[mfigaro]

Why didn’t the framers provide for institutions to preserve the original meaning of the Constitution so that it would be less likely to be corrupted outside of the amendment process? Are there any hypothetical institutions which you have thought of that would help? Does history contain any examples of such institutions for any other government? Perhaps some kind of analogy to the Church councils? Have there been any proposals for such institutions in the U.S.? Did the framers believe that the three branches jealously guarding their own powers would be sufficient? Did they not conceive that all three branches could become dominated by one or two factions(parties)? Did they simply assume that there were certain boundaries on human nature such that todays corruptions would never be conceived by man?

[gutzmank]

The chief distortion in the federal system now is that there is essentially no check on the Federal Government’s tendency to arrogate the states’ reserved authority. This is not the fault of the Constitution’s authors and ratifiers, but of the people who adopted the 17th Amendment in 1913.

Besides that, it was thought that requiring officials to take an oath to uphold the Constitution would restrain them. In those days, oaths’ religious significance was taken far, far more seriously. For more on the religious scruples of the Founding Fathers, I highly recommend Mark David Hall’s recent biography of Roger Sherman, which I reviewed very positively for an upcoming issue of The American Conservative.

No, people did not foresee the advent of a two-party system. They responded to it with the 12th Amendment, but of course merely averting another Electoral College tie for president in the wake of the election of 1800 did not solve the entire issue: the impeachment power, for example, is essentially useless as a means of Congress policing the other branches’ adherence to the Constitution now that we have parties.

I have proposed an Article V Convention to amend the Constitution as a means of restoring the federal principle. One mechanism to serve the purpose of the old means of electing senators would be empowering a majority of state legislatures to counteract federal courts’ constitutional decisions–not in the case at hand, but as a matter of precedent. Another would be an imitation of the Council of Censors established by the Pennsylvania Constitution of 1776, this time again made up of state legislators.

The underlying problem, of course, is the extension of the suffrage, which drastically reduced the educational level of the electorate. I cannot imagine any way of counteracting that development.

[porphyrogenitus]

“The underlying problem, of course, is the extension of the suffrage, which drastically reduced the educational level of the electorate. I cannot imagine any way of counteracting that development.”

Strict separation of education and state (something John Stewart Mill proposed but which his left-oriented successors conveniently forgot) would help here, but probably only on the margins.

“I have proposed an Article V Convention to amend the Constitution as a means of restoring the federal principle.”

Your idea is a good idea but why not just repeal the 17th Amendment? Is it a matter of strategic considerations (now that people have gotten used to electing Senators and considering theirs stand-up guys and everyone elses useless timeserving windbags, they won’t want to give up direct election of these Life Senators, so the best available strategy to restore some sort of Federalism is to add this feature)?

Aside from the Court decision aspect though I think one major problem is Federal money; as long as so much money goes to the Federal Government and then is cycled back to the States, the latter are in effect paid off to toe the line (Progressives actually *love* machine politics – at a wholesale, national level; that’s the only reason they hated the local political machines – like any firm of the era, they wanted to stamp out their smaller competitors).

[gutzmank]

I think repeal of the 17th Amendment is impossible, but other changes to restore states’ supervisory role can be imagined, and indeed I’ve proposed some.

[mfigaro]

Where can I find Dr. Gutzman’s proposals for restoring the states’ supervisory role?

[gutzmank]

A federalism amendment should correct the incursions on state authority of both the federal legislature and the federal judiciary. With that in mind, I think that it ought ideally to have the following components:

1) Make clear that the Interstate Commerce Clause of Article I, Section 8 empowers Congress only to regulate COMMERCE that is INTERSTATE (as the Supreme Court recognized before 1937);

2) Empower individual taxpayers and state governments to bring suit for injunctive relief in case Congress exceeds the bounds of its powers, as clarified by this amendment (lawyers call this giving individuals and states standing to sue for injunctive relief) and declare that these questions are justiciable (not “political questions” that the federal courts should dodge);

3) Make clear that the Due Process Clause of the Fourteenth Amendment is about nothing other than Due Process in judicial proceedings — that is, that it doesn’t give federal courts power to invent rights unknown to the ratifiers and does not make the federal Bill of Rights enforceable by federal judges against the states;

4) Repeal the 17th Amendment *and* give the state legislatures the power of recall over US senators (and thus give state legislatures a check on Congress’s tendency to usurp state legislative authority);

5) Require a balanced federal budget except in time of war declared by Congress;

6) Empower state legislatures to overturn federal judges’ constitutional decisions. This could be done by saying that if 2/3 of legislatures vote to do so, it is done, or in some other way.

Of course, which of these would be advocated is a political decision. The ones that are absolutely essential are #1 (which would go far to rein in Congress’s claim of power to legislate in regard to any question that comes to mind), #2 (which would make #1 judicially enforceable, and without which #1 would have no force), and #3 (which would eliminate the federal courts’
chief justification for the wide-ranging legislative authority they now exercise).

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