GLEN COVE, NY — In 1787, the delegates to the Constitutional
Convention wrote the United States Constitution and created a model
for constitutional government that has never been surpassed. Two years
later, the French Estates General created the model for modern tyranny.
These represent polar opposites of modern government. The American
model was designed to require concurrent majorities and institutions
to make any change to a basic institution or abridge any established
civil right. The French model was designed to allow popular majorities
to kill former tax collectors, aristocrats, clergy members loyal to
the Pope, and chemists. The American model protects the individual,
while the French model empowers the majority even to the point of tyranny.
The keystone of the American Constitution is the United States Senate,
which the Framers regarded as a bulwark against tyranny. They designed
the Senate to protect the small states from the will of popular majorities
in the House of Representatives and from overreaching by the federal
government. The more deliberative Senate was able to give careful consideration
to proposals passed hurriedly by the House of Representatives in response
to popular enthusiasms, and the Senate established a tradition of taking
sufficient time to do this.
The House of Representatives and the Senate quickly developed different
approaches. In the House of Representatives, the leaders control the
flow of business and the majority sets the legislative agenda. In the
Senate, unanimous consent governs much of the legislative work, and
traditional courtesies protect the rights of every senator.
Unlimited debate is a crucial part of the Senate’s ability
to give thorough consideration to proposed legislation. Sometimes this
process involves the filibuster. The classic filibuster required those
who wanted to prevent a vote to talk continually, night after night.
In recent years, however, the Senate has not insisted on actual debate
but simply neglected any matter that was being filibustered until the
votes were sufficient to close debate. Once Senators were no longer
required to stand for hours talking during a filibuster, the filibuster
became much easier and was used more often. In response, an unwise
change was pushed through as part of the civil rights revolution that
reduced the number of votes necessary to close debate from two thirds
Filibusters are also restricted by the rule limiting debate on bills
that reconcile the amounts authorized in laws to the amounts in the
budget. The proponents of the health care Intolerable Acts have used
this rule in a way in which it was not designed and which will open
the door to rushing legislation through the Senate without deliberation.
The Constitution originally provided that Senators be elected by the
state legislatures. This requirement gave the states a valuable voice
in Washington to protect them from excessive centralization of the
government. In 1913, Progressives pushed through the 17th Amendment
to the Constitution, which established direct popular election of Senators.
This change deprived the several states of their last voice in the
federal government and made the Senate far too much like the House
of Representatives. Senators elected by state legislatures were likely
to block action to concentrate power in the federal government; they
were unlikely to pass laws that would violate state sovereignty, and
they were unlikely to advise and consent to appointees hostile to state
sovereignty. The 17th Amendment deprived us of these prudent protections.
A government that is too efficient in taking away rights from individuals
or state governments can be the gateway to tyranny. A Senate that is
more or less a carbon copy of the House of Representatives may be more
efficient, but it also may be hazardous to liberty.
The Constitution originally provided for a Senate that represented
the states rather than the voters. A popularly elected Senate that
can easily end debate is no check at all on the House of Representatives.
The people need to be educated about the intent of the Framers when
they established the system of delay and deliberation as a protection
against the tyranny of popular passions. Perhaps then the Senate will
be able once more to serve as a needed brake on reckless legislation.
Perhaps then we could even return to the original way of selecting
Senators. The Senate was once a far, far better place. It should return
to its roots.
The Confederate Lawyer column is copyright © 2009
by Charles G. Mills and the Fitzgerald Griffin Foundation, www.fgfBooks.com.
All rights reserved.
Charles G. Mills is the Judge Advocate or general counsel for the
New York State American Legion. He has forty years of experience in
many trial and appellate courts and has published several articles
about the law.
See his biographical sketch and additional columns here.
To sponsor the FGF E-Package, please send a tax-deductible donation
Fitzgerald Griffin Foundation
P.O. Box 1383
or donate online.