Senate Republicans invoking the nuclear option and requiring a simple majority for the approval of Supreme Court nominees has engendered a great deal of hysterical handwringing. Indeed, the terminology seems to demand such an overly dramatic response. The histrionics gets one point correct: the integrity of the Senate as a body has been utterly destroyed. However, it was not Republicans (who in fact were simply expanding a precedent Harry Reid set in 2013) who bear responsibility for compromising the Senate.
That dubious honor goes to those who, in 1913, passed the 17th Amendment to the Constitution and changed the method by which Senators were appointed from selection by state legislatures to popular election, thus effectively stifling the voice of the states in the government and irrevocably destroying America’s confederate government.
Common wisdom holds that the people’s voice is fundamental to fairness and justice in a democracy. But America was not conceived as a democracy, but as a republic. And the federal government was not conceived of as national, but as a confederation.
This linguistic difference, which is often dismissed as nothing more than the pedantic quibbling of wonks, is actually quite significant as it makes the role of the states in the federal government of crucial importance.
As Alexander Hamilton explained in Federalist 9:
“The definition of a CONFEDERATE REPUBLIC seems simply to be “an assemblage of societies,” or an association of two or more states into one state. The extent, modifications, and objects of the federal authority are mere matters of discretion. So long as the separate organization of the members be not abolished; so long as it exists, by a constitutional necessity, for local purposes; though it should be in perfect subordination to the general authority of the union, it would still be, in fact and in theory, an association of states, or a confederacy. 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.”
The state governments are “constituent parts of the national sovereignty,” meaning their voice should be heard in all matters of public policy upon which Congress has the authority to act. Hence why Senators were appointed by state legislators; they represented the interests of the states, not the people within them; that was the purpose of the House of Representatives. This is also the reason all states have 2 Senators—it represents the absolute parity which states have as constituent members of the American union. The people’s voice is weighted by population within their states, as this influences the amount they take and contribute in terms of resources to the union.
Nationalism implies a unanimity of will, a group of people rallying around a single point as if they were one entity. Confederation respects that, though there may be group consensus, each actor who is part of a body retains their autonomy. Too often since the passage of the 17th Amendment, federal politics has been conceived of in terms of nationalism. Policy is sold on the rhetoric that it brings the same degree of good to all within the body politic, regardless of state and local differences which inform very different lifestyles. This trend has arisen to the detriment of the country, as it has caused elected officials to have an increasingly myopic view of the polity. Rather than revel in the breadth of ideologies and lifestyles which can coexist in a republican system such as the Founders created, politicians think only of dominant modes of thinking, seeing these as the path towards a victory of legislation which is all too frequently accompanied with greater power. This imbues the “majority” with a sense of moral authority which, in reality, it should not have. The morality of American politics lies in the vying of different ideas for supremacy on their merits.
The abandonment of this latter mode of politics is a direct result of the winnowing of the polity, to the exclusion of the voices of states. The abolition of the selection of Senators by state legislators not only neutered the rights of states as constituents of the federal government but neutered their ability to even have a voice in the national dialogue as well. The invoking of the nuclear option betrays not the Senate going off the rails, but the damage that was done to the proper functioning of American federalism by the passage of the 17th Amendment.
Also published on Medium.