I assumed they had to have it. The prison library was stacked with political and legal tomes. And as a so-called “revolutionary” trying to save (and restore) the American Republic, it seemed almost a requirement for me to study up on the times and thinking that formed it.
I walked into the non-fiction library and approached the clerk.
“Do you have the Federalist Papers?” I asked.
He took a minute to look through the files. “No, unfortunately we don’t. We do have the Anti-Federalist papers though,” the clerk replied.
I was confused. “The Anti-Federalist papers?” I asked. “What is that?”
“I’m not sure,” he said, as he took me over to the section. “Let’s check it out.”
I skimmed it. The book was long, over 400 pages small-print. It contained Madison’s notes of the Constitutional Convention Debates and copies of the Articles of Confederation and the Constitution. But rather than hold the typical essays arguing for the ratification of the Constitution written by Madison, Hamilton, and Jay – what we know of today as the Federalist Papers – it held the various essays printed across the United States at that time period arguing *against* the Constitution. Essays written by anonymous individuals such as Brutus and Federal Farmer, and public figures such as Melancton Smith and Patrick Henry.
This was interesting. “I’ll take it,” I said.
And so began my long journey down a trail of political thought that has been largely ignored and forgotten.
–
The United States has existed in broadly 4 different structures since its existence.
The first period, 1774-1789, we were a confederation under the governance of a document called “The Articles of Confederation.” The United States at this time period were (not was) a series of independent states, who truly were independent. While the size of each state’s delegation to Congress varied, the vote of each state was the same, and any state could veto legislation; everything required unanimous consent to pass. And even then, states could simply ignore the laws as they saw fit. The Continental Congress could request men and money from the states, but could not compel them. It’s not precise, but the most analogous institution we see today resembling this is the European Union.
The Articles of Confederation worked fine for the war. The Continental Congress was basically the council of a military alliance, designed to coordinate finances and operations for fighting and diplomacy. It is hard for Americans today to understand, but the states really were separate countries at that time with varied cultures, religions, and even conceptions of what freedom and liberty meant. I didn’t truly grasp the extent of the differences until I read David Fischer’s phenomenal book, “Albion’s Seed,” which examines the four waves of migration to different regions of America during the colonial period. These migrations each came from different classes and regions of Britain and had very different ways of organizing themselves. They had little in common except that they all felt the oppressive weight of England’s laws and attempts to homogenize them. They fought together, at first, simply to maintain their own autonomy and distinctiveness.
But the Revolutionary War had a unifying effect for many in the colonies, especially among the elite classes. Some began to see a future of the United States as one single powerful country that could rival the empires of Europe. Many begrudgingly saw the necessity of greater consolidation due to the post-war failings of the Article of Confederation and fears the states would otherwise go to war with each other. Yet others opposed radical changes and were wary of any greater centralization of power, seeing it as the road to tyranny and future oppression of the people.
These opinions became a national conversation over a new form of government in late 1786 to 1787 after a series of political disasters. The “insurrection” in Massachusetts against the government for taxation, Shays Rebellion, brought up questions of the relationship between the people and their elected authority. Did the government have the right to use force against citizens who refused to pay taxes? Who held primacy: the people, or the state? And then there were deeper issues related to the confederation itself. Some states were carrying larger financial burdens than others when it came to debt and defense, and other states were refusing to follow international treaties the Continental Congress had brokered with England and France. It was creating diplomatic issues, which led to concerns the US would either be cut off from European trade or would once again go to war for violations, as the Continental Congress was too weak to make the individual states follow treaties. Meanwhile there was severe economic upheaval, as each state printed its own currency (in addition to the national one) to handle war debts, causing some states to experience extreme inflation. In short, the states were becoming resentful of each other and the political structure of the country was unstable. If the situation continued, it was feared that the United States would start to fragment, with individual states becoming the pawns of European powers being pitted against each other.
As the problems mounted, most people came to agree that the current structure was inadequate. But the devil, as they say, was in the details. How much consolidation was required to create a functioning United States? And who would have primacy under this new structure: the federal government or the states?
Under the Articles of Confederation, the federal government was weak and the states acceded to its legislation almost voluntarily. The individual states had all the power: they collected the taxes and raised the troops. Good faith and shared purpose were the only things that had made it work at all the prior 12+ years. Those who wanted to preserve a union agreed that a stronger federal government was required; one that had more power over the individual states. But there were many disputes over degree: some still wanted the states to control taxation, others wanted the population of the country to elect the national legislature rather than the states themselves. Without going into the details of these various iterations (like the Virginia and New Jersey Plans), a series of compromises were made in Philadelphia during the Constitutional Convention over the summer of 1787.
The agreement was that there would be two separate but equal branches of the legislature: the House, whose representatives would be elected to two year terms by the people, the number apportioned by each state’s population, who would have “power of the purse;” and the Senate, whose senators would be elected to six year staggered terms by the state legislatures, with two senators designated to each state, who would control Presidential appointments and treaties. This was a compromise not only between large states and small states, but between federal and state governments, as senators represented the latter (the 17th Amendment repealed this, which we will talk about later). In addition there would be an independent executive branch run by the President, who would be elected to four year terms by electors; the number of whom were determined by the size of each state’s congressional delegation, who in turn voted based on the popular vote in their states. The President would be the head of state and commander of the military. Finally, there would also be an independent judiciary in the Supreme Court, with justices elected to lifelong terms. It would be the court of ultimate appeal, reviewing executive actions for their constitutionality and interpreting the legislature’s laws.
