[jeffdavis]

Good idea. How about:

"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."

That would keep the pesky federal government out of our personal affairs.

[Reelin]

The interstate commerce clause made for a fine end run around the spirit of that bit in the end.

If we do ever manage to address the interstate commerce clause, we'll have to account for the fact that our day to day functioning has come to depend on a number of large federal regulatory bodies whose legitimacy is derived from it (ex FDA, FCC, etc).

[AnthonyMouse]

> we'll have to account for the fact that our day to day functioning has come to depend on a number of large federal regulatory bodies whose legitimacy is derived from it (ex FDA, FCC, etc).

The simplest way to deal with that would be to have those bodies continue to exist and publish "suggested" rules, which all the states could then adopt wholesale if they don't want to be bothered to do anything different.

Or a state could do something different, if they wanted to, which is kind of the point.

[squiggleblaz]

That doesn't solve interagency problems. What do you do when someone is drugrunning on two sides of a border? Just run two completely independent investigations and hope that California agents aren't worried about Oklahoma agents getting the credit?

[MacsHeadroom]

This is how the state health and labor departments work right now.

When the CDC recommends action for workplace safety in light of a strain E. Coli found in a crop grown in one state and sold in many, state health departments and state labor departments have full autonomy on how to handle the issue in their respective states.

[xyzzyz]

I don’t really think that a lot of day to day functioning depends on FDA. FDA definitely has a lot to say about a lot of things, and, arguably, without it, some undesirable things would happen more often, but all in all, we would be mostly fine.

[Reelin]

I don't have the time or energy to synthesize an exhaustive list of concerning examples on the spot. If the prospect of an under regulated food supply doesn't concern you I would strongly suggest reading "The Jungle" by Upton Sinclair. (Or for a lighthearted example, see: https://www.cbsnews.com/news/chemical-infused-watermelons-ex...)

[eecc]

Yeah, imagine having to negotiate the EULA of every single grocery item to check for “fitness for consumption” clauses, what a Libertarian dream would that be! Of course the Market will eventually average out the bad players, thanks to the compound effect of billions of Rational Choices... eventually we’ll also be dead as that John Maynard guy once said. Perhaps sooner rather than later in this scenario ;)

[ilkan]

There are few rational choices given the lack of current transparency and future information that hasn't happened yet. There is no Market without immediate consequences. Dole Foods often has salad recalls due to ppl getting sick with e coli... Are they really a bad actor? Or just a poor one that can do better? Do you have time to make your own rating of which company, manufacturing plant, farm it was supplied from? What's a credible dinner alternative given your context and available time and guests? A bad actor can last a long time.

[IG_Semmelweiss]

Funny how daring americans were flying planes for almost 20 years, no EULA needed, and planes didn't drop out of the skies at all.

If anything, the problem is that when there are no rules, some people (pilots) themselves were reckless and can endanger others. That is something to be solved by criminal courts, though.

[david38]

Sure, but then federal support of state projects gets tied to whatever the federal government wants the state to do. The state isn’t bound, but it’s political suicide to turn down money.

This is a powerful weapon that can be used for both good and bad.

[jeffdavis]

This is why direct taxation (16th Amendment) was a mistake. It allows the federal government to take away the citizens' money first, and then give it back to the states, with conditions.

If the federal government had to collect from the states, then there would be more oversight and power for states to say "wait a minute, why are we giving you money and then begging to get it back".

In theory, the result could be the same. Congress could still pass spending bills and give the money over with conditions. But in practice I think states would be in a more powerful negotiating position.

[somethingwitty1]

Though I'm not necessarily disagreeing, eliminating direct taxation is more complex than just giving oversight to states. If a state can say, "no, not giving you money unless we get it back", it becomes a lot harder for the country to function. Money from Connecticut helps pay for numerous programs in other states. At a high-level, we like to say that states would make the right decisions, but would they? Or would Connecticut say they'd rather have the money to sustain their state better? Of course, is the federal government making the right decisions?

