Academic journal article Northwestern University Law Review

Ulysses at the Mast: Democracy, Federalism, and the Sirens' Song of the Seventeenth Amendment

Academic journal article Northwestern University Law Review

Ulysses at the Mast: Democracy, Federalism, and the Sirens' Song of the Seventeenth Amendment

Article excerpt

Jay S. Bybee*

Whoever, unaware, comes close and hears the Sirens' [lucid song] will nevermore draw near... his home .... But if you wish to listen to their song, just stand erect before the mast and . . . tie fast your hands and feet .... But ... if you plead with [your crew] to loose those bonds, they must add still more ropes and knots.1

I. INTRODUCTION

One of the most remarkable aspects of the Constitution is the manner in which it marbles together people and states. The Constitution begins with the words "We the People of the United States"2 and ends with requirements for state ratification and the signatures of its authors.3 In between, the Constitution alternately protects or subjects to national control people and states.4 While "American federalism allowed the federal government to do almost all its business directly with persons,"5 the states remained "constituent and essential parts of the federal Government."6

By ratifying the Constitution, the states agreed to cede a portion of their sovereignty to a new entity, the "United States." The states granted to Congress their collective powers to impose taxes,7 incur debt,8 issue coin and securities,9 regulate commerce among the states and with other sovereigns,10 and control the engines of war.11 The states further relinquished their rights to act as independent sovereigns and enter into treaties with foreign countries, coin money, grant titles of nobility, and wage war.12 The states gave up their powers to lay duties on the goods of other states,13 to treat citizens of other states as aliens who lack the privileges and immunities of their own citizens,14 and to regard the public acts of other states as those of foreign powers.15 As to those powers vested in Congress and deprived the states, Congress's authority was complete over people and states.

Nevertheless, Congress did not acquire the plenary powers of a national government. Madison noted that if "the Government [is] national with regard to the operation of its powers, it changes its aspect again when we contemplate it in relation to the extent of its powers."16 The states reserved authority over their criminal laws,17 particularly the power to issue or not the Writ of Habeas Corpus.18 The Constitution also made clear that states might maintain a separate militia19 and provide their own rules regarding religious freedom, speech, and press.20 States retained a right to territorial integrity against efforts to divide or combine states21 and the right not to be deprived of equal representation in the Senate without the state's consent.22 To these enumerated reservations, the Constitution added that powers not delegated to the United States, nor prohibited to the states, were reserved to the states and the people.23

Nowhere is the interrelationship between the people who ordained and established the United States and the states who ratified it more evident than in the election of the President and the composition of Congress. The President and Vice President are selected by the electors who meet following popular election. By tradition, a state's electors-equal to the total of its senators and representatives in Congress-vote for the candidate who received the largest number of votes in the state.24 The voting for President is accomplished by states. This arrangement combined both democracy and federalism, without subordinating one to the other.25

This same pattern replicated in the structure of Congress. As James Madison described it:

The house of representatives will derive its powers from the people of America, and the people will be represented in the same proportion, and on the same principle, as they are in the Legislature of a particular State. So far the Government is national not federal. The Senate on the other hand will derive its powers from the States, as political and co-equal societies; and these will be represented on the principle of equality in the Senate, as they now are in the existing Congress. …

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