In the end, all but 3 attendees of the Convention decided to sign their names to what you know today as the Constitution of The United States. Nevertheless, to become our new form of government the Constitution had to be ratified by 3/4s of the states, and since ratification was opposed in degrees throughout them, a fierce national debate ensued. This is where the Anti-Federalists came in. Although they varied in their degrees of vehemence – some were pretty much intractable on any further centralization of government – most of the Anti-Federalists were reasonable. Their issue was simple: there were no provisions in the Constitution preserving the rights of Americans against their government – common law rights they enjoyed in their states and expected – nor was there protection of the state governments against the federal government. All that was stopping the federal government from controlling everything, restricting speech, taking guns, violating habeus corpus etc. was good will, which they knew would not last forever. The result was a second compromise. While some of the proponents of the Constitution who wanted a near-monarchy (like Hamilton) opposed any restriction on federal power, most agreed to amend the Constitution after ratification to include these protections. Ultimately 10 of the 12 amendments proposed were ratified (we will discuss the two that weren’t later). The result is what we know today as the Bill of Rights.
It’s funny that today we talk about the brilliance of the Constitution, and laud the Federalist Papers for their arguments towards “a more perfect union.” But the truth is without the Anti-Federalists, our government would be terrible. The Bill of Rights is what has kept any semblance of freedom in America; this country would long be an unsalvageable tyranny without those amendments. The Anti-Federalists “lost” the debate, in the sense that the Constitution was ratified over their objections. But they won in the sense that most of the amendments they demanded were ratified too. We are as indebted to Melancton Smith as we are to James Madison for our form of government, and the preservation of our rights and liberties. There were many flaws in the Constitution that would have been fatal had the Anti-Federalists not pointed them out and forced a change.
And so began the second structure of the United States: our early Constitutional Republic, a system that lasted until 1861-71. This government differed strongly from that under the Articles of Confederation, but it was as equally different if not more so from the government we have today. The United States were still a series of independent states at that time; this was subtly implied in diplomacy from the period, when the country was referred to in a plural sense: “The United States are.” The Federal Government was essentially a contract entered into by the states outsourcing their international relations. They were separate nations under an umbrella, and state identification remained strong. But the new structure was broadly a success, especially given the broad domestic differences and international pressures. The Federal Government had supremacy, and could collect taxes, maintain an army and navy, conduct diplomacy, sign treaties etc. without concerns of individual states operating at odds with the collective. But the federal government otherwise did not meddle in state affairs, until the issue we all know – which plagued the founders from the very beginning – gradually became an issue the states couldn’t compromise on any more: slavery.
There are some revisionist historians who claim slavery wasn’t the real issue that led to the Civil War; rather, it was the rights of States compared to the Federal Government. I don’t necessarily disagree, but I think this is splitting hairs. While it’s true the ultimate issue was state vs federal rights, slavery was the issue that created this dilemma. It’s unclear if there would have ever been such an issue otherwise, or one that would at least draw so much regional polarization. The policies of northern states towards fugitive slaves were perceved as hybrid warfare against the south, and the addition of new “free” states to the union threatened the ability of slave states to block anti-slavery legislation in the Senate. As the north expanded, it was only a matter of time before the federal government would force the southern states to change their way of life.
When the balance in the Senate finally tipped in favor of the North and Lincoln was elected President, secession became inevitable. The southern slave states were no longer going to listen to a Federal Government that they felt no longer represented them. And so when the US Navy entered Charleston Harbor to force South Carolina to follow federal law, South Carolina responded with force, and the Civil War broke out. The war was devastating and remains to this day the cause of more American deaths than every other war we have fought in *combined,* even though the population of the country at that time was perhaps 10% of what it is today. But the defeat of the Confederacy did not simply end slavery; it transformed the entire relationship between the states and the federal government.
First, the north was required to empower the federal government simply to manage the war effort, but second, the desire among “Radical Republicans” after the war to force a change in southern politics led to constitutional amendments that institutionalized federal oversight of the states. This was embodied in the 13th-15th Amendments – what we know as the “reconstruction” amendments – which directed substantially more power to the federal government to “protect the people’s rights” under pretenses such as the 14th amendment’s equal protection clause. In the context of abolishing slavery and ending post-war discrimination and disenfranchisement of black people in the south, perhaps this was understandable. But the consequences were now that the federal government began to expand from its former foreign policy purview into domestic matters. The attorney general became more than just a legal advisor to the President, but began federal prosecutions of other crimes. Now, the US Government was unequivocally top dog at home, even though effectively the states still had overwhelming latitude to run themselves. Americans were now citizens of the United States before they were citizens of say, New York (although many still identified by the latter). It was no longer the “United States are,” but became the singular we know it as today: “The United States is.”
This began the third structure of the United States, which lasted until 1913-1938. During this system of government the demographics of the country changed substantially due to immigration, and its western expansion reached its completion. With the Spanish-American War, America started to dip its toes into imperialism, taking possession of Puerto Rico and the Philippines, and participating in numerous military interventions in the Caribbean. Perhaps most notably about the period, however, was the growth of big business and finance. This was the age of industrialization and monopoly.
And yet, although the Federal Government was empowered in its attempts to regulate the growth of these ventures, it was still incredibly tiny, and remained financed almost entirely off of excise taxes and tariffs. The states continued to run most of everything, and raised their own revenue to do so. Common law rights were preserved; individual sovereignty was paramount – neither the state nor the federal government hardly interfered in people’s personal lives. There was only one nation now, but it was nevertheless a decentralized one.
