Federalism, the Supreme Court, and the Seventeenth Amendment: The Irony of Constitutional Democracy [Paperback]

Ralph A. Rossum (Author)

Book Description

ISBN-10: 0739102869 | ISBN-13: 978-0739102862 | Publication Date: December 15, 2001

Abraham Lincoln worried that the "walls" of the constitution would ultimately be leveled by the "silent artillery of time." His fears materialized with the 1913 ratification of the Seventeenth Amendment, which, by eliminating federalism's structural protection, altered the very nature and meaning of federalism. Ralph A. Rossum's provocative new book considers the forces unleashed by an amendment to install the direct election of U.S. Senators. Far from expecting federalism to be protected by an activist court, the Framers, Rossum argues, expected the constitutional structure, particularly the election of the Senate by state legislatures, to sustain it. In Federalism, the Supreme Court, and the Seventeenth Amendment Rossum challenges the fundamental jurisprudential assumptions about federalism. He also provides a powerful indictment of the controversial federalist decisions recently handed down by an activist U.S. Supreme Court seeking to fill the gap created by the Seventeenth Amendment's ratification and protect the original federal design.

Rossum's masterful handling of the development of federalism restores the true significance to an amendment previously consigned to the footnotes of history. It demonstrates how the original federal design has been amended out of existence; the interests of states as states abandoned and federalism left unprotected, both structurally and democratically. It highlights the ultimate irony of constitutional democracy: that an amendment intended to promote democracy, even at the expense of federalism, has been undermined by an activist court intent on protecting federalism, at the expense of democracy.

Editorial Reviews

Review

Dr. Rossum abundantly documents in this readable book what many have intuitively felt, that the Seventeenth Amendment was a cosmic betrayal of the Constitution. It must be repealed if limited government is ever to be restored. (Rice, Charles E. )

Ralph Rossum presents us with an arresting thesis. By providing a new perspective on the role of the courts in dealing with the recurring issues surrounding the Framers' vision of federalism, it is bound to engender debate of the highest order in the years to come. It will prove especially challenging for those of my persuasion who would like to check the growing centralization of power in Washington. (Carey, George W. )

Raplh Rossum...offers a series of provocative theses that relate directly to federalism. . . . Rossum writes gracefully and authoritatively. He draws on familiar principles, like the virtues of an extended commercial republic, checks and balances, and the operation of self-interests. (Publius: The Journal Of Federalism )

Ralph Rossum's illuminating study of the Seventeenth Amendment will prompt many scholars of law and politics to rethink their understandings of the Supreme Court's role in protecting federalism. This is a timely and important book. (Glendon, Mary Ann )

About the Author

Ralph A. Rossum is Director of the Rose Institute of State and Local Government and Professor of American Constitutionalism at Claremont McKenna College. He is author of seven books, including American Constitutional Law, (with G. Alan Tarr).

Product Details

• Paperback: 312 pages
• Publisher: Lexington Books (December 15, 2001)
• Language: English
• ISBN-10: 0739102869
• ISBN-13: 978-0739102862
• Product Dimensions: 9 x 5.9 x 1 inches
• Shipping Weight: 1 pounds (View shipping rates and policies)
• Average Customer Review: 5.0 out of 5 stars  See all reviews (1 customer review)
• Amazon Best Sellers Rank: #402,159 in Books (See Top 100 in Books)

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11 of 15 people found the following review helpful:

5.0 out of 5 stars An innovative and compelling critique of the federalism revolution, January 23, 2006

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R. Price "caesar_42" (Liverpool, New York) - See all my reviews
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This review is from: Federalism, the Supreme Court, and the Seventeenth Amendment: The Irony of Constitutional Democracy (Paperback)

Since 1992 the Supreme Court has engaged in a federalism revolution by using textual and non-textual constitutional arguments to limit federal power in favor of states. Rossum argues that this judicial attempt to police federalism boundaries is illegitimate because the 17th Amendment fundamentally altered the concept of federalism as originally designed. Rossum demonstrates that the founders understood that exact definition of federal power was impossible because of the changing necessities of time. Rather than entrust the Supreme Court to define federalism's boundaries, the founders created a constitutional structure that would police the exercise of federal power. This structure rested primarily upon the fact that the state legislatures elected senators. After explaining these original points, Rossum examines the actual practice of the Senate in the first congress and how it protected state prerogatives during consideration of the Bill of Rights, the Judiciary Act, and the Bank bill. After examining the pre-Civil War practices and understandings, Rossum turns to the 70+ year process of adopting the 17th Amendment. Finally, Rossum sums up the study with an examination of the federalism revolution and how it attempts to do the impossible: breathing life (federalism limits that are indefinable) into a corpse (constitutional federalism).

I think Rossum's book is wonderful for a few reasons. One is that it demonstrates again the historical naiveté of originalists who focus on 1787 without considering the impact that subsequent constitutional developments have upon that original structure. Another is that it helps illuminate the importance of constitutional changes that are often viewed as nothing more than minor corrections. And, while not involved in this study, I think it is interesting that Justice Scalia was originally the first person to propose to Rossum that the 17th Amendment altered the federal structure; given the fact that Scalia has joined in the federalism decisions (with one exception), we have to question his intellectual commitment to federalism.

While I agree with most of Rossum's criticisms, I do have a problem in one area. Generally, I think Rossum hits the nail on the head in regards to the 14th Amendment, the commandeering cases, and the state sovereign immunity doctrine; however, I'm not convinced as to the Commerce Clause. The first three are all based on non-textual or, worse, directly contrary to text and history and thus are illegitimate, at least according to conservative constitutionalists. But the Commerce Clause is a textually delegated power and, as such, it is subject to judicial interpretation in the same way that limits on that power in the Bill of Rights is. While Rossum is correct that Chief Justice Marshall relied upon structure to limit the powers of the federal government, even he recognized that if a law fell outside of federal power it would be unconstitutional.

The final irony of this story is that the Seventeenth Amendment "intended to promote democracy, even at the expense of federalism, has been undermined by an activist Court, intent on protecting federalism, even at the expense of the democratic principle." (p2).