The 10th Amendment has had renewed interest in recent times. More and more people are rediscovering the enumerated powers granted to the Federal government and realizing that it has greatly over-stepped it's bounds. Many are looking to this amendment as a remedy, believing that it is the key to reining in the out-of-control Federal leviathan.
The 10th Amendment, however, has no power if there is no one to enforce it. It has been in place since the beginning of our constitutional republic, but the Federal government has not restrained itself within these very clear bounds. Even though there are checks and balances built between the branches of the central government, the trend has been to gather more and more "undelegated" power to itself. Expecting anything else would be naive and akin to letting the fox guard the hen house.
The founders were in no way naive on this point. This is why they designed a system where by the States were to provide the major check on the power of the Federal government. Over and over again, during the Constitutional Convention, the State ratifying conventions, The Federalist Papers, in the Kentucky and Virginia Resolutions, the States were declared to be sovereign bodies who gave some very limited and narrow power to the central government to represent the federation of States in the dealings with the outside world. The central, or Federal, government was in no way superior to the States. The Constitution was, in effect, a contract defining how the States would be represented to the world, guidelines for how they would interact with each other, and an agreed upon set of basic human rights to be held inviolate among all of the citizens of the Federation. The signatories of this contract were the States themselves, as represented by their legislatures.
In this spirit, U. S. Senators were to be appointed by the State legislatures to act as "ambassadors of the states," as Fisher Ames, Massachusetts Constitutional convention delegate, referred to them. They were to "be vigilant in supporting [the states'] rights against infringement by legislative or executive of the United States," according to Connecticut delegate Roger Sherman. The Senate, though was only one house of the Congress. The House of Representatives, sometimes referred to as "The People's House" was to be the more direct voice of the citizens of the States. These two houses of Congress were deliberately designed to represent "opposite and rival interests" to temper the will of the people against the "tyranny of the majority," and to constrain the power of the government.
But, in 1913 the very essence of our carefully-crafted form of government was dealt a near fatal blow with the ratification of the 17th Amendment. State legislatures were removed from the process of choosing U.S. Senators, and therefore lost any control of this body. This, in effect, removed the States check on the Federal government's power. Everything was different after this. From this point on, the Federal government began a steady march toward more and more centralized power.
The reasons given for the need for the 17th Amendment were very populist sounding. They said that the State legislatures were corrupt and were playing politics with the appointment of Senators. They said that special interests were having unseemly influence on the Senate. They said that "The People" should have a more direct voice in the choice of Senators. This all sounded good, and right to many at the time, but, C. H. Hoebeke, author of The Road to Mass Democracy points out that"
"In retrospect, the amendment failed to accomplish what was expected of it, and in most cases failed dismally. Exorbitant expenditures, alliances with well-financed lobby groups, and electioneering sleights-of-hand have continued to characterize Senate campaigns long after the constitutional nostrum was implemented. In fact, such tendencies have grown increasingly problematic. Insofar as the Senate also has participated in lavishing vast sums on federal projects of dubious value to the general welfare, and producing encyclopedic volumes of legislation that never will be read or understood by the great mass of Americans, it can hardly be the case that popular elections have strengthened the upper chamber's resistance to the advances of special interests. Ironically, those elections have not even succeeded in improving the Senate's popularity, which, according to one senior member, currently places a senator at about "the level of a used-car salesman."The Federal government has failed to exercise real restraint on it's own power. Even if the reasons given at the time for the 17th amendment were valid, and there is a lot of evidence they were not, the Amendment has been a failure, as Hoebeke points out above. The States were effectively neutered by this amendment, undermining the original design of our founders.
Our system of government, as originally designed, worked much better before the Amendment, as Todd J. Zywicki, Law Professor from George Mason University, points out.
"In preserving federalism and bicameralism, the Senate did an extraordinary job before 1913. Throughout the nineteenth century, the federal government remained small and special-interest legislation was limited. The activity of the federal government was largely confined to the provision of 'public goods' such as defense and international relations."Zywicki believes that passage of the 17th Amendment "was primarily a rebellion of emerging special interests against federalism and bicameralism, which restrained the ability of the federal government to produce legislation favorable to those interests. Changing the method of electing senators changed the rules of the game for seeking favorable legislation from the federal government, fostering the massive expansion of the federal government in the twentieth century." In other words, rather than removing the influence of special interests, it strengthen them by making it easier to lobby one small group of 100 Senators, rather than the legislatures of 50 States.
And, the result is very well stated by Thomas J. DiLorenzo in hid book, Hamilton's Curse:
"Today states are the slaves to federal 'mandates.' They beg for federal dollars to finance the seemingly unlimited regulatory mandates emanating from Washington, D.C., covering how fast citizens may drive, when and how much alchol they may consume, how to treat drinking water, who may own firearms and where they may use them, and an endless stream of nanny-state harassment. When a state does protest an 'unfair' and burdensome federal mandate, it is usually quickly disciplined by the mere threat of diminished federal subsidies for the politicians' favorite pork-barrel programs, usually for road construction."So, if we are to see a return to our founding principles...if the 10th Amendment is ever to have a chance to be enforced, we must restore the rightful role of the States. We must return to a decentralized form of power with the proper checks and balances in place.
We must repeal the 17th Amendment!