It wasn’t until 1913 that all of this began to change; a year that became pivotal in American history. First, The Federal Reserve Act was passed chartering the private, central bank and giving it (instead of the market) full control over America’s monetary policy. And then the 16th and 17th Amendments were ratified, the former shifting the election of senators to the people of the state instead of the legislature, and the latter establishing a federal income tax. This set in motion a 25 year process (that if conspiracy theorists are to be believed, was planned), which culminated in the various “New Deal” legislation that massively expanded the federal bureaucracy and taxation, while also unleashing a whole new host of crimes under federal jurisdiction through the reinterpretation of the Interstate Commerce Clause. Obviously these changes predominantly occurred under Wilson and FDR, but it wasn’t simply the Democrats affecting this revolution in our institutions. A Republican Congress in the early 1920s voted to stop the House of Representatives from expanding itself, restricting its size to 435 members, ostensibly to disenfranchise immigrants. Whether you looked at the changes in Central Banking, Congress, or the Federal Bureaucracy – over a 25 year period, the government suddenly became extremely large and worst of all, unaccountable.
Broadly speaking we are still living under this structure today – what I call the 4th Structure of the United States. (It’s debatable whether the structure changed again after 9/11 and the financial crisis with the intensification of the security state through the Patriot Act, and government intervention in healthcare and finance through the Affordable Care Act, Dodd-Frank, and the various bailouts. It’s especially interesting as it appears vote manipulation became institutionalized during the same period through voting machines to create permanent “gridlock” and division, giving the federal bureaucracy even more power to run things. Nevertheless, there have been no constitutional amendments creating a firm differentiation between these periods; it’s really just a continuation of the structure that has existed for 90 years.)
Under this structure the federal government has impoverished the population both through inflation (the hidden tax), rampant debt creation, and income taxes, and has all but taken over domestic legislation. States now depend on federal funds to run themselves, and are coerced into following the federal bureaucracy and laws if they don’t want them withheld. Indeed, states have essentially become administrative sub-units of the federal government, with only minor, often insignificant policies delegated to their discretion. We have seen some pushback recently from states like Florida and Texas, and in recent Supreme Court decisions. But in the grand scheme of things, the federal government still controls everything. And the forces within it do not want to give up this power.
Obviously, there is a lot more I could go into with all of this, but I think this is enough of a historical overview. The point is simply to illustrate that things have changed a lot in this country over time. We have become far more centralized, and in the process, less free. The Federal Government has become what the Anti-Federalists always feared it would: an oppressive force against both local / state governance and the individual. It is not only inefficient and ineffective at fixing the problems it seeks to solve, it’s creating them – and it is running roughshod over our rights in the process. It needs to be scaled back.
But scaled back to what? Some in the country are so pro-state sovereignty that they might disagree with me, but like most, I believe the Articles of Confederation were a failure that isn’t worth reconsidering. That is not because I am opposed to decentralization of government. The person best responsible for taking care of himself is the individual; authority should be scaled outward from him only as needed for collective welfare, in gradations to household, town, county, state, and finally nation. Nothing that can be handled locally should be outsourced to distant authorities. There is not enough concrete knowledge of the issues and accountability from afar to prevent incompetence and corruption, but perhaps even more than this, taking away local power is disempowering to the population. The more control you give the top of government, the less decision-making and agency is allocated to the bottom and middle. Things don’t simply run worse; a culture of individual sovereignty degrades. Much of the lack of civic engagement you see today in local and state politics is because people don’t see the point in investing time and energy into a job that is almost titular; where you can’t get anything of significance done because the real power comes from the top.
The issue with the Articles of Confederation, however, wasn’t a lack of decentralization, but that it did not properly empower the layer of government responsible for dealing with “the bubble” of America. The Continental Congress was completely dependent on the states to do anything. It had no authority except for what the states piece-meal decided to give it, and so it struggled to present a unified front or policy to the world for the nation. It seems almost certain the states would have separated and been dragged into European wars against each other had the federal government not been strengthened; indeed, it would have probably happened before the end of the century, given the polarization in the country in the 1790s between factions aligned with Britain and Revolutionary France. And this was in a time period where it took ships 2 months to traverse the Atlantic. Can you imagine the level of foreign infiltration and agitation possible now?
So we have to at least return to a structure that existed in America under the Constitution, when that bubble was protected. The question is simply which structure is better: the one in the Early Republic before the Civil War, or the one after that lasted until 1913?
My candid opinion is that while the former is probably better in theory, the latter is far more achievable in practice. We simply don’t have the same localized identity that we did before the Civil War. The idea of a southerner moving to the north and vice-versa back then was strange; indeed, to the extent people moved at all, it was usually only to colonize virgin lands out west. On the eve of the civil war, support was 90%+ in the North and South for their respective sides, because it was a matter of patriotism to support your state. Your state was your nation. It was your home.
It’s not like that now. Even assuming “Red States” and “Blue States” genuinely exist (and are not mostly exaggerations of captured voting systems), political divisions within states are never greater than 65-35% on one side, and usually the vote difference even in “solid” blue or red states is closer to 55%-45%. And the location of these blue and red states only obliquely corresponds to geography – they are scattered all over the country. A better assessment of our current division is by demographics or class, or by type of community (which exists in all states): urban vs suburban / rural. The point is that these differences are political rather than state or regional. No one today seriously calls themselves an Illinoisan or Arizonan before an American. Only Texas comes close to this, and it’s still not that close.
This is unlikely to change unless a change is forced by circumstances, like if the Federal Government becomes so oppressive states are forced to secede from the union temporarily and reconstitute a different iteration of the union afterwards, or if the Federal Government ceases to exist due to military intervention (say, after another national crisis) and the states de-facto become autonomous entities for continuity of government. Both of these are unfortunately possible, given the current crisis. It’s interesting to consider what the United States would look like then. State and local identity would certainly be empowered, and it’s unlikely the states would voluntarily give up their new autonomy under the new Republic. The Federal Government would become a modern iteration of the one we had under Washington, and would only focus on military, diplomacy, intelligence and maybe treasury – everything else would be run by the states. From a governance standpoint, it would be ideal. But getting there would be a very precarious process fraught with risks of total disintegration.
