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

Abraham Lincoln worried that the walls of the constitution would ultimately be levelled by the silent artillery of time . His fears materialized with the 1913 ratification of the Seventeenth Amendment which eliminated federalism’s structural protection, altering the very nature and meaning of federalism. This is the argument of Ralph A. Rossum’s book in which he considers the forces unleashed by an amendment to install the direct election of US senators. Far from expecting federalism to be protected by an activist court, the framers, Rossum argues, expected the constitutional structure, and particularly election of the Senate by state legislatures, to sustain it. Rossum challenges the fundamental jurisprudential assumptions about federalism and provides an indictment of the controversial federalist decisions recently handed down by an activist US Supreme Court seeking to fill the gap created by the Seventeenth Amendment’s ratification and protect the original federal design. Rossum argues that it is the ultimate irony of constitutional democracry that an amendment intended to promote democracy, even at the expense of federalism, has been been undermined by an activist court intent on protecting federalism, at the expense of democracy.