Have I mentioned how thankful I am for Stephen L. Hall’s contributions to this sight?
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There exists within the construct of the architecture of the Constitution a number of political structures which were built into the operations of our federal government, some which were copied from the state governments, designed specifically to prevent the accumulation and concentration of power in the hands of a few people, which would certainly be a temptation for corruption.
Most everyone who has passed an eighth grade civics class are aware of the concept of the Constitutional expression of the “Separation of Power” dividing government into judicial, legislative, as well as executive parts. Separating the functions of making the laws, from enforcing the laws, or adjudicating or applying the laws.
Separating the enforcement of the laws from the making of those laws; the idea being to make those laws more objective and less self-serving. Separating the enforcement of the laws from the adjudication of those laws; the idea being to decrease the inclination of favoritism in the law towards the enforcers. Separating the making of the laws from the adjudication of those laws; the idea being to keep the laws from being arbitrary.
However, in addition to the “separation of power” there is also embedded in the Constitution a “balance of power” which is often confused and seldom properly explained to a sufficient clarity. It is easy to think of the different branches of government as balancing each other, joining together to rein in any branch which might assume too large a role while jealously guarding their own powers. Part of the confusion comes from the often cited phrase regarding the Constitution having “checks and balances”.
In particular, the “Balance of Power” refers to something entirely different, but is intimately related to the recent discussion of the structure of the Electoral College and the very structure of Congress itself. It is also oddly related to the concept of “rights” which have been discussed within the pages of this blog.
The “Balance of Power” refers to the balancing of political power between different levels of government, whereas the “Separation of Power” refers to the division of power within the same level of government. Just like the “separation of power”, the “balance of power” is divided amongst three different entities, though less explicit in the language of the Constitution.
Power in the United States was designed to be divided between the federal government and the state governments. That everyone knows. But most people are oblivious to the designation of the citizenry, the individuals collectively, as the third entity sharing in sovereign power. The “Balance of Power” refers to the designated fields of authority of the federal, the state, and the citizenry, who are to keep the other levels of authority in check and jealously guard their power.
The Constitution came about as the result of two different, then recent, political dysfunctions. The Founding Fathers had fought a revolution from a strong authoritarian central power, represented in the King of England; but they had also suffered under the chaotic eleven years following their independence with a very weak central government under the Articles of Confederation. The very first political party divisions in our country was between the Federalists, who wanted a stronger federal government, and the Democrat-Republicans, who wanted greater assertion of state sovereignty.
“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.” Tenth Amendment, US Constitution.
In this Amendment, clearly calls out the three levels of power in the “balance of power”, the United States, the states, and the people, and designates that they each have “powers”. While the nature of these respective powers are an interesting topic in and of themselves, that is not the topic of today.
This “balance of power” was also instrumental in the very structure of Congress. The House of Representatives was created to indirectly represent the people, the citizenry; it is the most democratic of all the institutions of federal government contemplated by the founding fathers. The Senate, in contrast, was appointed by the legislatures of the several states; they were the voice and representation of the state governments on the federal level.
The House exists to keep the federal government from invading the powers of the citizenry. The Senate exists to keep the federal government from invading the powers of the states. It is this very representation in Congress which was designed to check the growth of the power of the federal government.
“The Senate of the United States shall be composed of two Senators from each state, elected by the people thereof . . . .” Seventeenth Amendment, US Constitution. The Seventeenth Amendment changed the election of the Senators, moving it from the state legislatures to election by the popular vote of the people.
The Senate no longer represents the interests of the states in an equal fashion, but the interests of the citizenry in a disproportionate fashion. But the disproportionate representation of the people of small states is not the real problem.
Senators, being voted in by popularity, now work for the people as their representatives rather than working for the states as their representatives. The Senate can no longer check the growth and expansion of the federal government into state areas of power and state concern. Since the passage of the 17th Amendment, the federal government has grown substantially, not merely in size but in scope. Before the passage of the 17th Amendment, federal, state, and local taxes combined were less than 1/3 the amount of federal taxes alone now. Employment, crime, welfare, and education were previously exclusive areas of state control which have all become preempted to a large extent by federal expansion.
When I and others call for the repeal of the 17th Amendment, it is to restore the “Balance of Power” to our republic, to restore that check to federal centralized power which was the founding fathers’ original intent.
