Ulysses at the Mast: Democracy, Federalism, and the Sirens' Song of the Seventeenth Amendment
1997; Northwestern University School of Law; Volume: 91; Issue: 2 Linguagem: Inglês
ISSN
0029-3571
Autores Tópico(s)Law, Rights, and Freedoms
ResumoJay S. Bybee* Whoever, unaware, comes close and hears Sirens' [lucid song] will nevermore draw near... his home .... But if you wish to listen to their song, just stand erect before mast and . . . tie fast your hands and feet .... But ... if you plead with [your crew] to loose those bonds, they must add still more ropes and knots.1 I. INTRODUCTION One of most remarkable aspects of Constitution is manner in which it marbles together people and states. The Constitution begins with words We People of States2 and ends with requirements for state ratification and signatures of its authors.3 In between, Constitution alternately protects or subjects to national control people and states.4 While American federalism allowed federal government to do almost all its business directly with persons,5 states remained constituent and essential parts of federal Government.6 By ratifying Constitution, states agreed to cede a portion of their sovereignty to a new entity, United States. The states granted to Congress their collective powers to impose taxes,7 incur debt,8 issue coin and securities,9 regulate commerce among states and with other sovereigns,10 and control engines of war.11 The states further relinquished their rights to act as independent sovereigns and enter into treaties with foreign countries, coin money, grant titles of nobility, and wage war.12 The states gave up their powers to lay duties on goods of other states,13 to treat citizens of other states as aliens who lack privileges and immunities of their own citizens,14 and to regard public acts of other states as those of foreign powers.15 As to those powers vested in Congress and deprived states, Congress's authority was complete over people and states. Nevertheless, Congress did not acquire plenary powers of a national government. Madison noted that if the Government [is] national with regard to operation of its powers, it changes its aspect again when we contemplate it in relation to extent of its powers.16 The states reserved authority over their criminal laws,17 particularly power to issue or not Writ of Habeas Corpus.18 The Constitution also made clear that states might maintain a separate militia19 and provide their own rules regarding religious freedom, speech, and press.20 States retained a right to territorial integrity against efforts to divide or combine states21 and right not to be deprived of equal representation in Senate without state's consent.22 To these enumerated reservations, Constitution added that powers not delegated to States, nor prohibited to states, were reserved to states and people.23 Nowhere is interrelationship between people who ordained and established States and states who ratified it more evident than in election of President and composition of Congress. The President and Vice President are selected by electors who meet following popular election. By tradition, a state's electors-equal to total of its senators and representatives in Congress-vote for candidate who received largest number of votes in state.24 The voting for President is accomplished by states. This arrangement combined both democracy and federalism, without subordinating one to other.25 This same pattern replicated in structure of Congress. As James Madison described it: The house of representatives will derive its powers from people of America, and people will be represented in same proportion, and on same principle, as they are in Legislature of a particular State. So far Government is national not federal. The Senate on other hand will derive its powers from States, as political and co-equal societies; and these will be represented on principle of equality in Senate, as they now are in existing Congress. …
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