Commentary: How the Senate was radically altered from the Founders' design — and the result

Virginia Allen of the Heritage Foundation recently interviewed Joseph Postell, an associate professor of politics at Hillsdale College, about Congress and its history. Allen asked a question that goes to the heart of the Founders’ design: “Now, when the Founders were crafting Congress, why did they see a need for two separate entities, to have a House and a Senate?”

“Yeah, it’s a great question, and it’s really the most important question,” Postell replied. “All these other questions are more technical and procedural. But I think the question you’re asking really gets at the most significant thing about Congress ...”

“So they actually deliberately made Congress weak by dividing it up into these two bodies,” he explained.

Much of what the professor tells us, however, invites a very different answer.

First, there is the significance of the word “Congress.” Here is the first definition of that word in my dictionary: “A formal assembly of representatives, as of various nations, to discuss problems.” The Congress of Vienna is a famous example. It was a series of meetings between representatives of the nations of Europe to try to work out a new European political order after the defeat of Napoleon. It was not called the Parliament of Vienna because it was not a legislative body but an assembly of representatives.

And neither was America’s Continental Congress. As Postell notes, the Continental Congress predated the Constitution. Representatives of the 13 former colonies met to work out how they could win their independence from the British Empire. It is often said that the Continental Congress was politically weak. All that really means is that it was not a legislative body. The states retained their sovereignty, and the representatives of the states met together to discuss the challenges the states needed to face together.

Why, then, did the Founders keep that name for the American legislature created by the Constitution? After all, it was no longer a formal assembly of representatives of the various states to discuss the problems they had in common.

Keeping the name made sense because the first Congress under the Constitution was in many ways more like the Continental Congress than the Congress of the bloated post-constitutional central government we have in Washington, D.C., today. Here is James Madison in Federalist 45:

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce. ... The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

As Madison makes clear, the new federal government was to have powers the Continental Congress did not have, but it would have those powers in order to deal with the same “external objects, as war, peace, negotiation, and foreign commerce” that the Continental Congress had struggled with. Those “few and defined” powers were to be limited by the limited responsibilities of the new federal government. In every other way, the states retained their sovereignty.

Postell's very astute discussion of why the Founders kept the name is right on target:

So unlike, say, Parliament, which was the idea of a legislative body with which the Framers were familiar, Congress implies something more like a bunch of different countries or different groups of people coming together to hash out their differences ...

They use this word Congress because they really believed in a federal system. They really believed that they were states that were united for limited purposes, but a lot of the power and the sovereignty was going to lie back with the states.

So under this conception, really, it’s not an entirely national system. It’s actually a federal system in which the Congress is almost like diplomatic representatives from different countries coming together to kind of deal with issues like trade and military defense and things like that.

Just as the governments of the states had sent representatives to the Continental Congress to confer about the conduct of the war and about negotiations with foreign states, under the Constitution, they would send representatives to the Senate with the new delegated powers to meet those same responsibilities.

Though it can be difficult for us to recognize, accustomed as we are to monstrous central government that has replaced the federal government America once had, the Founders’ vision is right there in the name of the new country created by the Constitution: “the United States of America.” The basic political definition of “state” is “the supreme public power within a sovereign political entity” (my emphasis). The word has acquired an additional definition: “One of the more or less internally autonomous territorial and political units composing a federation.” We have that additional definition because of the Founders’ invention of America.

The invention of America required the states to give up their power to make war and to negotiate treaties with foreign states. The Founders argued that Americans would be safer and better represented in the world by a federal government than by many individual states operating independently and perhaps at cross-purposes.

Besides, the state governments would not be giving up control of those powers. They would retain control of them by means of the Senate. According to the founding bargain, senators would be chosen by the state legislatures, and the Senate would control those powers delegated to the federal government. That’s why the Constitution gives the Senate power over treaties, over the declaration of war, even over the people the president selects for his Cabinet. By giving the state governments control of the Senate, the Constitution gave them enormous power within the federal government.

Consequently, Congress needed two houses, not to make it weaker, but for the simplest of reasons: the Founders’ astonishing innovation required it.

The American state governments were to be represented in the Senate — the federal legislative house of the state governments — and you and the people in your locality were to be represented in the House of Representatives — the federal legislative house of the people. The states and the people would each have a representative body in the federal legislature.

But in 1913, the American people broke the founding bargain, setting in motion the ongoing process of progressively overthrowing the Constitution, which is the source of the mess we find ourselves in today.

The 17th Amendment was the single change that did the most to undo what the Founders had accomplished by means of the Constitution. It provided for the direct election of senators, the system we have now. The state governments would no longer control the Senate through the representatives they chose. The state governments’ base of political power within the federal government was taken from them, putting an end to the federal system of the Founders.

The American people were tricked by the Progressives, who presented changing the Constitution as a needed “reform.” That “reform” in effect repealed the 10th Amendment: “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.” Americans in 1913 would no doubt have voted against a simple repeal of the 10th Amendment. But by means of the 17th Amendment, the Progressives accomplished something even more far-reaching: They removed the central pillar of the Founders’ brilliantly designed federal system.

The Founders, men of honor, would certainly have opposed breaking a bargain so honorably and deliberately made. And they would also have understood that the change would throw the system completely out of balance. Precisely as it has done.

The central government is no longer a federal government primarily focused on Madison’s “external objects.” Because the state governments no longer control the Senate, our post-constitutional central government intrudes in every area of American life once reserved to the governments of the states. The government in Washington, D.C., dictates in ever-increasing detail what we as individuals must do and what we may not do, what we must have and what we may not have. It has been transformed into something that would astonish and horrify our Founders.