Returning to the pre-1913 relationship between the states and the federal government, however, would not be nearly as complicated. It would not involve a restructuring of our identity into numerous states. It would simply involve massive decentralization and a gutting of the federal government, particularly on the domestic, regulatory side. Yet this would also not preclude federal involvement domestically if necessary. They would have the jurisdiction, they would simply be constrained from doing so by further checks and balances. Which is what I want to talk about now.
The progression of America into its current state is a result of laws and changing culture, but these new structures were fundamentally anchored in by constitutional amendments. To go back to pre-Civil War America, you would need to get rid of most of the reconstruction amendments that happened after the war; particularly the 14th, which gave the Federal Government the right to intervene in many previously assigned areas of the states. I know many people would love to see these repealed. The 14th Amendment’s Equal Protection Clause, for instance, challenges the right to free association; such as the right to serve who you want at your business. On the surface, that sounds like a positive thing to change. But in practice what it means is granting the right to discriminate – and although I know libertarians argue the free market will punish bad actors, suffice to say I don’t think most of the country is probably there right now. Moreover, so many laws and norms we take for granted are based on this clause; it would be a conceptual and practical minefield unraveling them.
But it’s less of a hard sell to go back to pre-1913. You would simply need to focus on overturning the three pillars of the current structure that were passed in that year. The first is to return financial power to the Treasury and Congress by revoking the charter for the unaccountable Federal Reserve and its fiat-based monetary system. With sound money (a currency backed by gold, commodities), the Federal Government couldn’t simply print dollars or create ballooning debt obligations in order to fund its endless expansion. This is what is giving it the power it currently has. It is tantamount to the right to pillage the wealth of the entire population. Interest on the national debt alone already costs the taxpayer trillions of dollars each year, and purchasing power is continuously declining due to price-inflation; a consequence of the constant increase in the money supply. This impoverishment of the people is amplified by the second pillar, the federal income tax. This tax not only directly targets the prosperity of the wage-earning, working and middle class population, but inhibits individual states from being able to fund themselves due to its financial burden on their tax base. If the funding of the Federal Government were restricted to its former tariffs and excise taxes, and the dollar backed by real value, you would see a jump in the purchasing power of the public, and a much smaller, more focused Federal Government.
But the Federal Reserve only deals with monetary policy; our income taxes and spending, bad as they are, are ultimately passed by Congress. Which means at least half the problem comes from there – more, if we’re being honest, because Congress on its own could revoke the Federal Reserve’s charter if it wished. Congress, in theory, can do practically anything. Although each branch of government is separate but equal, the legislative branch was always supposed to be the first among equals – and throughout our Early Republic, it was. It is only in the modern era that we have seen increasing rule by the unelected – by judges, bureaucrats, and financiers. The question is why? Why is Congress not doing its job? And why does it seem like Representatives and Senators are by and large unaccountable to their constituents?
The reason is because Congress’ structure was broken in the early 20th Century by the 17th Amendment (direct election of Senators) and by Congress’ decision to stop expanding the House of Representatives. But although this “capping of the House” happened a decade after the 17th Amendment, it was in many ways the original problem with Congress – one anticipated from the very beginning of the country, slowly simmering for decades, that simply took 130 years to boil over.
When talking about the Anti-Federalists earlier, I mentioned there were in fact 12 initially proposed amendments to the Constitution. Only 10 were ratified at the time. One of the two unratified amendments concerned Congressional pay; the Anti-Federalists wanted to make sure a given Congress couldn’t vote for its own pay increase. After over 200 years this amendment was finally ratified in the 1990s; now if Congress raises its own salary, it doesn’t apply until the next elected Congress. The other unratified amendment was actually the first one proposed (what we know as the First Amendment was actually the third), and was accordingly called Article the First. It set a cap on the size of Congressional districts. The initial size would be 30,000 people per representative; once the United States reached a certain size, it would be 40,000, and then finally once it grew further, it would max out at 50,000 people per representative. That way, no matter how the population expanded, the people would continue to have true representation in the People’s House.
This amendment was almost ratified, and by some arguments, actually was. The complication was that new states like Vermont and Kentucky were joining the union at the time of the ratification process, bumping up the number of states required for it to become an official amendment. After documents were discovered in the Kentucky state legislature showing it had in fact passed, a lawsuit in the 1980s went all the way to the United States Supreme Court claiming Article the First should have become part of the Constitution. Undoubtedly, the Supreme Court was wary about making a ruling expanding the House of Representatives by some 4000 members, and accordingly ruled that although Kentucky did vote for the Amendment, because they didn’t send notice of their vote to Philadelphia (where Congress was at the time), it didn’t count. And so the Amendment remained unratified.
This lack of a representation cap was an interesting oversight in the Constitution. The founders made it explicit that no district could be smaller than 30,000 people, but they didn’t set a limit on how large it could be. The Anti-Federalists foresaw this as a problem: they said there was nothing stopping the House from setting a district size as large as the entire United States. This of course was hyperbolic, but it emphasized their primary point, which was that by controlling district size, Representatives could disenfranchise Americans and increase their own power and prestige. But although Article the First was not ratified, in practice this proved not to be a major problem for a long time. Such was the relative integrity in early America that practically every census without fail, the House would vote to expand itself. Maybe not as much as it should have – district size still gradually grew – but at least the House grew too. It wasn’t until the 1920s that they finally voted to cap the House’s size at 435 members, when it was about 250,000 people per Representative. Since then the population has more than tripled. The average district size today hovers at around 800,000 people.
