Repeal of the Seventeenth Amendment:
A Step Toward the Restoration of Federalism in America

by Virginia M. McInerney

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A.   Founders’ Intent

    1.   Constitutional Convention Debates

An examination of James Madison’s notes of the debates of the Constitutional Convention reveals pertinent information about the method of senatorial election. Of the fifty-five delegates who attended the convention, fifteen contributed to the debate concerning the method of electing United States Senators. Thirteen of these delegates expressed the belief that Senators should be elected by the various state legislatures. Careful study of these debates reveals three main reasons the founders believed this to be the most appropriate method.

One of the chief reasons was that the delegates felt it was imperative that the states as states have a certain degree of representation in the General Government. The basis for this was predicated upon the nature of the relationship this new Constitution would establish between the General Government and the state governments. The General Government would derive authority from the citizens of the United States and the states to wield power over certain objects that affected the nation as a whole. State governments would continue to derive authority from their respective citizens to wield power over objects enumerated in their state constitutions. A distinction between the spheres of jurisdiction in which the different governments should operate was therefore created.13 Madison’s convention notes reveal the following analogy given by Mr. Dickinson:

He compared the proposed National System to the Solar System, in which the States were the planets, and ought to be left to move freely in their proper orbits.14

The Founders saw the need to protect the integrity of these distinct areas of jurisdiction. They knew that a national government would not be capable of properly fulfilling all the legitimate functions of civil authority.15 They felt that state representation in the national government would act as a check against usurpation of state power by the General Government. It was believed that a Senate elected by the state legislatures would provide this necessary check. In an explanation of the necessity of instituting this mode of election, Mr. Dickinson cited the exigency of the influence of the states within the national government.

The preservation of the States in a certain degree of agency [within the national government] is indispensable. It will produce that collision between the different authorities which should be wished for in order to check each other.16

He emphasized that barring the state governments from direct participation in the national government would tend toward destructive centralization and accordingly warned:

If the State Governments were excluded from all agency in the national one, and all power drawn from the people at large, the consequence would be that the national Government would move in the same direction as the State Governments now do, and would run into all the same mischiefs. The reform would only unite the 13 small streams into one great current pursuing the same course without any opposition whatever.17

In order to guard the federal structure, it was important that the states be represented in the national government and equally as important that all the legislative power not be drawn immediately from the people. The logical means to accomplish both of these objectives was to allow the state legislatures to elect Senators. This would ensure the federal character of the national government and would be a safeguard against the development of merely a national consciousness devoid of state loyalties.

That the debates over the method of senatorial election were indissolubly linked to the issue of the relationship between the General Government and the state governments is evinced in numerous statements similar to Mr. Dickinson’s. In a discussion over this subject, Mr. Ellsworth said: “The only chance of supporting a General Government lies in engrafting it on that of the individual States.”18 Mr. Pinkney “wished to have a good National Government and at the same time to leave a considerable share of power in the States.”19 Before one of the preliminary votes on the method of election, Colonel George Mason declared that “The State Legislatures also ought to have some means of defending themselves against encroachments of the National Government.”20 Prescribing senatorial election by state legislatures, Mason went on to say:

what better means [of defense] can we provide [the states] than the giving them some share in, or rather to make them a constituent part of the National Establishment.21

In a later discussion, Mr. Pinkney articulated the political maxim that “the General Government can not effectually exist without reserving to the States the possession of their local rights.”22 He considered it imperative that the Senate be a vehicle for protecting the state’s political survival. Continual comments of this nature demonstrate that the Founders unquestionably intended that the Senate represent the states: that their voice in the national government was essential to guard against centralization.

