The Forgotten Bargain that Made America

How did we Americans get ourselves into the mess we are now in?

It's a complicated story.  It started when the American people broke a bargain honorably made.  And not just any bargain.  The bargain that was broken was the founding bargain, the bargain that made America.

George Washington's original Cabinet defines that founding bargain for us.  It is a truism that Washington's Cabinet was the greatest one America has ever had.  Washington had Jefferson at State, Alexander Hamilton at Treasury, Henry Knox at the War Department, and Edmund Randolph as the attorney general.

But instead of focusing on this dazzling array of excellence, let's consider what the brevity of that list tells us about the founding bargain.  The federal government was designed to be limited government.  Madison wrote in The Federalist, "The powers delegated by the proposed Constitution to the federal government are few and defined."  Those few and defined powers are made perfectly clear by the offices these great men occupied.  The federal government was to take responsibility for America's relations with foreign states — in Madison's words, "war, peace, negotiation, and foreign commerce."  The federal government was also to take responsibility for commerce among the American states to provide a nationwide free market that would make possible America's world-changing economic success.  All other governmental powers were to be retained by the individual states that were joining to form the new nation, the United States of America.

Why should the American sovereign, the American people, agree to a bargain in which their state gave up its power to make war and to negotiate treaties with foreign states and other American states?  The Founders' argument was that America would be safer and better represented in the world by a federal government than by many individual states operating independently and perhaps at cross purposes.  Besides, the state governments would not be giving up control of those powers.  They would retain control of them by means of the Senate.  According to the founding bargain, senators would be chosen by the state legislatures — and the Senate would control the powers delegated to the federal government.  That is why the Constitution assigns to the Senate power over treaties, over the declaration of war, even over the people the president selects for the Cabinet offices.

But in 1913, the American people broke that bargain — and set in motion the ongoing process of overthrowing the Constitution — which is the source of the mess we find ourselves in today. 

Americans in 1913 showed they had forgotten the purpose of the Framers' design for the Senate.  The people were tricked by the Progressives who presented the change as a needed "reform," but they could be fooled in this way only because of their forgetting.

The 17th Amendment was perhaps the single change that did the most to undo what the Founders had accomplished by means of the Constitution.  It provided for the direct election of senators, the system we have now.   The Founders, men of honor, would certainly have opposed breaking a bargain so honorably and deliberately made.  And they would also have understood that the change would throw the system completely out of balance, as it in fact has done. 

The consequences of this change to America's constitutional order have been many and profound.  Probably the most obvious has been the inevitable erosion of the independence of the states and of their ability to counter-balance federal power.  The Senate was once a barrier to the passage of federal laws infringing on the powers reserved to state governments, but the Senate has abandoned that responsibility under the incentives of the new system of election.  Because the state governments no longer have a powerful standing body representing their interests within the federal government, the power of the federal government has rapidly grown at the expense of the states. 

The powers retained by the states in the original bargain are now usurped by the federal government whenever it decides to and wherever it turns its baleful gaze.

The Founders would say we no longer have a federal system, that the 17th Amendment in effect overthrew the 10th ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people").

The 10th Amendment has become a dead letter.  American political leaders (I'm looking at you, LBJ and Nancy "are you kidding?" Pelosi) now consider the powers of the federal government virtually unlimited, certainly not limited by the Constitution, and not even limited by America's ability to fund their exactions.   

Madison and the other Founders put much emphasis on the importance of the independence of the states for the preservation of Americans' liberty.  Lord Acton, the great scholar of the history of liberty, agreed with them: "Federalism: It is coordination instead of subordination; association instead of hierarchical order; independent forces curbing each other; balance, therefore, liberty."

Direct election of U.S. senators undermined this critically important protection of liberty.  The erosion of Americans' individual liberty that has resulted is no doubt the most important consequence of the change. 

Tragically, because of our forgetting, we may be on the verge of making another mistake like the one Americans made in 1913.  There is a powerful movement afoot to get rid of the Electoral College, an essential constitutional safeguard of American liberty. 

Each state is allotted as many electoral votes as it has senators and members of the House of Representatives.  That means that to become president of the United States, a candidate must win election state by state.  The direct election of members of the House, the selection of senators by the state legislatures, and the selection of the president by the voters state by state was the original bargain.  Eliminating the Electoral College and electing the president by direct vote, as the progressives are determined to do, would transform the office.  Its occupant would in effect become the president of the big cities of America, and the last vestiges of autonomy guaranteed the individual states by the Constitution's electoral system in the original bargain would be swept away.

Robert Curry serves on the Board of Directors of the Claremont Institute.  He is the author of Common Sense Nation: Unlocking the Forgotten Power of the American Idea, and Reclaiming Common Sense: Finding Truth in a Post-Truth World, due out in September.  Both are from Encounter Books.

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