H.R. 1 Is the Pillow Over the Face of Federalism

I have never been in real quicksand, and you probably haven’t been, either. But many of us have the sense that our constitutional republic is sinking into a kind of political quagmire—what James Madison in Federalist 48 memorably called an “impetuous vortex.” 

When one part of the framer’s constitutional arrangement tried to exert “an overruling influence over the others,” Madison warned, no “parchment barriers” would be sufficient to keep it under control. Instead, the founders’ specific intention was for other parts of the system—including the people themselves—to assert their powers and prerogatives and restore a proper balance. 

Those reflections provide some context for understanding the Democrats’ audacious and nakedly partisan attempt at manipulating our electoral process—otherwise known as H.R.1, the “For the People Act.” This proposed legislation would secure the rights and freedoms of “the people” in much the same way the aliens in a classic “Twilight Zone” episode arrived on earth “to serve man.” 

Texas Attorney General Ken Paxton rightly notes the bill would “federalize state elections.” He observes that the founders, “intentionally excluded Congress and gave state legislatures the authority to run state elections . . . .  The Act opens elections in every state to widespread fraud, mixed messaging, Constitutional violations, and shuttering of speech.” 

I regret to inform Paxton—along with governors and other officials in many red states who object to the bill—that, in key respects, this fight was already lost more than 100 years ago, with the passage of the 17th Amendment. That amendment provided for the direct election of senators by popular vote, replacing the founders’ plan for having state legislatures choose members of the U.S. Senate. 

The Purposes of Federalism

The system prior to the direct election of senators certainly had its problems. Deadlocked state legislatures sometimes were unable to choose any candidate, leaving Senate seats vacant for months and even years at a time. And with a much smaller pool of electors to influence, corruption was hardly unknown. At the peak of the Gilded Age, with its unchecked industrial monopolies, one pundit wrote that “Standard Oil did everything to the Pennsylvania legislature except refine it.”  

Nevertheless, far more was lost than was gained by cutting the state governments out of the process altogether. It is not too much to say that direct election of senators—ratified in 1913—mortally wounded federalism. A century later, the constitutional power of the states wheezes along, alive in name only. H.R. 1, to a large degree, is just a pillow over the face of a terminally ill patient. 

The framers saw a “double advantage” in their scheme: favoring senators with judgment and experience (rather than mere popularity), while also giving the states some “agency in the formation of the federal government” that would strengthen their constitutional powers and authorities and “form a convenient link between the two systems.” 

They certainly were not trying to circumvent the voice and active participation of the people. The whole point of the United States, after all, rested on the hope that the “genius of the American people” would confirm “the capacity of mankind for self-government.” That is why the House of Representatives was specifically designed to be chosen by the broadest pool of voters allowed by law in each state. The Senate, however, served a different function, and was intended to operate by other mechanisms and promote other incentives. 

Federalism’s Unraveling

We have largely forgotten today why these institutional arrangements that channeled and filtered popular will were seen as important means for protecting the people’s liberties and their sovereignty. 

The framers specifically rejected the idea of pure democracy, or mob rule, that had characterized the city-states of ancient Greece, where no one’s freedoms were safe. It was precisely because the American founders wanted to ensure that government derived all of its legitimate powers from the consent of the governed that they looked for ways to “refine and enlarge the public views.” The indirect election of senators, along with the Electoral College and similar institutions, were meant to strengthen the sovereignty of the people by elevating their deliberative judgment over fleeting and momentary passions or fads.

At the same time, the founders regarded federalism—with important constitutional duties given to the state legislatures—as a democratic principle, since the states are closer and more accountable to the people than the central government in Washington, D.C. Representation, as the authority of the people to choose their political leaders (whether directly or indirectly) is a vital aspect of self-government. Yet, in the end, it is a means for securing the more fundamental idea of consent. In particular, federalism promotes good government devoted to securing the conditions for the people’s safety and happiness. 

Today, as Ralph Rossum points out

with the Senate no longer answerable to state legislatures, it has felt increasingly free to join the House in legislating on every social, economic, or political problem which it perceives as confronting the nation, even if the resulting measures are little more than blank checks of authority to the executive branch and the federal bureaucracy.

(Rossum’s book on this topic is well worth reading.) In that vein, consider how differently our politics might operate today without the 17th Amendment. Instead of the unseemly groveling from the states, objecting to H.R.1, state legislatures could be instructing the Senate to reject this absurd legislation. 

While the 17th Amendment was being debated in 1912, one its most forceful critics was a senator from New York named Elihu Root. A highly respected and accomplished statesman in his time, Root is largely forgotten today. In a moving speech a few years later, titled “Lincoln as a Leader of Men,” the senator reminded his fellow Americans that in a constitutional republic the obligations of self-government are demanded of all the citizens. 

“It will be useful to remember,” Root said, “that Abraham Lincoln was a politician.” Then, as now, however, the word politician was in bad repute. But as Root explained: 

Politics is the practical exercise of the art of self-government, and somebody must attend to it if we are to have self-government; somebody must study it, and learn the art, and exercise patience and sympathy and skill to bring the multitude of opinions and wishes of self-governing people into such order that some prevailing opinion may be expressed and peaceably accepted. Otherwise, confusion will result either in dictatorship or anarchy. 

The principal ground of reproach against any American citizen should be that he is not a politician. Everyone ought to be, as Lincoln was.

Recovering a vigorous federalism is only part of the larger project of recovering our liberty. And that will only happen if patriotic Americans become “politicians” in the sense that Root, and Lincoln, and the founding fathers expected, or hoped, might be possible.

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