This matters a lot. Your Representative is supposed to represent YOU; your locality, the people in your immediate vicinity. You hear people constantly grumble that “congressmen don’t represent anybody but their donors,” but what the people don’t understand is that this is an inevitability with such large district sizes. Hundreds of thousands of people is far too many for one individual to represent with true clarity and accountability, and the amount of power he gets from such a large district makes him a juicy target to buy off by “special interests.” This wouldn’t happen to nearly the same extent if our districts were capped at 50,000 people as Article the First demanded. There would be too many representatives with too little influence to effectively buy-off, and more than that, they would be less likely to be corrupt to begin with, because they would actually know their neighbors, and their neighbors would know them. They would be of the same community as their constituents, and would represent a broadly homogenous group as intended. Not only would this provide real representation in Congress, but it would kill the universally hated gerrymandering – the convoluted mixing of urban and rural communities into a district to dilute one or the other’s voice. With more districts of a smaller size, it wouldn’t be practical or possible to mix them like that.
The number of Representatives today would be around 6,600 if you applied Article the First to our population. I know that is an intimidating and perhaps absurd sounding amount of Congressmen to many at first blush. “Oh my God, the answer is MORE politicians?!” – is a natural initial response. But I would ask the people who feel this way to reflect: is the issue that we have too many politicians, or is it that we don’t have politicians who represent us? Would you feel the same way if they weren’t corrupt prostitutes and actually did what you elected them to do? What we need to remember is that the rot in the system is downstream from a lack of accountability and representation. Most townspeople don’t call their mayors parasites, because they are their neighbors, and they are accountable to the community. With smaller district sizes, you will get similar dynamics between constituents and their Congressional Representatives. For the first time in at least over 100 years, you may actually get taxation with representation.
But it’s nevertheless worth addressing some of the major arguments against House expansion. Probably the most reasonable opposing argument concerns the money: it would cost too much. If you multiple by 15 the current number of Congressmen, that is 15 times more salaries you have to pay, plus staff. Even if you reduce the staff per congressman and cut the salaries in half (it shouldn’t be a prestigious position, or even a full-time one) it is still a substantial increase – easily a few billion – in government spending. But again, we return to the question of what the real problem is: lack of accountability and representation. Consider all the things Congress funds that people don’t want them to fund – the money wasted without recourse by the public. And consider that these increases in spending for more Congressmen would still be dwarfed in comparison to the costs of the federal bureaucracy – a bureaucracy that is completely unaccountable to the public, and owes its existence in large part to legislation passed by Congressmen you have no control over. I’m not pointing this out to say, “well, we’re already spending so much here, what would it hurt to spend a little more.” I’m making the opposite inference: our unaccountable, unrepresentative Congress is responsible for the massive expansion of the big, unelected bureaucracy that costs us *trillions.* With a more representative and empowered Congress, this sort of government waste will be constrained.
Which brings us to the final major argument against House expansion – that Congress couldn’t possibly function with that many people. This is an amusing argument, because it implies that Congress functions now. But it’s worth acknowledging there will inevitably be some issues when it comes to decorum. However, in the aggregate, I would argue less control over the voting patterns of our Representatives is ultimately a positive not a negative thing. Historically, the House was more raucous and iconoclastic, because it was meant to be the place in government where the peoples’ emotions were vented out. It was meant to be a place of colorful rabble-rousers (in contrast to the sober, serene Senate). We have lost that personality and individual conviction among our Representatives since they became owned by donors and in all likelihood bribed and blackmailed to toe the party line. The only real downside that I can see with adding more Representatives is that there will be less time, practically speaking, for floor debate. But while I am no expert on Congressional proceedings, I don’t think this is that serious. First, because most floor speeches are useless political theatre anyway (the chamber is often empty, it’s just for the cameras), but second, because those debates can still occur in committee, and of course, behind the scenes. I actually see committees becoming more like our current House, with most practical legislating happening there. To be brought to the floor, bills will require more co-sponsors, and only the most serious ones will get out of committee for full House votes to be passed into law. There will of course be some hiccups, but it cannot be worse than it is now, where nearly every bill passed is either pointless or actively harmful for the public, and Representatives are such controlled creatures you could replace one for another within a party and scarcely know the difference.
I understand, nevertheless, that this idea of House expansion will take some getting used to. It’s not a mainstream argument you hear discussed on the news or among politicians. But that’s by design, because it is a direct threat to the power structure we have today. We ceded from Great Britain 250 years ago because we were being taxed without representation – because the colonists understood that all tyranny flows from unaccountable, unrepresentative government. When you scoff at a larger House, what you are scoffing at is the importance of your own voice. It shows slave conditioning. I know that there are complications from such a House expansion given the size of our country, but these are more problems for the ruling class than they are for you. We need to keep our mind focused on the essentials: on empowering each branch of government to fulfill its specific role. And you will never fix the House unless you fix the accountability and representation of Congressmen to the People.
Which is why, although some House expansion is better than none, I caution against half-measures on this issue. Compromises like “The Wyoming Rule,” which propose expanding the size of Congressional districts to that of the smallest state (currently Wyoming, at ~550,000 people), don’t fundamentally fix the issue of accountability or representation. Although this would add around 170 Congressmen and improve the imbalance in representation between the States (which affects as well the electoral college), it would do little to nothing to improve the accountability of Representatives to the people in their districts. District size would still be far too large, and Congressmen would still be easily bought off. I don’t know the precise district size you’d need to have in order to control this problem – some statistician could probably figure it out – but it needs to be small. And absent some statistical analysis proving otherwise, I’m inclined to support the number that the Anti-Federalists felt was the maximum: 50,000. It’s a large number even for a town, but not an unwieldy one. It’s still small enough that the demographics within the district will be similar, and outside money won’t completely dominate its elections. The representatives will be part of the neighborhood, accountable to who they were always meant to be: the People.