[jeffdavis]

Think about it this way: collecting taxes from states was a two-party relationship. The states were compelled to pay in this transaction, but it's still two parties on opposite sides of the table, and their are other topics to negotiate later. If the federal government were to play an obvious game of taking money and then giving it back with conditions, then states would have exerted their power in other transactions. For instance, with senators who were chosen by the state legislature (the same body paying the taxes). Additionally, the state is a stronger entity to fight back against this kind of abuse than an individual citizen.

Now, let's change the picture to directly-elected senators and direct taxation. Now, the money is collected directly from the citizens first, and then the government's relationship with the state is entirely different. Now, the state and the federal government are cooperating, and the sucker is the one not in the room: the citizen whose money is being passed around. The state just becomes a node in a hierarchy, rather than a formidable agent with its own powers and responsibilities.

It's actually very similar to negotiations with a public employees' union. The government and the union are "negotiating", but they are really on the same side of the table. The sucker is the citizen who's paying for it all, but isn't even in the room.

[squiggleblaz]

I don't think the alternative is voluntary donations by states to the federal government vs direct taxation of individuals, but compulsory contributions from the states to the federal government.

The reason it would have a different outcome is because in a debate between 51 people, the chair doesn't have that much more power than the individuals. The federal government might be agree to set contributions according to fixed dollar values that the states can watch inflate down to a more palatable value, or they might agree to ignore certain sources of wealth in their calculations.

Discussions and disagreements will take on a very different flavor compared to the discussions and disagreements between a third of a billion players.

It is not apparent to me why this should result in an end to regulation of drugs as this subthread seems to imply it should. States can be just as interested in preventing drug use as the federal government - even more interested.

[fragmede]

The drug regulation question isn't theoretical. There's currently a difference of opinion between more than half of the states, compared to the Federal government, on whether or not to consider cannabis a illicit substance with no legitimate use.

I don't know that an end to regulation of all drugs is in order, but if a majority of states (which make up the Federal government) believe cannabis has legitimate use, why then, is it still Federally illegal?

[8note]

Is there actually a difference between asking politely for money from the states and "requiring" it?

When a state doesn't pay up, what's the union government going to do?

[roenxi]

> At a high-level, we like to say that states would make the right decisions, but would they?

What magic method does the Federal government have to only make the right decision? The Federal government is just as likely to make the wrong decision as a given State. Probably more so, if a big government makes a mistake it is harder to correct than when a small government makes the mistake. And the effects are more far-reaching.

[themaninthedark]

The Federal Government just makes decisions slower, that is by design. Sort of a brake effect. Look at Prohibition for example, some states enacted laws. Eventually the movement gained national ground and the amendment was passed. It took 13 years for it to be repealed.

I would posit that America has less of a pot culture then it did a drinking culture. The history reads similar. First states took up the banner of morality. >In the West, the first state to include cannabis as a poison was California. The Poison Act was passed in 1907 and amended in 1909 and 1911, and in 1913 an amendatory act was made to make possession of "extracts, tinctures, or other narcotic preparations of hemp, or loco-weed, their preparations and compounds" a misdemeanor.[6] There is no evidence that the law was ever used or intended to restrict pharmaceutical cannabis; instead it was a legislative mistake, and in 1915 another revision placed cannabis under the same restriction as other poisons.[6] In 1914, one of the first cannabis drug raids in the nation occurred in the Mexican-American neighborhood of Sonoratown in Los Angeles, where police raided two "dream gardens" and confiscated a wagonload of cannabis.[19]

Other states followed with marijuana laws including: Wyoming (1915); Texas (1919); Iowa (1923); Nevada (1923); Oregon (1923); Washington (1923); Arkansas (1923); Nebraska (1927);[20] Louisiana (1927); and Colorado (1929).[21] -Wikipedia https://en.wikipedia.org/wiki/Legal_history_of_marijuana_in_...

Now states are removing their laws and with an eventual push the Federal government will change their laws as well.

