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According to David Firestone of The New York Times, a “surprising number” of the Tea Party members were calling for the repeal of the 17th Amendment of the US Constitution during the election campaign season of 2010. That amendment, which was ratified in 1913, provides for direct election by the people of each state of US senators. According to Firestone, “allowing Americans to choose their own senators seems so obvious that it is hard to remember that the nation’s founders didn’t really trust voters with the job. The people were given the right to elect House members. But senators were supposed to be a check on popular rowdiness and factionalism. They were appointed by state legislatures.” That it may seem so obvious to us does not mean that we have it right. Yet Firestone presumes so in writing, “a  modern appreciation of democracy — not to mention a clear-eyed appraisal of today’s dysfunctional state legislatures — should make the idea unthinkable.” Should it really?  Firestone seems biased in his dogmatism.

For one thing, the delegates to the Constitutional Convention in 1786 didn’t want to restrict direct representative democracy in the US Government to the US House only out of fear of mob rule as Firestone suggests.  They thought the direct power of the state governments in the US Government would be necessary to keep the new empire from consolidating at the imperial level (i.e., in the US Government). Firestone himself admits that to most authors of the Constitution, “allowing states to appoint the Senate was the linchpin of the entire federalist system and the real reason there are two houses of Congress.” Whereas the British House of Lords represents wealth, the US Senate was to represent not only that, but semi-sovereign republics as well.  The latter likens the US Senate to the European Council rather than to the upper chamber of one of the EU’s states.  Firestone makes a category mistake where he avers that it “may be true that appointed senators, accountable only to state legislators, would never approve of many useful federal mandates designed to put the national interest above local parochialism — including everything from the minimum wage to the new health care reform law.” States commensurate with European kingdoms/countries are not local polities.  Furthermore, reducing the US Government to a “national” interest ignores the semi-sovereign nature of the states (and thus the international principles in the design of the US Senate as opposed to the US House, which is national in nature).

Firestone seems to misunderstand what the US Senate is.  In referring to returning to having the state legislatures appoint their delegates to the US Senate as an “elitist notion,” Firestone forgets that state legislators are elected by the people and in fact have smaller electorates than do US House or Senate members.  Empowering state legislators would ironically be to bring power back closer to the people.  ”Senate candidates have to raise so much money to run that they become beholden to special interests,” Tea Party members say according to Firestone.  The members ”argue that state legislators would not be as compromised and would choose senators who truly put their state’s needs first.” That in turn would restore checks and balance to federalism, wherein both the state and federal governments would be checked (by the other). This is not just a matter of state rights; rather, it is a matter of a viable federalism instead of consolidation. As Tim Bridgewater, who ousted Sen. Robert Bennett of Utah as the Republican candidate writes, “We traded senators who represent rights of states for senators who represent the rights of special interest groups.” By rights of the states, one can infer an empowerment of the representatives elected by the people of the states.  Such a change would hardly be anti-democratic or elitist; rather, it would reduce the power of the elitism in Washington DC.  A writer ought to be careful in dogmatically writing that something is ridiculous or unthinkable, for the lack of thought could come back to haunt him or her.  It is clear that Firestone is not very open to the possibility that he could be wrong.  The arrogance of centralized power at an empire-level is truly remarkable, even in its press.

Source: http://www.nytimes.com/2010/06/01/opinion/01tue4.html?hp

In the U.S. Constitutional Convention, Governeur Morris said on July 2, 1787, that the “Rich will strive to establish their dominion & enslave the rest. They always did. They always will. The proper security [against] them is to form them into a separate interest.” (Madison, p. 233) By this he meant the U.S. Senate. The democratic principle in the U.S. House and the aristocratic spirit in the U.S. Senate “will then controul each other.” (Madison, p. 233) Having the State Legislatures appoint their U.S. Senators—as was the case until 1913—would defeat the independence of the Senate, and hence its function as a check on the excesses of democracy in the U.S. House.  Such excesses had just been evinced in Shays’ Rebellion in Massachusetts, wherein the legislature there had sided with the former soldiers who had not been paid for their service but were still to make payments on their debts.

In other words, one of the purposes of the U.S. Senate as originally envisioned was to protect property (including creditor interests). The assumption was that the representative democracy of the U.S. House would favor the lower classes.  Although the amounts spent on Senatorial campaigns in the early twenty-first century practially guarantee that the seats would defend the interests of the rich, that the Senators are elected by citizens rather than appointed by State governments must compromise the U.S. Senate as a check on the democratic excesses in the U.S. House. Even as this check has been enervated, the protection of wealth function endures.  Indeed, given Shaws’ Rebellion the check on excess democracy is really just the protection of property, which is practially guaranteed anyway by the amounts needed to run for the U.S. Senate.  Not surprisingly, in 2010 the medium wealth of a U.S. Senator was roughly $2.8 million. It is worth quoting from Governeur Morris again—this time from July 19 in Convention. “Wealth tends to corrupt the mind & to nourish its lvoe of power, and to stimulate it to oppression.” (Madison, p. 323)  As the number of electors per member of the U.S. House has increased, even that body could be said to evince a moneyed aristocracy.  The question may thus be raised: Is there a sufficient check against the rich in the national legislature?