Which brings us to the problems with the other branch of the legislature: the 17th Amendment, and the direct election of Senators into the Senate.
Most Americans do not realize that up until 1913, the people of a state didn’t vote for the Senators; this was the purview of the State Legislature. Although the idea of direct election was argued at the Constitutional Convention by some more extreme federalists, including Madison and Hamilton, it was successfully opposed by moderates within. If you think, however, that the support of these great minds is an automatic endorsement, keep in mind that these individuals were arguing for a powerful Federal Government under the pretense that it would be less oppressive to the citizens of this country than the States. We have 250 years of history showing this argument was entirely wrong. The decline in individual liberty has directly followed the increase in Federal power.
But really, none of this is surprising; it was always counter-intuitive that distant authorities would be more accountable and represent the public better than local ones. It’s why their idea was defeated. Others argued persuasively that the States would be trampled on without some voice within the Federal Government; even the later 10th Amendment, with its firm statement that “everything not explicitly assigned to the federal government is reserved for the States,” did not give the States a mechanism to enforce this right outside of the courts. Which is why the State Legislatures (the States) were given their representation in the Senate. Senators could block legislation expanding the Federal Government, and would give the State Governments a voice in federal policy. It was a consequential check-and-balance in the system, which for 125 years prevented the Federal Government from centralizing power and trampling on the rights of the states.
The 17th Amendment destroyed all of that. We destroyed all of that, because our insistence that we should be able to vote for Senators ourselves destroyed the main way states could preserve their sovereignty against a Federal Government otherwise granted more authority by the Constitution. I know it’s a difficult pill to swallow. Nobody wants to be told the problem is one of their rights. Trying to convince people “you shouldn’t be able to vote for Senators” sounds like less democracy, not more. And in most respects they’re right – it is. Under the old system, you’d still have some degree of influence because you’d be voting for the State Legislators who would be voting for the Senators; an indirect vote, if you will. You wouldn’t be entirely disenfranchised; maybe you’d even take your State elections seriously again. I know it’s still a sacrifice – but it would be worth it. Because the consequences of your right to vote for Senators is ultimately the lack of liberty in pretty much every other domain of your life. The only thing powerful enough to stop the Federal Government from taking control of everything are the collectively empowered States. Like the checks among the different branches of the Federal Government – Senate, House, Presidency, Judiciary – the different tiers of our nation’s government (Federal, States, Local, and the People) are meant to check each other too. It’s these checks that make the system function without excess corruption and incompetence. It’s these checks that kept our country free. It’s not a coincidence that as we’ve degraded them, the rot has set in.
As we know from our historical review of the various structures of the United States, this isn’t theory. It happened – and it happened almost immediately. The repeal of the 17th Amendment set the stage for a massive expansion of the Federal Government; within 25 years, the power structure within the country was completely transformed. As we discussed, after the Civil War the Federal Government had more authority, but for nearly 50 years it was still relatively small because any attempt to expand it at the expense of the states was blocked by the Senate. It remains a peculiar twist of history why the Senate ultimately voted to change who elected it: perhaps the incumbent Senators thought they’d have a better chance of getting elected by the public, or perhaps some banking interests who wanted the Federal Government expanded had some conversations with them behind the scenes. Regardless, the point is if we want to cut the size of the Federal Government and want more decentralization, we need to return the right to select Senators to the State Legislatures. We need to give the States back their voice in Congress to defend their prerogatives. Otherwise, it is inevitable the Federal Government, given supremacy by the Constitution, will subsume their role.
I think people would feel differently about giving up this right if they understood more that the Senate was never meant to represent the people – that the people of the country were meant to be represented by the House. It’s why the House was given control over appropriations (it’s the People’s money), while the Senate – which was made to represent independent states – was given control over confirming executive and judicial appointments, and ratifying international treaties. I understand, of course, people don’t feel represented by the House right now. But that’s why reform of both branches of Congress is so essential, and should happen concurrently. We need to give the people back their voice in the House, and the states back their voice in the Senate. Right now, we don’t really have a voice at all – our representation in both branches is an illusion. Many Congressional districts today have more people in them than a number of states. To give you an idea of our non-existent representation from a historical perspective, just one of these modern districts holds more than 30% of the population of the United States when the Constitution was ratified. And that’s just the House. Your Senators, typically representing millions of people over 6 year terms, represent you even less. They are too far removed from you electorally, and there are just too many of you for them to care. But if they were accountable to a few hundred people in the Legislature for their political future, fewer people would hold their reins; they’d have to listen a lot more. Handlers and lobbyists wouldn’t have the most control over them; your elected State Representatives would.
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So let’s recap.
We’ve reviewed the history of the United States and the various structures that have comprised it over time. We’ve noted that the growth of the Federal Government was an inevitable feature of the various laws and Constitutional Amendments passed and ratified; the most significant of which occurred in 1913, ushering in our current era of federal overreach. Therefore, in order to return to an iteration of the last structure of the United States, where states and localities run more things and the size and power of the Federal Government is constrained, we need to address the following issues:
1) Money. You can’t have a small federal government when it has the ability to run up near infinite amounts of debt and tap into the income (and future wealth) of the entire country. This means repealing the Federal Reserve’s charter (and likely making an amendment so no such bank can ever exist again), and repealing the 16th Amendment, which instituted the National Income Tax. The nation’s currency should be backed by real value (gold or commodities), and Federal Government should be raising revenue solely from how it did the first 150 years of its history: excise taxes (sales taxes on specific items) and tariffs (which have the added benefit of developing domestic industry).
