By John F. Di Leo -
In the first week of April, 2017, a nostalgic nation watched as one of the grand old institutions crumbled into dust: the Senate filibuster was removed from the toolbox for presidential appointments.
Many on both sides of the aisle shed a tear or two as the US Senate lost one of its most famous and romantic tools; until the Democrats overplayed their hand on the Gorsuch nomination, a single Senator could hold up a presidential appointee with a filibuster. No more.
Before you shed any more tears, though, dear Gentle Reader, please consider who had long been empowered with this tool. Have you thought about asking whether or not these Senators deserved it in the first place?
I believe that a great deal of our political trouble today is caused by a fundamental misunderstanding of the nature of our government – not just in what the government is for, but in how the Constitution designed it to function … how much thought the Framers put into its careful design.
They were frustrated by the failures of the Articles of Confederation, and recognized that no mere amendment would do; we needed a new Constitution to obtain public support, and to both set up a national government and simultaneously rein it in, to both provide for the prosperity and security of the American people and to fully protect our liberties. A difficult task.
Read the notes taken at the convention, by Robert Yates, James Madison and others – or read the fascinating books about it, such as David O Stewart’s “The Summer of 1787” – and consider the contributions of Madison, James Wilson, Gouverneur Morris, Roger Sherman, Rufus King, and in particular, General Washington, whom the delegates’ elected as their presiding officer.
The Founding Fathers – and most specifically the Framers (the men who participated in the Constitutional Convention of 1787) – understood that a national government is a necessary evil, and wanted that government to be successful, and effective, in its proper functions.
But they also knew that a national government would want to expand… that both elected officials and bureaucratic appointees would try to expand their influence – for good, of course, always for good – and they knew that each such expansion would pose a greater threat to the people's freedom.
So today, in studying our government and its perks and rules, we need to recognize how the people in the national government were meant to be selected, and recognize that it was a very deliberate selection process. The Framers didn’t just throw the dice and say “okay, we’ll pick the Senate this way and the House that way.” It was deliberate.
One house of the legislature would be known as the people’s house. In a nation quite intentionally designed without referenda, this would be the closest thing to “democracy” the new system would allow. The House of Representatives would be picked directly by the voters, every two years, so there would always be a representation in our nation’s capitol of the public’s most recent will.
By contrast, the executive – the President – would be selected by an “Electoral College” – a group of wise people, perhaps statesmen, perhaps just local worthies, elected by the voters. Through the Electoral College, the public could appoint thoughtful people who could be trusted to choose well. Their sole duty would be their vote for President, so they would presumably give it everything they had. Again, this is close to democracy, but not directly; the public chooses middlemen to gather and deliberate on their behalf. The Framers were certain that people make more intelligent decisions when deliberating in a group than when simply walking into a voting booth, checking a box, and departing.
Finally, we have the US Senate. The public would not select them at all.
The way the Framers set up our country, this was up to the states; each state government had two seats to fill in the US Senate, and it was up to them how the state legislatures select them. Perhaps the governor would submit names for consideration? Perhaps the state house would send several nominations to the state senate for a final run-off? Their choice.
Why? To empower the state governments … in Washington.
Many of the Framers rightly worried that eliminating the Articles of Confederation would leave the state governments powerless in the new nation’s capital. Some for noble reasons, others jealous for power, most wanted to ensure that the state governments – not just the people in those states, but their experienced, thoughtful representatives – still had the power to rein in the new national government if it ever went too far.
Most of the Framers therefore knew that the Senate was the most important piece of this process, the lynchpin of the whole deal, specifically because the Senate was chosen by the state governments.
These US Senators would jealously guard the rights of the people and the states, because they would understand, better than anyone else, that any expansion of the national government in Washington would – by definition – be an incursion upon the state authority and individual freedoms that the Senators are there to protect.
The Guard Towers
Please think of the federal government in Washington DC as a prison complex, and of the Constitution as the wall surrounding that prison. The Constitution has limits – each body can do this, and only this… each body is limited in what it’s allowed to tax, to regulate, to attempt… and anything outside these limits is forbidden to those within the government. It’s a wall ten or twenty feet high, with barbed wire on top.
All the people inside this prison complex – both the elected officials and the bureaucrats – would naturally want to break through that wall and expand their powers, right? Of course they would.
