The Founding Fathers had three purposes in creating the Senate. The one
most of us are familiar with is that by dividing representation in the
legislative branch into one chamber based on population and another in
which the states were equally represented, a compromise between large
and small states was made that made ratification of the Constitution
possible.
Another reason was to prevent a temporary majority in "the people's
house" from doing something rash. James Madison told Thomas Jefferson
the Senate would be a "necessary fence" against the "fickleness and
passion" that sometimes gripped the public. The Senate was "the saucer"
in which we pour legislation to cool, George Washington is alleged to
have said.
This cooling was to be achieved in part simply by the existence of a
second body through which legislation must pass before it could become
law.
It was also to be achieved by the manner in which senators were chosen.
Unlike members of the House, who are elected directly by the people,
senators were to be elected by state legislatures. This was a
compromise between government by us, and government by the best among
us, the theory being that legislators were more likely to choose the
most able over the most popular.
There was another reason why senators were to be chosen by state
legislatures. That was to provide corporate representation of the
states in the federal government. This was undermined by the adoption,
in 1913, of the 17th Amendment, which provided for direct election of
senators.
Since then the federal government has run roughshod over the states, the
10th Amendment nothwithstanding. (The powers not delegated to the United
States by the Consitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people.)
According to a Rasmussen poll released Feb. 18, only 21 percent of
Americans think the federal government today represents "the consent of
the governed."
Columnist Tony Blankley, a former aide to House Speaker Newt Gingrich,
thinks the best way to restore the balance the Founders intended is to
repeal the 17th Amendment.
"If senators were again selected by state legislatures, the longevity of
Senate careers would again be tethered to their vigilant defense of
their state's interest — rather than to the interest of Washington
forces of interest," he wrote.
Mr. Blankley acknowledges the 17th Amendment was adopted because of
rampant corruption in state legislatures. It was said in those days
Standard Oil could do whatever it wanted with the Pennsylvania
legislature — except refine it. But, he said, "corruption dispersed to
the 50 state legislatures" is preferable to the corruption we see in
Washington today.
I agree with Mr. Blankley on that point. But there's a better way to
restore the balance of power the Founders intended. Nullification.
Nullification has a bad taint because it's associated with slavery.
It's most famous proponent was John C. Calhoun of South Carolina. He
maintained states had a right to refuse to recognize a federal law if it
were unconstitutional.
But nullification traces it origins to the Virginia and Kentucky
Resolutions of 1798 and 1799, in which Thomas Jefferson and James
Madison declared states had the right to reject the Alien and Sedition
Acts as unconstitutional.
The most vigorous assertion of a right to nullification came in
Wisconsin, where the state supreme court declared the Fugitive Slave Law
null and void in the Badger state (Ableman v. Booth).
When, in 1832, then Vice President Calhoun asserted the right of South
Carolina to nullify a tariff law, President Andrew Jackson declared this
to be treason, and threatened to hang his vice president if South
Carolina persisted.
I agree with President Jackson that to permit an individual state to
nullify a federal law is the path to chaos. But what if we approved a
Nullification Amendment, which said that if, within a five year period,
the legislatures of two thirds of the states pass resolutions to nullify
a regulation promogulated by a federal agency, or a law passed by
Congress, that regulation or law would be null and void?
This would, I think, be a way to provide a check on overweening federal
power while retaining such benefits that direct election of senators
have conferred upon us.
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