2) Jurisdiction. The Interstate Commerce Clause was written so that the Federal Government could act as an intermediary in trade disputes between the states. Now it has become a weapon to expand federal jurisdiction into everything. If two people shoot each other in Missouri and the bullets came from Nebraska, that’s now a federal crime. This “regulation of commerce” has not just expanded the government’s criminal jurisdiction, however; it is the basis of all federal regulations today. Fortunately, this is a relatively easy fix; what was interpreted by the court’s one way before, could be interpreted another way now. Perhaps there is language that could be written to further restrict this broad interpretation of the clause, but I’m not a lawyer and won’t attempt it. It’s enough for now to know that most of the New Deal agencies and nearly every government expansion that has followed were produced under this legal pretense.
3) Representation. This is the one we have spent the most time on, because all things flow from Congressional power. It means returning true representation to the people in the House of Representatives by ratifying Article the First, which would cap congressional district sizes at 50,000 people, and it means repealing Section 1 of the 17th Amendment,* which would return the right to elect / nominate Senators to the State Legislatures. These reforms would ensure the people of this country really have a voice in Congress, but also that the states do as well; their interests being a natural check on the federal government.
*(Section 2 of the 17th Amendment provides for the temporary appointment of Senators by the States in the event of a vacancy. This is an improvement over the Constitution’s initial clause, which gave this right to the President)
Nothing will ever look exactly as it did before, nor should it. While this will shrink the size of the Federal Government, it’s unlikely we will ever go back to quite as small a government as we once had. The military and intelligence investments of the modern United States might shrink, but not so substantially as to return us to an isolationist attitude. We still have oceans separating us from our enemies, but they mean a lot less than they did a century ago. Modern warfare is asymmetrical and hybridized; it includes finance, education, propaganda, trade, viruses, weather, migration, cyberattacks, and industrial espionage – with more vectors in the decades to come. No part of the world is safe anymore. And we have serious global rivals in countries like China, who are all too happy to test our limits.
But we can’t let perfect be the enemy of good. If we can tackle these reforms, we will return a lot more liberty and prosperity to the people. And I think we will be well on our way to getting our country back.
Thanks for reading.
There are other reforms I’ve thought about for the country, but I didn’t want to include them in the main part of the essay because I thought they were a distraction. They don’t have anything to do with the size of the federal government and governing structure of the United States. Accordingly, they’re perhaps less important; some may even come across as silly, small, and/or unrealistic to people. Also, while I am convinced they are all positive changes, I am not convinced they all need to be added on a constitutional level; putting aside the practical difficulties of ratification, I am honestly wary of too much tinkering with the bedrock of our nation’s laws. Even little constitutional changes can affect the country in profound ways.
But since this is my book and I have your attention still (I hope), I’m going to use the opportunity to at least put them out there. Some will be uncontroversial; others perhaps very. These considerations are based on some other salient concerns of the Anti-Federalists, as well as observations of my own: two additional changes with Congress, one with the States, two more with the Judiciary, and finally two with Nationality.
The first constitutional reform with Congress is already discussed often: term limits. I think it’s reasonable to cap the amount of time someone can serve at 12 years in each branch of Congress; two terms in the Senate, six in the House. Fresh blood and perspectives in government are good; I think we are all tired of career politicians, and would like the people in our government to spend more time doing “real” things in the private sector too. Of course, you can in theory disempower “statesmen” by restricting the time people can spend in a political position, and it’s true there are benefits to long political experience in making the government run smoothly. But if someone is actually good, you would imagine they would end up in other political positions: a Representative after serving his tenure would get elected to the Senate, or run for State Senate, or serve in the President’s cabinet, etc. We are a big country with plenty of roles. 12 years in a given branch of Congress is plenty, and it mitigates the development of entrenched power and corruption.
The second constitutional reform with Congress is only somewhat talked about, and that has to do with the representation in Congress of territories. People in Washington, DC particularly get upset about this, as you can see with their amusing license plates stating “Taxation without Representation.” But they are mostly right about this. They are citizens of the United States, and should have a voice in Congress (they currently have a non-voting Representative, but what is a voice without a vote). Where they get it wrong, however, is insisting DC should become a state. DC is not a state – it is a Federal District, and was carved out of Maryland in the first place so it wouldn’t be a state. Accordingly, they should have no vote in the Senate. But as Americans they should still have representation in the House, because the House exists to represent the people. And assuming an Article the First expansion of the House, the same should apply to citizens of other US territories. These territories are too small (with the exception of Puerto Rico) to become states, but their inhabitants are still Americans, and should have representation in the branch of Congress that was designed to represent them.
These territories should also accordingly have a vote in the Electoral College based on their Congressional representation. This would mean getting rid of the Amendment giving DC three electoral votes, which was a weak and limited compromise based on the problems I’m addressing now. Washington DC (and all territories) should instead have as many electoral votes as it has Representatives. Interestingly, with 50,000 person districts under DC’s current population, it would still end up with approximately the same number of votes as Wyoming (the smallest state): Washington, DC would get 14 electoral votes for 14 Representatives; Wyoming 14 electoral votes for 12 Representatives and 2 Senators. And as the city grows, so would its Representation and electoral vote.
Then we have a reform with the States, which may or may not need to be Constitutional. This incidentally also affects Congress, because it has to do with state size. Currently, nearly every state ranges from ~500,000 to ~13 million people in fairly neat progression. It’s a big range, but it’s pretty much filled without gaps; most states have between 3-8 million people. But there are four glaring exceptions to this rule: California (~38 million), Texas (~29 million), Florida (~21 million) and New York (~20 million).
