Constitutional Drift & The Bingaman Syndrome

Constitutional Drift

The Evolution of the Independent Senator

The Bingaman Syndrome

By Stephen L. Wilmeth

    Delegates to the Constitutional Convention in 1787 found themselves at such an impasse it threatened to shatter the proceedings.  In fact, the impasse from the debate of how to structure representation amongst the states took up fully half of the four months of the proceedings. 

     The first plan proposed was to have two chambers of government consisting of representatives based on the populations of the states.  That plan was rejected by the small states.  They worried that their voices would be lost by the domination of the bigger states.

    The next idea put forth was for the establishment a single body.  In that approach, each state would have equal footing regardless of population.  The big states objected.

     Finally, another idea evolved and was presented.  In that approach, two houses of Congress would be established.  The House was to be established on representation based on population.  The second chamber, the Senate, would allow equal representation.  In this approach, the small states would have equal representation in one of the chambers while the other would recognize the population differences amongst the states.  The idea gained acceptance and it was adopted at a midpoint in the proceedings in July, 1787.

     The Genesis of the House and Senate

     A study of the Convention is very important.  The representation idea that was adopted did not come from conventional wisdom in the minds of delegates when they walked into Convention Hall.  It came from debate and study.  At some point, two delegates conceptualized the compromise.  It was the balance that both sides could accept.

     It quickly moved the debate to how the representatives would be seated.  The House of Representatives would be selected by their constituency within home districts.  Those individuals would be judged for their actions directly by their electorate.

     The House became the rightful conscience of the people with direct oversight from the home districts.  The Representatives were put on a tight rein and had to fess up to their actions every two years.  If they didn’t do their job a replacement was sought.  The House became a good conduit to usher in new leaders, new insight, and new energy.

     On the other hand, the concept of the Senate came from the little states that demanded equal defense of their rights.  As such, the seating of the senators came not from the populations of home districts, but by the state legislatures.  The people of the states had elected the legislatures to carry out the business of the state thus it was the responsibility of that collective body to make sure the senators were acting in the best interest of the state in federal matters.     

     The Senate, with two chosen representatives, was to bridge the more complex interactions between the states and within the federal union.  The senators were given more latitude and six year terms.  Debate and strategy were important in this chamber just as it had been in the Constitutional Convention.  It was the place that seasoned leadership and proven state loyalty were needed.     

     The lesson was profound.  The system was self regulating and provided embedded checks and balances.  The idea was brilliant.

     The Progressive Wave Arrives

     For 126 years, those foundational guidelines were honored.  The process was not always flawless, but the independence of the states and the rights of those states were generally maintained.  The representatives of the House of Representatives fought the good fight for the people and the Senators upheld the sanctity of states’ rights. 

     When the Wilson dominion of enlightenment arrived, three actions of major implication occurred.  The first was the overt act that started the process of redistribution of American wealth with the adoption of the income tax.  The second was adoption of the Seventeenth Amendment overhauling the methodology in which senators were elected.  The third was what we now know as the act of official “embarrassment and proclamation protocol” to the world for American actions.  It was Woodrow Wilson who so dreaded the likelihood he would have to defend himself to the world for the actions of Texas and its renegade pack of Rangers during World War I if German sympathizers were encountered and engaged on the Mexican border.  That seemed to alarm him much more than the need to defend the sovereignty of American lands.  He was the first of the grand defenders of world opinion in the face of American actions.

     The ill founded 17^th Amendment

     The Seventeenth Amendment accelerated the erosion of state’s rights.  The insistence by the little states to tie the senators tightly to state allegiance was replaced by the very system they feared and rejected in 1787.

     No longer were Senators tied to state legislatures.  The whole approach to reelection was changed.  Think about it . . . the mechanism built into the system to assure that senators would defend their states no longer existed.  Influencing the decisions of state legislatures for reassignment was much different than influencing voter blocks to win elections.  A new age arrived.

    The Dona Ana Phenomenon 

     A case study of the loss of senatorial allegiance can be raised with Senator Jeff Bingaman (D-NM).  In the 2006-2010 Dona Ana County, New Mexico fight against his bill S.1689, the Organ Mountains – Desert Peaks Wilderness Act, it became apparent that the senator was no more obligated to acknowledge local opposition to the legislature than he was to defend his fiduciary negligence to state of New Mexico.  His action to conditionally limit growth of Las Cruces in expansive NCA designations would have forced future valley development from New Mexico into Texas.  It is little wonder that El Paso praised his actions, but he welcomed that city’s support to his actions.     

