The Founders understood threats to liberty inherent in giving one group too much say in forming the national government.
Imbedded Constitutional mechanisms pitted different constituencies against each other to limit their power. Our Constitution horizontally separates legislative, judicial, and executive authority to limit Congressional power, but it also limits overall national government power through federalism.
VERTICAL POWER DISTRIBUTION
There are three forms: unitary, confederation, and federation.
Unitary governments have a supreme central government that controls and delegates power to lower subdivisions. Obvious examples are monarchies and dictatorships, but our state governments are also unitary. Power flows from the top down.
In confederations, subdivisions voluntarily join together and retain substantial independence. Central powers are typically weak, and unanimity is required to engage the confederation. Constitution changes or binding agreements are like treaties. Resulting United States weakness under the Articles of Confederation led to the Constitutional Convention. Power flows from the bottom up.
Federations have shared sovereignty. Power is delegated from subdivisions to the central government. No central or Constitutional changes are made without majority agreement among subdivisions. Federations have involuntary components, such as majority adoption and total binding of our Constitution and amendments, or legitimate legislation affecting the minority without their consent.
In our Constitution, various clauses grant and protect states' powers: election authority, the militia, the electoral college, Article IV (Full faith and credit), 9th and 10th Amendments, and Article V (Amendment by Convention). These soft federalism barriers are subject to interpretation and are on their own nearly powerless to prevent accumulation of national power. The Founders understood pen-and-ink limitations. That is why our Constitution pits constituencies against each other‚Äîthe President is elected by Electors, the national Judiciary is approved by Senators, and Representatives are elected by districted voters‚Äîand formerly contained hard federalism mechanisms giving states direct input and control. The key to this hard federalism was the original Senate.
THE ORIGINAL SENATE: CORNERSTONE OF FEDERALISM
James Madison and Edmund Randolph final draft proposal of the Virginia Plan defined the hard federalism framework:
4. Resolved. That the members of the second Branch of the national Legislature ought to be chosen by the individual Legislatures.
Although Senate composition and term lengths were changed by the Connecticut Compromise, the indirect method of selecting Senators was unchanged:
The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof for six Years
U. S. Constitution, Article I, Section 3 (original)
The original Senate bound state and national governments. Making Senators beholden to legislatures, not to the electorate, ensured state perspectives and interests would be voiced in national government formation, legislation, and control. Alexander Hamilton considered the reasoning for the original method of selecting Senators to be practically self-evident:
Among the various modes which might have been devised for constituting this branch of the government, that which has been proposed by the convention is probably the most congenial with the public opinion. It is recommended by the double advantage of favoring a select appointment, and of giving to the State governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems. Federalist #62
The proposed Constitution, so far from implying an abolition of the State governments, makes them constituent parts of the national sovereignty, by allowing them a direct representation in the Senate, and leaves in their possession certain exclusive and very important portions of sovereign power. This fully corresponds, in every rational import of the terms, with the idea of a federal government. Federalist #9
State sovereignty and preservation were reinforced by the Senate composition:
the equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty. So far the equality ought to be no less acceptable to the large than to the small States; since they are not less solicitous to guard, by every possible expedient, against an improper consolidation of the States into one simple republic. Federalist #62
Hard federalism checked national power in everything touched by the Senate: trying impeachments, ratifying treaties, approving judges and Presidential nominees, and providing state perspective on legislation. It promoted Congress-limiting bicameral compromise and reinforced written restraints on national power such as the 9th and 10th Amendments. It preserved state sovereignty by limiting power natural upward percolation by those who seek to wield it over the largest number of people. It prevented accumulation of power by the national government, the most dangerous threat to our liberty‚Äîa state government can only enslave a state, but the national government can enslave a nation.
Reprinted with permission. Originally published in May 2011 issue of The Patriot Today.