932                                  ARIZONA LAW REVIEW                                     [Vol. 31

years.¹⁵⁷

This shift in power seems contrary to the objectives of the Framers that called for a balance of power between the states and the federal government. Initially, the Framers gave the states the ability to resist encroachment by the federal government and to maintain the balance of power. This purpose is well stated in The Federalist No. 51 where Madison set forth the benefits of the separation of powers doctrine:¹⁵⁸

But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachment of the others.

Later in The Federalist No. 51, he applies this principle directly to the relationship between the federal and state governments:¹⁵⁹

In a single republic, all the power surrendered by the people is submitted to the administration of a single government; and the usurpations are guarded against by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.

By dividing the power between governments and separating the functions of each, "a double security arises"¹⁶⁰ to protect the civil liberties of the people. To achieve the division of power, the Framers provided the states access to the federal government by granting the state legislatures the right to elect senators. As stated in The Federalist No. 62, this right was to "[give] to the State governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems."¹⁶¹

This argument suggests that the Garcia decision, which holds that state sovereign interests are more effectively protected by the federal political process than by constitutional or judicial limitations, is reasonable provided the Framers' original linkage is intact. If the seventeenth amendment had not been passed, then the states would have had fewer complaints about the passage of a law that affected their interests since they would have had direct influence over the political process which passed it. Additionally, even if Congress passed a law objectionable to the states, the states would have had a greater ability to influence the choice of judicial candidates. This increased ability would have created a more favorable climate in the federal judiciary improving, therefore, the probability that the federal judiciary may strike down an objectionable act. As such, the federal political process is still the correct mechanism to address today's complex problems and, in particular,

Previous < 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 > Next 

157. REGULATORY REFORM, supra note 11, at 26-33.

158. THE FEDERALIST NO. 51, at 160 (J. Madison) (R. Fairfield ed. 2d ed. 1966).

159. Id. at 161.

160. Id.

161. THE FEDERALIST NO. 62, at 182 (J. Madison) (R. Fairfield ed. 2d ed. 1966).

Previous < 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 > Next