Every newly created agency, every new law, every new program that the regulators enforce, is going to be an expansion beyond that original wall, enlarging the national government, enlarging the scope of Washington DC. You can picture sections of wall being opened up, all the time, pushing it out 20 feet to the north, then 50 feet to the southwest, then another 100 feet to the east… as the inmates constantly and naturally try to expand their areas of influence.
And that’s what the Framers were worried about. They pictured this tiny national capital city, to be designed so cleverly by Pierre Charles L’Enfant a few years later, gradually expanding until it became the massive leviathan that they so terribly feared. They didn’t want to risk their handiwork enabling the very monster of an encroaching government that they’d just fought a revolution against!
So now we come to the U.S. Senate.
Remember, the voters directly sent Congressmen to the nation’s capital to do stuff for them, or to get stuff for them, stuff that might lead to enlarging the government, breaking through the walls that the Constitution had erected. Similarly, they sent a President there after a huge national election, hoping that he would do stuff for them, and get stuff for them, as well. Hopefully – from the perspective of this “small d” democratic population, the House and President will work together to make sure it happens, and the gravy train flows smoothly!
Where do the Senators fit in this picture? They're the prison guards, sharpshooters in teams of two per state, posted very indirectly by the American people through their state governments, in the guard towers all along the prison wall. First thirteen, then fifteen, then on and on until we now have fifty such guard towers encircling the nation’s capital.
The job of the U.S. Senate is to constantly be on the lookout for bad appointments to the judiciary, and for bad laws being proposed in the House, and bad new agencies or regulations being proposed by the newspapers or the lobbyists, bad cabinet secretaries being proposed by the President.
The U.S. Senate is there to watch out for anyone or anything that would enlarge the scope of the national government beyond its proper, constitutional scale.
The job of the U.S. Senate is to stand at the ready, with binoculars and night vision goggles, rifles cocked and ready at their sides, and watch for such encroachments… and then to stop them.
The Constitution gave the Senate several tools for this task – the impeachment process, the "advise and consent" process, the legislative process, etc.
The Senate's job is to identify encroachments, and stop them.
So to return to our prison metaphor, the Senators are the guards, very carefully selected and posted by the 50 states in these guard towers metaphorically surrounding Washington DC. They were given wonderful tools – the impeachment process, the security of six-year terms, the filibuster, and so many more – to use in the service of this one goal: keeping the leviathan at bay.
Their job was to watch closely, and whenever they see anyone trying to break out of these Constitutional limits and expand the walls – trying to expand the power of the national government – the Senators were supposed to shoot them down.
And it worked pretty darned well, for over 120 years, too.
The Errors of (and leading up to) 1913
Unfortunately, some of the states never fully understood this process – never fully understood how carefully and thoughtfully the Framers had been looking out for their interests. So by the late 1800s, some of the states had a reputation for chicanery in their selection of Senators, and some others were giving in to the populist effort to let the public have control of this house too… and finally, in 1913, the 17th amendment was passed, mandating direct election of US Senators.
This one colossal error removed the state governments' one and only institutional check on the federal government, essentially just turning the Senators into stuffier, more powerful, just-as-democratic Congressmen, but with six-year-terms.
In other words, the prison guards now serve the prisoners… unite with the prisoners… join the prisoners at the feast.
They're on the same side as the people they were supposed to be guarding us from.
Now that it's all changed, do today's Senators really still deserve all the perks and tools that the Senators had when they served their state governments in their original cause?
Well, if you ever wondered why the walls have all collapsed and the federal government can now rule the entire country, with nothing holding them back… now you know.
Many accuse the Constitution of failing, because the national government is now enormous, but that’s not fair. When the Constitution was in place, from 1788 through 1913, it did a pretty good job of keeping the national government small, by using the self-interest of the state governments as a wonderfully, brilliantly effective permanent check on the federal government.
Until 1913, when we ratified the 17th amendment, and the states totally destroyed the country.
The lesson of the day is to never allow the inmates to appoint the guards on the prison walls.
Our current socialist, omnipresent national government isn't the fault of the Constitution at all, it's the fault of the conscious destruction of the Constitution's brilliant plan in 1913.
Copyright 2017 John F. Di Leo
John F. Di Leo is a Chicagoland-based trade compliance trainer, actor and writer, who has actually never been to a penitentiary, either as a prisoner or an inmate. His columns are regularly found in Illinois Review.
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