90 Miles From Tyranny : H.R. 1 Is the Pillow Over the Face of Federalism

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Saturday, April 17, 2021

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

The constitutional power of the states wheezes along, alive in name only, a century after the 17th Amendment. H.R. 1, to a large degree, is just a means to euthanize a terminally ill patient.

Ihave 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...

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