Mr. Sherman believed this so strongly that he even advocated election of the first branch — the House of Representatives — by state legislatures. He believed that direct election by the people would lead to the abolition of the states:

If it were in view to abolish the State Governments the elections ought to be by the people. If the State Governments are to be continued, it is necessary in order to preserve harmony between the National and State Governments that the elections to the former should be made by the latter.23

In view of the unanimous decision that Senators be elected by their state legislatures, it is clear that the Senators were thought of, somewhat, as ambassadors. Mr. Dickinson communicated this when he said that one of the reasons for his motion was “because the sense of the States would be better collected through their Governments; than immediately from the people at large.”24 Senators were to be representatives of their states as states, to guard and protect their respective spheres of jurisdiction. The text of the debates reveal indisputably that this was an important consideration in determining the method of election.

It is important to note that the Founders believed that the people, and not merely the states, should also be represented in the national legislature. Considerable discussion was likewise devoted to the method of electing members to the first branch of government — the House of Representatives. It was almost unanimously agreed that this branch should represent the people directly and should therefore be elected by the people directly. As noted by Mr. Wilson, this would cause the two branches to rest on different foundations.25 The opinion of Mr. Pierce reveals one of the important distinctions between the two branches. He

was for an election by the people as to the first branch and by the States as to the second branch; by which means the Citizens of the States would be represented both individually and collectively.26

This important distinction was very desirable. Mr. Williamson stated: “The different modes of representation in the different branches will serve as a mutual check.”27 It was the Founders’ full intention that the two branches rest on different foundations — the mode of election was the determining factor. Regarding the importance of this distinction, Mr. Madison reported:

Mr. Dickinson considered it as essential that one branch of the Legislature should be drawn immediately from the people; and as expedient that the other should be chosen by the Legislature of the States.28

Mr. Madison himself considered the popular election of one branch of the National Legislature “as essential to every plan of free Government” but he also advocated “the policy of refining the popular appointments by successive filtrations….”29 In other words, he recognized that both direct and indirect elections were desirable modes to utilize: each method served an appropriate purpose.

The next consideration regarding the method of election is related to the ends to be served by the Senate. James Madison summarized these ends as: 1) “to protect the people against their rulers;” 2) “to protect the people against “the transient impressions into which they themselves might be led;” and. 3) to guard against the danger of interested coalitions oppressing the minority.30

It was determined that in order to serve these ends, wise and virtuous men of sterling character would be needed. This issue, as if set apart from the state representation issue, raised a separate question: which method of election was more likely to secure Senators of this caliber? There was much less discussion over this point than that of state representation. There was also less of a settled opinion on the matter. Mr. Gerry and Mr. Pinkney actually distrusted the people’s ability to choose men of adequately high stature. The other delegates who expressed an opinion on this subject were not as severe. Mr. Sherman’s fear in letting the people choose was that they would be deceived by misinformation. He said: “They [the people] want information and are constantly liable to be misled.”31 Mr. Ellsworth and Mr. Dickinson simply believed that the State legislatures were more capable of selecting seasoned statesmen.32 In a discussion on the matter, Mr. Ellsworth commented:

Wisdom was one of the characteristics which it was in contemplation to give the second branch. Would not more of it issue from the Legislatures; than from an immediate election by the people.33

In addition to this issue which affected all the ends summarized by Madison, the first one — that of protecting the people from their rulers — was specifically addressed. Mr. Madison noted:

An obvious precaution against this danger [betrayal of the public trust] would be to divide the trust between different bodies of men who might watch and check each other.34

So, the Senate, being comprised of representatives of the states; and the House, being comprised of representatives of the people directly, were to act as checks against one another.

It was generally agreed that in order for the Senate to meet the second end summarized by Madison — that of protecting the people from “the transient impressions into which they themselves might be led,” — the Senate must be insulated to a certain degree from the people.35 This notion must not be taken to mean that the Founders mistrusted the people. The contrary was true, but the Founders believed that a check was necessary even upon the people. History proved that nations which instituted a pure democracy eventually came to ruins.36 A Republic which “refine[d] and enlarge[d] the public views by passing them through the medium of a chosen body of citizens”37 was better suited to preserve the life, liberty, and happiness of the American people. An additional check upon the impassioned will of the people was through the use of successive filtrations of representation in at least one branch of the national legislature.38 Regarding this, Mr. Randolph acknowledged

that the general object was to provide a cure for the evils under which the U.S. laboured; that in tracing these evils to their origin every man had found it in the turbulence and follies of democracy: that some check therefore was to be sought for against this tendency of our Governments: ….39

