XIV in 1868 which granted citizenship to ex-slaves and Amendment XV in 1870 which extended their right to vote.]

As the convention dragged on through the hot summer, many attempts were made to add clauses and sections to enumerate individual and state's rights, but each proposal was beaten back with the logic that such enumeration was not necessary, and in fact, was counter-productive, because the Constitution being developed was to enumerate "delegation of authorities" to a central government, and that ANY AUTHORITIES not specified in the Constitution would NOT be granted to the federal government. (Later, Amendment X, "retained by the states and by the people.") Most delegates were against listing ANY states or individual rights, fearing that if SOME rights were enumerated, the implication would be that those were the ONLY rights held by the states and the people; the exact opposite of "original intent."

Several attempts were made to add explicit clauses restricting the federal government to the exact writing in the Constitution, but reasoning prevailed when debaters pointed out that such clauses would require the addition of detailed policies and procedures for treaties, conduct during war, settlement of disputes between states, administration of territories, the federal court system, customs activity, postal service, etc. Furthermore, such restrictive clauses might require a provision for holding public referendums on issues not thought out in advance; a complete departure from a republican form of government.

Finally, it was agreed that to hold the federal government in line each state would appoint two Senators, through their legislature's "most numerous body," who would serve in dual rolls: Keep one eye on state's rights and interest, and the other jaundiced eye on the executive branch, the federal courts, and the House of Representatives. It was contemplated that members of this body would be older, wiser, more experienced, and better qualified than members of the House and members of state legislatures. Furthermore, Senators would serve six-year staggered terms with only one-third facing re-appointment every two years which would assure continuity of policy and long term planning. The appointed Senators would be somewhat isolated from public knee-jerk reaction to current public debate, yet they would answer for their political acts to state legislatures, and thereby to the public. The founders derived the concept for the senate from the ancient Greeks and Romans and expected the U.S. Senate to stand in stark contrast to the British Parliament. Senators were never perceived as second and third representatives of the people, subject to the same criteria as a member of the House of Representative, or the same public scrutiny as a member of a state House or local Register of Deeds. [Why else would Senators have six-year terms, while the president is elected for only four years?]

The effect of Amendment XVII (direct election of Senators) is glaring. Each citizen now votes for three representatives to congress and any ties to the states have been severed. All 535 members of the congress are Washington insiders who march in unison to a federal agenda with zero regard for state's interest: All pander to each voter. State's rights are now like victim's of crime; no one to represent that interest. State legislatures are totally ineffective in this regard because the federal bureaucrats simply ignore governors and state politicians. When Senators were appointed by legislatures, state officials had considerable clout with federal authorities. Furthermore, the political acts of U.S. Senators kept public attention focused on the state legislatures, which are now correctly regarded by the voting public as irrelevant entities. Recent national surveys reveal that more than 80% of the voting age public could not identify their representatives to their state's assembly.

The consequences of Amendments XVI and XVII are severe. Instead of the states deciding what needs federal attention, the federal government decides. Instead of tax money being collected by the states and remitted to the federal treasury, the tax money is collected by the federal government and doled back to states with many strings attached. The federal government now controls education (which is not mentioned in the Constitution), speed limits on most highways, automobile seat belts, room temperature in buildings, health care, relationships between doctor and patient, hospitals and other health care, guns, knives, food, businesses (all sizes), interest rates, banks, insurance, farms, religion (through tax policy), employers, employees, police departments, court rooms, prosecutors, jails, prisons, libraries, child care, land use, water, air, fuel, and-on and-on.

There is a subtle move underway to further consolidate law enforcement under the federal umbrella. One wedge is to use highly volatile words like "civil rights" and "hate crimes," which rank right up there with motherhood and apple pie. No one can effectively quarrel with the idea that all people are entitled to civil rights and no one should be the target of a hate crime. Federal authorities only have to imply that state governments are incompetent, and more than 80% of the general public will agree, notwithstanding the fact that they -- the public -- elected the people who run those incompetent governments. The problem is not only with the people in State Houses, but rather with the system. State governments have little power.

Alexander Hamilton's vision for a federal government was based on his conviction that all public policy could be effectively decided in one governmental body and, therefore, state governments were not necessary. If Hamilton was wrong, Amendments XVI and XVII should be repealed... If Hamilton was right, we are wasting a lot of money funding do-nothing state legislatures.

Philosophos Historia

1999-2001 Concord Learning Systems, Concord, NC. All rights reserved.