Are you black, or a woman? If so, you can't cast a vote for your U.S. senator. But that's OK. No one else can, either.
Such was the state of affairs from 1787 to 1913. Few Americans today know that for the first 126 years of the nations existence, United States senators were not popularly elected. Rather, they were appointed or elected by every states legislature. The U.S. Senate was intended to be a quasi-aristocratic check on the much more directly democratic U.S. House of Representatives, whose members were popularly elected.
Some 60 students and other guests were reminded of this Monday afternoon by a guest lecture delivered at Florida State University College of Law by economics professor Randall G. Holcombe, a nationally recognized expert on public finance and the economic impact of public policy.
The talk was hosted by the FSU Law chapter of the Federalist Society for Law and Public Policy Studies, the nations premier fellowship of conservative and libertarian lawyers and law students, and was titled, Elections Didn't Used to Be Like This: From Liberty to Democracy.
We were interested in presenting the design of elections under the Constitution when it was adopted, Alex Boler, president of the chapter, told Sunshine State News. This is not frequently taught in college classrooms, and that includes law school classrooms. In light of Tuesdays elections, we thought it would be timely to hear Dr. Holcombes perspective.
In many ways a 40-minute distillation of a book he wrote on the subject 10 years ago, Holcombes lecture described the history of changes in the way the United States selects its federal statesmen and the ideological shifts that have driven those changes.
Holcombe pointed out that the original intention of the framers of the Constitution was that the federal government would be only one-sixth democratic --i.e., only one-half of one-third of the branches of government would be democratically elected: the U.S. House of Representatives. The Senate, as we have seen, would be appointed by state legislators, the Electoral College would select the president, and the federal judiciary was appointed by the president and confirmed by the Senate.
When the country was formed, when the Constitution was originally written, the idea behind it was to protect the liberty of individuals, Holcombe told Sunshine State News after the lecture. But over the decades and centuries, the fundamental principle behind American government has shifted, from protecting our liberty, to democracy, [the notion] that government ought to do whatever the majority wants it to.
Since the Progressive Era (the 1890s to the 1920s), Holcombe says, what that majority has wanted is for the government to provide for every Americans needs, no matter what the cost to individual rights and liberties. The ratification of the 17th Amendment in 1913 which provided for the direct popular election of U.S. senators was a major victory of this tendency, one which Holcombe said has not been good for the national well-being.
I think we would be better off if the Senate were chosen by the state legislatures today, as it was until 1913, he tells the News. The previous system placed a higher bar in front of legislation; it had to meet with wider approval because two different groups had to approve it, one representing the people and the other representing state governments. It also helped to preserve the powers of the states to a greater degree. When the country was formed it was a federation of states. Now itd be hard to see it that way. Clearly, the federal government today sits on top of the states.
Both during his lecture and in his interview with the News, Holcombe brought up the 2010 Patient Protection and Affordable Care Act Obamacare that likely would never have seen the light of day if legislators accountable to state governments had to approve it.
Its likely that Obamacare would have a harder time passing the Senate if the senators were still the representatives of the state governments, because one thing Obamacare does is place a greater cost burden on the states through expansion of Medicaid, he said, suggesting that state legislators are often more sensitive than the general population to the fiscal and other impacts of proposed federal legislation.
As for the Electoral College, the Constitution has never specified by what method the states are to appoint electors, though by the 1820s most states had opted for their popular election; today, every state has done so. (When voters today select a presidential nominees name on a ballot, they are really voting for electors appointed by that nominees campaign, not for the nominee himself.)
The founders thought that, typically, no one would get an electoral vote majority, Holcombe told the News. What they thought was that most electors would choose a favorite son from their state, so the vote would be very widely spread. Electors must vote for two candidates [one president and one vice president], and at least one of them must be from another state [than the electors]. As it turned out, until 1824 [and in every presidential election since 1828], all candidates got electoral majorities.
Holcombe says he thinks the system presently in place works pretty well when it comes to selecting presidents; though he would rather the U.S. Senate return to appointment by state legislators, he says he sees no real political movement, or even scholarly discussion, tending in that direction.
Instead, he thinks the Founding Fathers' originally intended vision of a limited government, properly checked and balanced, would be more feasibly served by Congress honoring the 10th Amendment and limiting itself to passing laws explicitly allowed by the 17 enumerated powers contained in Article I, Section 8 of the Constitution.
But Holcombe doesnt see Congress restraining itself in that way anytime soon.
How do we put that genie back in the bottle? he asks aloud. I honestly dont know.
Reach Eric Giunta at egiunta@sunshinestatenews.com or at 954-235-9116.