He concluded with this astute observation: “a good Senate seemed most likely to answer the purpose.”40

Election by State legislatures was intended to render the Senate indirectly dependent upon the people, thus diminishing the pressure to comply with transient or arbitrary popular wishes. Mr. Madison made reference to the people deliberating about “the plan of government most likely to secure their happiness,” and said that “they themselves, as well as a numerous body of Representatives, were liable to error also, from fickleness and passion.”41 He then stressed the importance of a venerable Senate stating:

A necessary fence against this danger would be to select a portion of enlightened citizens, whose limited number, and firmness might seasonably interpose against impetuous councils.42

The Senate, therefore, was to be a more deliberate body — one in which the will of the people was given a reflective “second thought.” According to Mr. Madison, “The use of the Senate is to consist in its proceeding with more coolness, with more system, and with more wisdom, than the popular branch.”43 The indirect election of Senators was intended to produce this affect.

Finally, an explanation of Madison’s third point; that of guarding against the danger of interested coalitions oppressing the minority, is found earlier in the debates. Madison presented a brief survey of situations in history when a majority, due to its united force, had threatened the inalienable rights of the minority. He then interposed several remedies and congruently presented the faults of each. He concluded with an elucidation of the only viable remedy, stating:

enlarge the sphere, and thereby divide the community into so great a number of interests and parties, that in the first place a majority will not be likely at the same moment to have a common interest separate from that of the whole or of the minority; and in the second place, that in case they should have such an interest, they may not be apt to unite in pursuit of it.44

The Senate, therefore, having a foundation different from that of the House, was to produce one of those “divisions of interest.” This was to safeguard the government from falling to mere majority rule, apart from government by law, which could lead to eventual anarchy.45 In a later discussion on the matter, Madison posed this question: “How is the danger in all cases of interested coalitions to oppress the minority to be guarded against?”46 His answer was:

Among other means by the establishment of a body in the Government sufficiently respectable for its wisdom and virtue, to aid on such emergencies, the preponderance of justice by throwing its weight into that scale.47

It is evident, therefore, that these two aspects of the Senate — that it created another division of interests and that it was comprised of virtuous men — combined to constitute a Senate which would act as a control upon the evils which may arise when a majority tries, by its mere force, to subject an entire society to its will when that will us unjust. The method of election had definite bearing or formulating a Senate of this nature. Election by state legislatures was the best means to this end.

While these thirteen spokesmen on senatorial election held the same or similar views, there were two delegates who presented contrary opinions. Mr. Read felt that

Too much attachment is betrayed to the State Governments. We must look beyond their continuance. A national Government must soon of necessity swallow all of them up. They will soon be reduced to the mere office of electing the National Senate.48

This notion was not supported.

Mr. Wilson believed that

The General Government is not an assemblage of States, but of individuals for certain political purposes — it is not meant for the States, but for the individuals composing them; the individuals therefore, not the states, ought to be represented in it….49

He moved an amendment to this effect but it was not seconded. His concept that the United States represented the individual citizens comprising it was true. His failure, however, was in not acknowledging the federal relationship of the states and General Government and the need for that relationship to be protected.

Mr. Wilson was also a strong adherent of a more direct fulfillment of the democratic principle.