You often hear complaints from people in large states that they don’t have the Representation that they should in Congress. Part of this is because of what we discussed before: the House is broken because of the district size cap; larger states’ Congressional districts are consequently often larger by hundreds of thousands of people than smaller states. But it’s also true that the disparity in state representation is somewhat unfair in the Senate too. While some population variance is to be expected among states and was indeed part of the compromise within the Constitution between small states and large ones to begin with (small states were protected because each state had 2 senators; large states had more people and thus more representation in the House), we currently have a ridiculous 80-1 difference in size between our largest and smallest state. It’s a lot. That doesn’t mean larger states should have more senators – this would be impossible anyway, as changing the number of senators per state is one of the few parts of the Constitution that is explicitly unamendable. But it does mean that states of a certain size should have the right to split.
I’d make the number 20 million, so this process doesn’t get out of hand. It should also be explicit that (assuming similar population when this is put forward) California should be given the right to split into 4 states, Texas 3, and Florida and New York 2. This doesn’t mean they *have to* split, by the way. But it should be an option provided to the state so long as it meets the population requirements, either through a vote in their legislature or by referendum. This is fair not just from a representation standpoint but also from the perspective of effective, decentralized governance. The truth is that when a state gets too large it starts to become corrupt and unwieldy; the smaller the state the better the representation.
Of course, how a state should split apart is a significant question. It would have to be divided into comparably sized populations (no more than say a 60-40% split), along cultural, county, and geographic lines (perhaps the State Legislature or some commission would propose the change, with the border counties and even Congress having a say). I won’t get into the details of this because this proposal is mostly to open the conversation on this question. But people who are afraid this reform will produce a lot more “liberal” states are mistaken – if not a wash, it is likely the opposite will occur if anything. Southern California (beneath LA) and especially Central Valley are conservative and would both be natural cultural and geographic locations for separate states along with naturally liberal Los Angeles and the Bay Area. So you’d get a political split there. Same with New York assuming it were split logically, with Manhattan and Upstate comprising one half, and Staten and Long Island the other (that’s a 50-50 split in the population).
But regardless of the details, allowing these splits to take place is nevertheless fair. It’s pretty crazy when you think about how large California and Texas in particular are not only in population but geography, and yet how they are each only one state. Boundaries that made sense at one point in history don’t make sense in another. When a state grows like that, it shouldn’t have to get the consent of 3/4s of the other states to split; there should be an automatic mechanism for change. However, if all of these changes are too much to institutionalize, simply getting permission for these splits from the rest of the nation would be acceptable to me.
The two constitutional changes to our Judiciary are brief. The first is to set as 9 the number of judges on the Supreme Court. This has been custom for well over a century already, but too many times Presidents have considered “packing the court” when the Supreme Court opposes their measures. FDR tried to do it in the 30s and even just in 2022 Democrats were toying with the idea of it again (now they are considering 18 year judicial term limits, which I also don’t support). However, I do agree judges have way too much impunity; they can in practice overrule anything the executive and legislative branches do, and there is no recourse. It was a concern many of the Anti-Federalists incidentally brought up 230 years ago: rule by judges. Right now, only in the event of criminal activity does the Constitution provide for the impeachment of a judge, by a majority in the House and removal by 2/3rds in the Senate. But the legislature writes the laws, and should be able to get rid of a judge for any reason whatsoever, even if just for ruling in ways they don’t like. Which is why I’d make it so that a 2/3rds vote in each branch of Congress can remove any judge under any circumstances. In practice that’s a substantial hurdle in a divided country, but it puts the Judicial branch on notice that other branches of government can remove them if they become too partisan or go off the deep end.
Finally, we have the reforms to nationality, which may or may not need to be Constitutional in nature. The first is one I know is very popular in our movement: the end of Birthright Citizenship. This is one of the most absurd laws we have in this country – we may be the only country in the world who does it. Somebody who crosses into the country illegally and/or doesn’t live here and has nothing to do with America can make their child a citizen just by having a baby here. It’s insane. Especially in the age of flight. It’s like if someone happened to sneak onto your property to deliver their baby, that afterwards the baby had just as much right to live in your house as you. And of course, the baby needs their parents, so they get to stay too. I don’t get it, and I don’t think any reasonable person gets it either.
Fortunately, this may not need even a law to change, as the very basis of Birthright Citizenship is subject to differing interpretations of the 14th Amendment (the section meant to naturalize slaves as citizens, which has been twisted to include anybody born in the country, even if illegally). However, I think even a reinterpretation of the 14th Amendment by the Supreme Court is not enough, because this reinterpretation doesn’t address tourist or other temporary visa “anchor-babies” which is in my eyes basically the same thing as granting birthright citizenship to an illegal. If you came to sightsee NYC when you were 8 months pregnant and had a baby here, that baby shouldn’t become a US Citizen. It boggles the mind why we even have to have these debates.
The last reform to nationality is going to be more controversial, however, and that has to do with dual citizens. First, I want to say I don’t have any issue with people holding dual citizenship. I admit in principle I don’t love the concept – I think citizenship is precious; if someone gets it, it should be because they have fully committed to that country. I like monogamy when it comes to citizenship. However, I understand in practice this is not how the world works – citizenship gets you restriction-free residency in places, various financial protections, and it’s one of the only ways immigrants can spend time visiting their native country without going through a crazy visa process all over again. In my ideal world, citizenship would be hard to get and residency easier, but my ideal world isn’t the world. So I get it. And I know there are a lot of dual-citizens in this country. My wife and children are some of them. My best friends are some of them. So I’m not speaking from the perspective of someone without empathy, or skin in the game for that matter.
But I don’t think dual citizens should be able to hold public office or cabinet positions. I think it’s a security risk, especially at the federal level, where foreign policy decisions need to be deliberated. If you want dual citizenship, get it. But dual citizenship implies some level of dual loyalty. You shouldn’t be able to make decisions for the nation if you have it.
Anyway, good luck getting many of these passed now. But every idea starts with a conversation. And I hope at least these ideas spark a few of them.
-Pat Stedman
Fort Dix Federal Correctional Institution
