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05/24/2018

John McGinnis on Populism and Federalism
Michael Ramsey

At Liberty law Blog, John McGinnis: To Restrain Populism, Revive Federalism.  From the beginning:

[T]here is no doubt the Framers designed the federal government to have more elite elements than the state governments of the time.  The Electoral College was structured to filter the popular will to elect individuals of substantial preexisting reputation.  The Senate also was indirectly elected and its long terms made it more likely that the wealthy would serve. The judiciary was the redoubt of the learned profession of lawyers, representing the cognitive form of elite that was rising in importance in the Framers’ day and has become dominant in our own.

States, in contrast, could be reservoirs of populism. In the critical period between the Articles and the Constitution, they had in fact often reflected populist policies. The Constitution was designed to counteract their worst excesses through giving the more elite federal government power over such matters as interstate commerce and the federal judiciary some control over such matters as the abrogation of contracts. But our system of dual sovereignty assured that populism still had a role to play in the many areas where no institution of the federal government was given power.

And in conclusion:

With the rise of populist figures as ideologically diverse as President Donald Trump and Senator Bernie Sanders, we may well be now witnessing the backlash against the elite element of government that comes from the excessive reduction of the Constitution’s popular element.  If so, the remedy for populism is not to stamp it out, but to restore the elements of our original Constitution that gave it greater play. We need a constitution that will bend to populist winds so that it will not break.