The States' House

The Second Draft, Part 3

The last essay restored the people’s chamber. This one restores the chamber that was never supposed to be the people’s at all, and that is where most modern readers will plant their feet. The Senate was built to represent the states themselves, as states, given a permanent seat inside the federal government so the governments closest to home would hold a structural check on the one farthest away. The first draft built that check. An amendment in 1913 quietly dismantled it. And the steady growth of federal power that everyone complains about, from one direction or another, began in earnest the day the states lost their voice in Washington.

Two chambers instead of one is a machine, and the machine only works if the two chambers answer to different masters. The House answers to the people, divided by population, elected directly and often. The Senate, in the original design, answered to the states, two per state regardless of size, chosen by the state legislatures. Two distinct constituencies, each able to stop the other, so that a law had to satisfy both the people and the states before it could bind the country. That was the check. Today both chambers are elected by the same mass electorate. They are sliced differently, by district and by state, but they answer to the same principal, the national voter, which means the second chamber checks the first about as well as your right hand checks your left.

The deeper thing the seventeenth amendment broke was not a selection procedure. It was a whole axis of the division of power.

We are taught the checks and balances as a horizontal arrangement, legislature and executive and courts holding one another in place. But the founders built a second axis, a vertical one, between the federal government and the states, and that axis mattered just as much. The states were not meant to be administrative districts of Washington. They were meant to be rival governments, jealous of their own authority, and the mechanism that gave their jealousy teeth at the federal level was the Senate. A senator chosen by his state’s legislature, and removable by it, could not vote to strip the states of their powers and keep his seat. He represented a government with every reason to resist the growth of the one above it. That single arrangement put a permanent brake on federal centralization, staffed by the people with the strongest motive to apply it.

Cut the wire and the brake is gone. After 1913 a senator answered not to his state’s government but to the same electorate that chose the House, and increasingly to the same national donors and national media he needed to win. No particular reason to defend the prerogatives of his state against the federal government. Every reason to bring federal money home and take the credit for it. The states, having lost their voice in the chamber built to be theirs, slid into what they largely are now, field offices for federal programs, administering Washington’s mandates with Washington’s money on Washington’s conditions. The expansion of central power the right has spent a century lamenting did not happen by accident or by conspiracy. A great deal of it happened because we removed the one structural check designed to stop it, and we did it to ourselves, by amendment, in the name of reform.

Here is where the modern reader plants his feet, and the objection deserves a full answer, because it is the strongest one against the whole idea. Is this not simply less democratic? The answer is that the Senate was never meant to be democratic, and that making it so subtracted a check rather than adding representation. There is already a chamber for the direct voice of the people, and the last essay was about making it work again. The Senate’s job was always to represent a different thing, and a country needs both, the popular will and the structural counterweight, each with a real institutional home. Folding the two into a single popularly elected Congress gave the people the same power twice and took away the brake.

And the people are not silenced even so. They elect the state legislatures that would choose the senators, the same way they elect the officials who run a great deal else they never vote on directly. Indirect selection is not a failure of democracy. It is a feature of a republic, which the founders built on purpose, and the Senate was the most deliberate piece of that distinction.

The seventeenth amendment did not pass for no reason, and honesty requires meeting the reason. State legislative selection had produced real abuses: senate seats bought by the wealthy, legislatures deadlocked for months unable to fill a vacancy, the occasional naked sale of a seat. Those were real problems, and the amendment was sold as the cure. But the cure was wildly out of proportion to the disease. To stop the bribery of state legislators, we abolished the states’ representation altogether, which is like burning the house down to deal with a wasp’s nest in the eaves. The deadlocks could have been fixed with a procedure, a default appointment, a tie-breaking rule, the sort of provision the second draft includes for filling vacancies. The corruption could have been fixed with the ordinary tools used against corruption everywhere. Instead the whole structural function was thrown out, and the deepest irony is that it did not even end the corruption. It moved it. The money that once bought a state legislator now buys a national campaign, and the senator who once answered to a venal statehouse now answers to a national donor class no less venal and a great deal harder to see.

There is one more association to clear away, because it will be raised the instant the words states and federal appear in the same sentence. The phrase states’ rights carries a heavy and ugly history, the history of governments that invoked it to defend the indefensible. That history is real and should not be waved off. But the structural principle is not the same as its worst use, any more than free speech is discredited by the people who abuse it. Power, all power, needs a counterweight, and a central government with no rival beneath it is the most dangerous arrangement there is, no matter who holds it at the moment. That is the same point I argued in What Liberty Requires. The machine you build to impose your will is inherited by your enemy. A federal government with no structural check from the states works for whoever wins the next election, to do to the losing half whatever it likes. The states are a check not because they are good but because they are there, and a free people keeps its checks even when, especially when, it currently controls the thing being checked.

The rest follows the same spirit as the people’s house. Senators serve six-year terms, staggered so the chamber turns over gradually and keeps its footing, but no one serves more than three of them, so the seat never hardens into a fiefdom. The same upper age limit applies, for the same reason. The chamber’s role is the one the last essay described from the other side: it does not originate the laws, it revises and returns them. The people’s house proposes. The states’ house refines, checks, and consents. That is what bicameralism was for before we quietly turned it into one chamber wearing two hats.

Restoring the Senate to the states is the single change in this whole rewrite that would do the most to reverse the drift the first essay described, because it rebuilds an entire axis of the division of power that we removed and have spent a century missing without quite naming. It is also the change that will sound strangest to a modern ear, trained to hear democratic as a synonym for good and indirect as a synonym for corrupt. But the founders were building something more durable than a democracy. They were building a structure in which no single will, not even the will of a national majority, could run the whole table, and the states’ chamber was a load-bearing wall of that structure. We knocked it out in 1913 and have been propping up the ceiling ever since. The next essay turns to the powers the chamber wields once it is rebuilt, the purse and the sword the first draft gave to Congress and Congress has steadily handed away, and to where, in all of this, the commons settlement finally gets written into the document.