     History will show that the bill was ultimately deflected in 2010 by the same phenomenon that created the November election revolt.  Americans got tired of the onslaught of the environmental agenda.  Harry Reid and Jeff Bingaman found the appetite for an endless cavalcade of environmental wishes to be waning in the closing days of 2010.  They ran out of time and clear support to get S.1689 through.

     The Bingaman Syndrome

     The actions of Jeff Bingaman are historically significant.  Would he have acted like he did in disregarding widespread opposition to his bill before 1912? There is growing speculation that he would not. 

    If we acknowledge that the debate leading up to the action of the Constitutional Convention was valid, we must recognize that the issue demanded by the little states was railroaded in the adoption of the 17^th Amendment.

     If that is true, we must now revoke the idea we are a representative republic.  What has happened is that we have conceded the ability of the states to control the actions of their promised vested senatorial representation.  The states are operating without a toolbox of authority.  In the case of New Mexico, it is a state that has depended increasingly on the federal government for major revenue transfers.  It must support the actions of progressives for its existence.     

    What is more alarming is that we have allowed the development of special interests, and specifically the environmental movement, to become equal in stature to our governing bodies.  Senators today are not obligated to defend the economic wellbeing of their state.  Congressional representatives still exist in the framework of the founders, but their independence is being constantly challenged by a paradigm that has the ability to drift and schmooze across voting and funding blocks to assure reelection.

     In New Mexico and other states, the new power isn’t the original conscience of the people, the House of Representatives.  It isn’t the state legislature that was assured of its place at the federal table by the founders.  The new power is the exact thing, albeit a different name, that the little states feared and rejected. The new broker is the powerful environmental movement that has displaced the dominion of the states, intercepted the loyalties of the Senate, and continues to reengineer the system to fit its agenda.

     To the Future

     The revocation of the 17^th Amendment is desperately needed.  If Senator Bingaman had to step to the podium in Santa Fe in the months leading up to his past reassignments to the senate would he have been supported by the state legislature?  He would have had to defend his unconditional support of the environmental agenda rather than his conditional support for the state of New Mexico.  He would also have to address such actions that would have resulted in fees and revenues being transferred to Texas rather than any vigorous fight to expand those revenues in New Mexico.  No, it is unlikely that he would have been patted on the back and sent back to Washington if New Mexico enjoyed the rights, privileges, and authority envisioned by the founders. 

     We have been taught a completely erroneous hierarchy.  The sovereignty of the American citizen is both the pinnacle and the two cornerstones of our system.  The next step inward, not upward or downward, is the state. The final step inward, now upward or downward, is the federal government. 

     If powers are distributed correctly, the federal government should be the mechanism of balance which was discovered at the Constitutional Convention in 1787.  It is only from that balance that the rights of the individual are assured . . . the environmental movement has no such rights.

Stephen L. Wilmeth is a rancher from southern New Mexico.  “New Mexico senatorial leadership did us a world of good in the debate of S.1689.  We know where we stand in their intended actions, in their loyalties, and their view of our existence.  We had only the sovereignty of the individual in our arsenal of defense.  As long as that was not taken from us, we had the chance to prevail.  The November midterms did the rest.” 

THE WESTERNER sez:

Our Founding Fathers believed in checks and balances - not only between the Executive, Legislative & Judicial branches of the federal government, but also between the feds and the states.  They instituted a system of dual sovereignty whereby certain enumerated powers were ceded to the feds and all other powers were retained by the states.  With the state legislatures electing the Senate, the Electoral College electing the President and the 9th and 10th amendments in the Bill of Rights they thought they had locked in the appropriate checks and balances on the feds...and they were wrong.  The history of our Country has been the continual acquisition of power by the feds at the expense of the states and the individual.

I concur with Wilmeth's opinion on the 17th amendment, but at least it was adopted according to the procedures of our Constitution.  With the rise of the "living Constitution" changes are being adopted by five or more politically connected lawyers (otherwise referred to as the Supreme Court) without the approval of the national legislature, the states or the people. Furthermore, we have a curious situation where one branch of the federal government referees disagreements between the feds and the states; i.e. the feds have claimed a monopoly on determining any limitations on their power.  You can see how that has worked out.

Some states are now resurrecting the concept of Nullification, which was introduced by Thomas Jefferson and James Madison, and which challenges the fed's monopoly on interpreting the constitutionality of laws.  I wrote about this in the May issue of the New Mexico Stockman and I include that column in the next post.