[AnthonyMouse]

The real mistake was to make Senators elected rather than appointed by the states as they originally were. Representation of the general population is the purpose of the House, the Senate was meant to represent the states in the federal government.

[rayiner]

I’m glad on HN people have opinions like “the direct election of senators was a mistake.” I mean, I agree, but I’m usually the only one in the room.

[jeffdavis]

The biggest flaw when reasoning about government is overestimating how well democracy works as a method of solving problems.

If everyone agrees about the major stuff, and you just need to finally make a decision on what color to paint the bike shed, democracy is great. A decision gets made, enough people are happy, and you move on.

But when you have real differences, you need a way to protect minorities against large coalitions of voters. Even if you aren't in a minority today, shifting politics (and divide-and-conquer politicians) will ensure that you are in a minority soon enough.

And it's even worse when society is polarized, because the coalitions form too quickly and too strongly.

But limiting the power of the majority is hard. The Constituion is genius because they recognized that and divded the power so many different ways. The protection of political minorities is much more important than the small amount of additional abstract fairness you get with direct elections.

[joshuamorton]

Have y'all forgotten the entire reason the 16th amendment was passed? It wasn't because of fairness, it was because the state legislatures couldn't agree on people to elect. And when they could there were concerns about corruption and seats being sold.

[mcv]

I'm not American, but if the Senate is meant to represent the states, then it makes sense to have them appointed by the states, or elected by the state legislatures (this is for example how the Dutch senate (Eerste Kamer) is elected, though it's still proportional to the population of the provinces, unlike the two per state no matter how big or small).

But if you want your country to be democratic and representing the people, then the people's representation (the House) should hold most of the power, and the representation of the states (the Senate) should only really be involved in states-related issues. For example, not being able to create laws, but only deciding whether an issue is a federal issue or a states issue.

Merely making senators appointed by states isn't going to fix all of the problems with the senate.

[Simon_says]

Used to be that way until the 17th amendment.

[themaninthedark]

Wow, this is the first time I have ever seen anyone other than me express this opinion.

I understand some of the reasons changes were made, look forward to reading the this thread!

My quick thoughts on the matter is that since the changes, people have stopped paying as much attention to local(State politics) and focus more on Federal politics.

Edit to add information to support my thoughts: Look at the disapproval rating for congress, around 64%. But a large majority are incumbents. The feeling I get when talking to people is that the Senator from state X is the worst but my Senator from state Y is perfect/has flaws but brings value to my state.

[vkou]

I am completely incapable of understanding this argument.

The only interests states have are the interests of their constituents. States don't need representation, their people do - because states don't have interests, people who live in them have interests.

It should be noted that the original ideal, at the time the national framework was drafted, was for the Senate to represent the interests of oligarchs, couched in the language of it serving as a representative of the interests of the states. In that respect, it's still doing a rather swell job.

[AnthonyMouse]

> The only interests states have are the interests of their constituents.

So then it shouldn't matter, right? The constituents elect the state legislatures who represent their interests, one of those interests is having US Senators who represent their interests, so their elected representatives appoint those US Senators. If your theory is correct then this should have the exact same result as directly elected Senators, because the states don't have interests separate from those of their constituents.

But it isn't, because elected officials do have their own interests. So then the question is, which process produces Senators that represent their constituents better?

US Senators have a personal conflict of interest in expanding the scope of the federal government in excess of what's in the interest of their constituents, because the federal government is subject to their control, and they personally want to control more stuff. State legislatures have the opposite conflict -- they want more state control, for the same reasons.

If you have directly elected Senators, there is no check on that conflict of interest and federal scope expands without bound. If you have Senators appointed by the state legislatures, these conflicts more or less cancel out. The US Senator still has the personal incentive to increase the scope of the federal government, but now they're directly accountable to the state legislatures with the opposite interest, and the result is closer to the true interest of the constituents.