Governeur Morris claimed in convention that the U.S. President “should be the guardian of the people, even of the lower classes” on account of the wealth-interest in the U.S. Senate. (Madison, p. 322). However, if the wealth interest has gained a foothold in the U.S. House and even in the presidency itself, that check may well be insufficient and nugatory. A return of domestic functions of government to those of the respective States could perhaps evince a greater weight for what Morris calls “the Mass of the people.” (Madison, p. 323)  At the very least, the lower houses of the State governments are not dominated by the rich. This was precisely what the delegates of the convention wanted to check, and the creation of a general government was their solution. It is no wonder that it has become top-heavy both at the expense of federalism and the poor.

Source: James Madison, Notes in the Federal Convention of 1787. New York: Norton, 1987

For general information on the U.S. Constitutional Convention, see: http://en.wikipedia.org/wiki/Constitutional_Convention_(United_States)

The Hungarian state government assumed the over-all presidency of the E.U. on January 1, 2011 for six months. This instantly put the question of whether some of the state laws enacted the previous year violated E.U. constitutional law.  The extent of the breach is itself instructive for us in wondering how it is that a state government could find itself so obviously in violation and yet look the other way.  In other words, this case study suggests that European integration, and federal government in general at the empire-level, is not exempted from the tensions in federalism between the state governments and a general authority tasked with holding the union together. According to The Wall Street Journal,  "In some ways the dispute between Budapest and Brussels goes to the heart of a debate over the proper distribution of power between national governemtns and the central authorities of the European Union."  Hungary's governor, Viktor Orban, stated, "The EU basically has no right to interfere" in these sorts of policy decisions. In 2008, EU government officials had criticized Hungarian officials for relying on short-term fixes rather than long-term spending cuts to shirk the state's budget deficit.

In Hungary, "crisis" taxes that fell disproportionately on out-of-state businesses doing business in the state had been enacted.  The European Court of Justice had previously ruled against such taxes having a disproportionate effect, yet somehow the Hungarian legislature missed this point in enacting the law. It should come as no surprise that officials of other state governments in the E.U. claimed that Hungary was targeting select sectors and out-of-state companies in particular to balance the state's budget. Even so, a state official in Hungary claimed that the "question is: how much economic liberty you have in the EU? We think every state does hoave economic freedom--within a certain framework, we have different methods and models."  While the notion of a shared framework allowing of diversity fits with modern federalism, the diversity cannot contradict the basic principles in the framework.  In this case, a common market requires that states do not discriminate in intention or consequence against firms based in other states. In other words, a common market requires a level playing field.

Secondly, the state legislature enacted a new media law that became quite controversial in the E.U. The law passed by the state legislature in late 2009 allowed regulators to impose fines for "unbalanced" or 'offensive" reports and sets limits for the amount of time that can be devoted to certain types of news. The law also required bloggers to register with the state government. It should be <i>prime facie </i> evident that this law goes against the E.U.'s commitment to freedom of the press.  Guy Verhofstadt, leader of one of the parties in the E.U. Parliament, stressed that no state government should be allowed to put "restrictions to freedoms that lie at the heart of our union of values." From the standpoint of republican principles alone (i.e, being a representative democracy, or "free"), a government fining journalists for being unbalanced or for their allocation of news stories is odious. That a state government in the E.U. would even attempt such a thing ought to give pause to anyone who assumes that it most of the governmental sovereignty in the E.U. should remain with the states. In other words, there is a real need for the E.U. governmental institutions to provide a check with teeth on wayward states, or the union will dissipate.

Finally, European Central Bank officials claim the Hungarian government's changing of the selection process of the state's bank's rate-setting committee threatens the bank's independence. This change of law in Hungary illustrates the difficulties involved in having monetary policy set at the E.U. level (for states using the euro as their currency) while fiscal policy is set at the state level.  Bringing fiscal policy to the E.U. institutions would give the E.U. the added puissance it would need to effectuate a viable check on state governments that for one reason or another are confused about E.U. basic law and principles.  In other words, because the state governments being on the same page concerning the E.U. and its principles cannot be taken for granted, so more power should transfer to the E.U. level from the states--though while working on institutional firewalls to keep the E.U. government from encroaching on the states such that a consolidated central state results (similar to what has happened in the U.S.). 

Source: Gordon Fairclough, "European Probe Fuels Tensions with Hungary," The Wall Street Journal, January 4, 2011, p. A11.