BY Jemille Q. Duncan
Dec. 26, 2023
Let’s say you operate a marijuana dispensary in Colorado or New Jersey, where it’s legal to sell recreational weed. You might expect, after cutting through all the red tape, getting your license, and hanging out your shingle, that you would be able to just conduct your business like any other business in the state.
You would be wrong. In 1970, the U.S. Congress passed the Controlled Substances Act, classifying marijuana as an illegal substance. This Act is still on the books, which means dispensaries can’t deposit their proceeds in banks because they’ll be seized by the federal government. After all, weed — and, therefore, money made from selling weed — is still illegal under federal law, despite several states legalizing marijuana.
This is what happens when Congress assumes control of issues ordinarily regulated by states.
The Founding Fathers aimed to avoid this situation by giving states representation in the federal government through the Senate, thereby allowing states the opportunity to block legislation that would encroach on states’ sovereignty. Voters would directly choose their representatives in the U.S. House of Representatives, and members of state legislatures would choose their representatives in the U.S. Senate. As James Madison wrote, “The House of Representatives will derive its powers from the people of America … The Senate, on the other hand, will derive its powers from the states.”
But, in 1913, we ratified the 17th Amendment, making the Senate elected by popular vote. As a result, the Senate no longer represents the states. The Senate represents the populace of the states — no different than a state’s congressional delegation to the House.
Besides duplicating populace representation, states lost their only structural check against federal encroachments, leaving no protection for states. Was the 17th Amendment for the better?
The term “states’ rights” has a dirty connotation. During the Civil War, Confederate states argued that the federal government couldn’t abolish slavery because it would encroach on states’ right to have slaves. This made “states’ rights” forever associated with Southern racism.
That, however, is an oversimplification of states’ rights. There are many instances in which state control can be beneficial: Marijuana legalization, cash bail reform, environmental regulations, increased minimum wage, voting rights, and the like. But with majoritarian movements that opt to federalize non-national issues, the nuanced benefits of state sovereignty get lost.
Now, to be sure, this is not a Republican or Democratic issue. I’ve written before about how Democrats and Republicans both govern with a preference for states’ rights and local control — it’s just that only one party is honest about it. But make no mistake, both parties do it, and whether that’s beneficial is not a partisan question. It’s a structural question about how national and local governments interact.
The 17th Amendment was a response to corruption from early 20th-century party machines and state legislature elections becoming proxy U.S. Senate elections: People were voting for state legislators based on who the legislators would choose for the Senate. The Amendment successfully dispensed with state legislature races becoming referendums on the U.S. Senate, but corruption in senatorial elections persisted.
For example, before becoming President, Lyndon Baines Johnson was a Senator from Texas. He ballot-stuffed his way to victory in his primary election, which was common in the 1940s when he first became a Senator. So, in effect, the 17th Amendment did not end corruption in Senate elections; it just shifted the corruption from the state legislature to the ballot box. And while doing so, it destroyed the only institutional protection against federal encroachments: Senators being agents of state legislatures.
Now that senators are popularly elected, protecting their respective state’s right to govern is a peripheral concern. Their main objective has become to tend to the majoritarian interests of the people in their state. But representing the people is supposed to be the province of the House of Representatives.
Senators whose role was intended to be state-sponsored institutional guards now couldn’t give a whit about their state. We’ve seen the fruits of this in how Congress eats away at states’ power.
Agriculture is ordinarily a state matter, but Congress passed the Agricultural Adjustment Act of 1938, allowing the federal government to regulate crops people grow in their backyards. Congress also passed the Brady Handgun Violence Prevention Act, forcing states to enforce federal background-check laws — that’s like writing a cake recipe and ordering your neighbors to use their groceries to make your cake. (The Supreme Court later ruled that “state legislatures are not subject to federal direction” and overturned that Act. More on the courts later.)
Without representatives of state legislatures in Congress, the only institution left to protect states’ interests is the courts. (This may explain states increasingly fighting Congress by passing laws that violate federal law to provoke a lawsuit.) But courts are wishy-washy. In fact, courts are the reason Congress has the authority to limit what we grow in our own yards. In Wickard vs. Filburn, the Supreme Court upheld the Agricultural Adjustment Act of 1938, ruling that Congress could regulate homegrown wheat. If everyone grew wheat, the Court reasoned, no one would buy bread, hurting the national market for bread.
Thus, homegrown crops like wheat (and, later, weed) are not a local issue. What you grow in your yard is a national issue. (In another column, I explain why the Court was wrong.) The Court effectively gave a blank check to the federal government to regulate anything affecting national markets (or “interstate commerce”). As a result, people elected to Congress from Idaho get to tell Pennsylvanians what we can grow in our yards. Ridiculous. Suffice it to say that the courts are unreliable defenders of states’ authority.
If the Senate were still accountable to state legislatures, one must wonder whether senators would entertain legislation like the Agricultural Adjustment Act of 1938. Senators have little incentive to give away their state’s authority when they answer to their state. But they no longer answer to their state, and many senators don’t even pretend to care about preserving what states control.
Going forward, we should avoid adding to the list of states’ powers assumed by the federal government. Admittedly, cases like Wickard vs. Filburn have created a behemoth of a federal regulatory scheme. If we tried undoing it, we’d wave goodbye to the Bureau of Consumer Protection, the National Transportation Safety Board, and the Department of Commerce, among other entities. Much of it is too late to undo. But we should not add to the list of issues swept from states.
So, pause and check yourself before advocating for national action. Ask first whether it’s a local issue. If it is, you should understand that, by advocating for federal control of a local issue, you’re ceding your own power and influence as a voter in your state or municipality to a national legislature where your voice and vote will be dwarfed by millions of others. Not to mention, you’re giving your senators license to abandon the actual intent of the Senate: Protecting state interests.
Jemille Q. Duncan is a public policy professional, columnist, and Gates Scholar at Swarthmore College.
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