Meanwhile the House is still directly elected, which is a countervailing check on the power of "oligarchs" or what have you, because a federal law has to pass both.

[vkou]

Thank you for explaining this point. I disagree with it, but I see your motivation for it.

> The US Senator still has the personal incentive to increase the scope of the federal government, but now they're directly accountable to the state legislatures with the opposite interest

State legislatures are only interested in a decreased scope of federal government when the federal government is not giving them what they want, much like how the States Rights party only cares about states rights when those rights concern themselves with what their base wants.

So, I don't think you're going to get that kind of check and balance. What you're probably going to get is similar to my original thesis - that it shouldn't matter...

Except that it does.

If you have the state legislatures appoint a truly terrible senator, there's no personal blowback against any of the members of the legislature - because responsibility is diffused. The office would become:

1. A perfect reward for connected party insiders, who, compared to the status quo, don't even have to win an election.

2. That would not be accountable to the public.

3. And where the people the public can hold accountable (The people making the appointments) are two steps removed from their behaviour.

Consider, for the sake of argument, supreme court appointments. Consider that a man who turned out, after the fact, to be an absolute monster was appointed. Then consider, what kind of blowback would the senators who made the appointment be subjected to?

They wouldn't be any. Just like how there's currently no blowback against Senate Republicans for the crazy train ride that Mitch McConnell takes them on. Everyone can shrug their shoulders, shirk responsibility, and blame the rest of the collective (preferably the guys holding safe seats) for the disastrous appointment.

Consider, also, all the bellyaching that people on this forum have about overreach by appointed bureaucrats running federal agencies? You'd have this exact problem, except it would be even more difficult to hold them to task, and they'd have even more collective power than executive bureaucrats currently do - where they couldn't even be overruled by the legislature - because they are the legislature.

That idea is frankly, terrifying.

[squiggleblaz]

Note that the best contemporary example of a functioning federal democracy with state-appointed federal legislators is Germany. There, the state premiers and some members of cabinet are members of the Bundesrat, the upper house of federal parliament.

As an empirical matter, it certainly seems as if their interest is in increasing federal power, since that gives them more power against their own state legislature. If they want a bill passed, they can use their federal power to create an obligation on their state parliament to pass a bill.

Consequently, the very clear direction of power shift in Germany has been - much more so than in the English speaking federations - an increase in federal power. (Also, a more recent prohibition on state deficits even accelerated that trend. State governments became enthusiastic about trading a little power for some extra money.)

When, as in the US, state lines run through the middle of metropolitan areas, cities and even small towns, and generally serve more to divide than to unite, it is not at all obvious that an increase of federal power compared to state power is such a bad thing. I think it would be better to redraw the map and then for the states to have powers that make sense. But I think that is about as likely as a Democrat and a Republican to agree on the color of the sky on a clear day.

[jeffdavis]

"Democracy" and "the will of the people" are abstractions, and pretty crude ones, at that.

I'm not saying that we shouldn't have democracy, but we should acknowledge that it is far from perfect. As Churchill said, "Democ­ra­cy is the worst form of gov­ern­ment, except for all the oth­ers."

Democracy is also not a scale-free process. Very different dynamics play out in a democracy the size of a city versus a state versus the size of a nation.

It's hard to explain briefly, but basically all of these separations of powers are designed to avoid some of the worst aspects of democracy. They happen to look less "fair" in an abstract sense, but it's more important to have some practical safeguards than abstract fairness.

A lot of our most heated political battles are playing out at the federal level (and have been for a long time), and I think that's a consequence of the 16th and 17th Amendments. If some of these battles were playing out in the states, I think our society would be a lot less polarized.

[squiggleblaz]

I think that was the inevitable consequence of terms for Senators. It is clear that a person appointed by a red governor cannot represent the blue governor who administers the purple state for several years starting six months later. State-appointed senators with fixed terms have little natural legitimacy; it is not a sustainable model.

