The Strange Obsession With Federalism

The Seventeenth Amendment, which made Senators elected by direct popular vote rather than selected by state legislatures, was a bad, bad thing, we are told. By drastically weakening the influence of the state governments upon the national government, the 17th Amendment threw American federalism all out of whack. Ever since then, there has been no effective power in the national government favoring the preservation of the power of state governments, and so the federal government has been appropriating more and more power onto itself. And this is bad, we are told.

Why is it bad? The Senators elected directly by the people are willing to vote for an overall federal policy that has the federal government exercising more power than a Senate chosen by state governments would. Okay. To me, as someone who believes both in democracy in general and in making democracy relatively non-convoluted, it strikes me that the problem is obviously on the side of the pre-17th Amendment-style Senate. Roughly speaking, "the Senate elected by the people" is the will of the people. So saying that the post-17th Amendment Senate has acquiesced to large expansions of federal power is saying that the people have made that acquiescence. Is there a problem here? If the American people tire of the old balance of power between the states and Washington, is there a principled reason why they shouldn't be allowed to change it? Should we bake in an institutional bias into the system that always over-accounts for the interests of state governments?

As an aside, it's not entirely true, necessarily, to say that federal power has expanded. Usage of federal power has expanded, there's no doubt about that. Say the federal government started exercising a lot more power beginning in 1937, the year the Supreme Court ratified the Second New Deal as Constitutional, and let's also say that the Court would not have upheld similar usages of federal power pre-1937. There are three possibilities. The first is that the Court would have been wrong in striking down the New Deal pre-'37. The second is that the Court has been wrong in allowing the New Deal and its progeny post-'37. The third is that something about the true, underlying constitutional order changed in 1937. There are a lot of people who believe that Door #2 is in fact the correct answer, and at least one of them is on the Supreme Court. Most, though, tend to think that the Court was mainly wrong in striking down parts of the New Deal before 1937, and that in truth most of the modern federal government is constitutional. But if you think that, then those things have been Constitutional forever, it's just that the federal government chose as a matter of policy not to do them. (Forever, or until as far back as you need to go to find a Constitutional Amendment that makes a difference.)

If you assume that the underlying true constitutional order does not actually change when the Constitution is not amended, then I would actually assert that the 17th Amendment, while it definitely changed the structure of American federalism in and of itself, did not create a climate that further eroded federalism. The net changes to the Constitution since 1913 have been either expansions of the franchise (which is admittedly a restriction on state power, but I think it's one most people would consider good) or relatively federalism-neutral things like fixing Presidential succession and establishing term limits for the President. Yes, the directly-elected Senate has probably been more willing to use the power the federal government is now generally admitted to possess. And it's possible that an indirect Senate like that of the old regime would have had a bias against confirming Justices who would interpret the Constitution in the way we typically consider correct nowadays. But that's a bug, not a feature.