If you want the senate to represent the states, you need the German system - there, the Bundesrat (Federal Council) has as its members the premier of the state (and, depending on the state's size, some number of ministers). Its members and balance can change whenever there is a state election (which are not tied, US style, to federal elections).

Now, while they will represent the interests of the state governments quite well, be aware of this - the premier has an interest in transferring power from the state governments since their power as a member of the federal upper house is greater than their power as a member of the state lower house. They can use their federal role to create an obligation for themselves as state ministers, and then tell state parliament "Oh, we have no choice; the federal government has said so. Please fall in line with this policy that I want and you do not want."

The paliamentary system is repugnant to the American sense of the separation of powers. But since American separation of powers prefers to give legislative power to the executive, it's less obvious that making governors members of the Senate is repugnant. This would multiply the problems above.

Perhaps having a recallable delegate who is effectively a member of the state cabinet without portfolio would be palatable; but still, such a delegate would be entirely at the mercy of the state governor (or it would work), and we then would still see the benefits to the state governor of creating legislative obligations that state congress still has to fulfil.

To me, it seems that the Australian senate does a good job of representing the people of each State. Since the interests of States can be said to be the interests of the people of each State (rather than the interests of the State governments) it therefore discharges its responsibilities adequately. The key here is in having many five or members per state elected at once using a proportional method like STV optimised for small electorate magnitudes. Since the majority of any state will be made up of a roughly equal number of blues and reds it encourages them to work together at the expense of the small number of extremists or against each other with centrists and sometimes fringe members. Constantly changing coalitions (per bill) mean negotiation skills become important. But how adaptable it is to a federation of 50 states - I don't know.

[AnthonyMouse]

> It is clear that a person appointed by a red governor cannot represent the blue governor who administers the purple state for several years starting six months later.

The purpose of the Senate isn't to represent the existing representatives in a state, it's to represent the interests of the state in the abstract. Having a red US Senator in a state with a blue Governor is no more a problem than having a red state legislature in a state with a blue Governor.

> But since American separation of powers prefers to give legislative power to the executive, it's less obvious that making governors members of the Senate is repugnant.

This is largely only true at the federal level and for a very specific reason. The federal government was not structured for the level of responsibility it has taken on as a result of the direct election of Senators removing the state veto on increasing federal scope.

In state governments you have an elected governor and legislature, but also elected school boards, treasurers, sheriffs etc. There are no elected positions in the Federal Department of Education, nor the Federal Reserve, nor the FBI. The constitution didn't contemplate that the federal government would grow to cover so many things, so they all fall under executive control. But the source of the problem isn't pushing too many things to the executive, it's pushing too many things to the federal government to begin with.

[jeffdavis]

Article I, section 3: "The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof...".

[8note]

The only case where elections aren't accurate for this is if the state government is non democratic. The state is just a bunch of people -- representation of the state is covered by how many representatives are sent per state. To my knowledge, the general population of the colonies and so on don't get representation in the Senate, only people that live in states

[dragonwriter]

> The real mistake was to make Senators elected rather than appointed by the states as they originally were.

This sentence can be corrected by deleting every word after “Senators”.

[adrianN]

If you didn't have a fairly strong federal government, the US would become like the EU, basically unable to enact change in any even slightly controversial topic.

[icelancer]

This was one of the original anti-federalist arguments that has somehow hundreds of years later become adopted by leftists in the United States.

[adrianN]

I didn't know that. I live in the EU and frequently get upset because some country or other vetoes important change.

[squiggleblaz]

I'm pretty sure you missed the unwritten /s in the previous post.

[icelancer]

Apparently not, OP followed up.

[nkozyra]

Ultimately the flaw with this clause is the flexibility and amenability of the Constitution.

[jeffdavis]

Federal drug laws were upheld on the grounds that they are regulating interstate commerce ("regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;").

The idea that growing plants on your own land for your own consumption would some how fall under this legislative power is ridiculous. It's not "flexibility", it's fraud.

See: https://en.m.wikipedia.org/wiki/Gonzales_v._Raich