He wished for vigor in the Government, but he wished that vigorous authority to flow immediately from the legitimate source of all authority. The Government ought to possess not only first the force, but secondly the mind or sense of the people at large. The Legislature ought to be the most exact transcript of the whole Society. Representation is made necessary only because it is impossible for the people to act collectively.50

The other delegates did not support him in this proposition. Though they strongly agreed that the source of authority is derived from the people, they believed that a republican system (in which even that authority is checked) was better suited to the nation’s needs.51

    2.   The Federalist Papers

In addition to Madison’s convention notes, The Federalist Papers, another compilation of the thoughts of the Founders, can be used as a source from which to discern original intent. In Federalist No. 39, Madison explained the combination of both national and federal characteristics contained in the Constitution. One of the national features of the Constitution was the provision that the House be elected directly by the people. He explained:

The House of Representatives will derive its powers from the people of America; and the people will be represented in the same proportion and on the same principle as they are in the legislature of a particular State. So far the government is national, not federal.52

The provision of Senate election by state legislatures. however, was one of the facets of federal character:

The Senate, on the other hand, will derive its powers from the States as political and coequal societies; and these will be represented on the principle of equality in the Senate, as they now are in the existing Congress. So far the government is federal, not national.53

Alexander Hamilton also touched upon this subject. He said that if the state legislatures had not been designated to elect Senators, a misinterpretation of the federal character of government would have been likely upon announcement of and deliberation over the Constitution. This method of election was an “absolute safeguard” for the states and ultimately for the people. Hamilton was not naive. He realized the inherent dangers of senatorial appointments. He acknowledged, however, that potential dangers were slight when compared to the obvious debilitating effects of denying the states a direct voice in the national government. Thus he said:

So far as that construction [election of Senators by state legislatures] may expose the Union to the possibility of injury from the State legislatures, it is an evil; but is is an evil which could not have been avoided without excluding the States, in their political capacities, wholly from a place in the organization of the national government. If this had been done it would doubtless have been interpreted into an entire dereliction of the federal principle, and would certainly have deprived the State governments of that absolute safeguard which they will enjoy under this provision.54

Hamilton thus confirmed that the method of election was the provision which distinguished the Senate as a federal attribute of the Constitution.

In a discussion on the powers of the General Government in relation to the states, James Madison spoke of the desirability of state influence in the national legislature:

The State governments may be regarded as constituent and essential parts of the federal government. The Senate will be elected absolutely and exclusively by the state legislatures.55

He then said that the Senate, being so elected, would “consequently feel a dependence, which is much more likely to beget a disposition too obsequious than too overbearing towards them.”56 Here again, the influence of the states is emphasized in another effort to dispel fears about possible centralization of the national government.

In the main dissertation on the constitution of the Senate — Federalist No. 62 — Madison plainly stated the primary purposes for the method of election chosen by the Founders:

It is recommended by the double advantage of favoring a select appointment, and of giving 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.57

    3.   Historical Publications

During the ratification period of the Constitution, other dissertations on the Constitution were published in newspapers and pamphlets. In 1788, the Delaware Gazette published a letter by John Dickinson (under the pen name “Fabius”) which contained the following excerpt regarding the Senate:

[L]et it be remembered, that it [the Senate] is to be created by the sovereignties of the several states; that is, by the persons, whom the people of each state shall judge to be most worthy, and who, surely, will be religiously attentive to making a selection, in which the interest and honour of their state will be so deeply concerned.58

This statement accentuates the notion that the states had a vested interest in their choice of Senators because the Senators were to protect that portion of sovereignty which remained with the State.

Tench Coxe, a well-known lawyer, economist, and author from Philadelphia, published a pamphlet on the Constitution in 1788 after eleven states had ratified the Constitution. Referring to Senators he said:

They will also feel a considerable check from the constitutional powers of the state legislatures, whose rights they will not be disposed to infringe, since they are the bodies to which they owe their existence. and are moreover to remain the immediate guardians of the people.59

This statement, coupled with Dickinson’s, demonstrates a reciprocity of obligation between the State legislatures and United States Senators. In deriving their appointment from the state legislatures, the Senators were accountable to their states. Concurrently, the state legislatures were all the more obliged to the people who elected them because of this paramount responsibility of choosing their national representatives.

B.   Founders’ Method Affirmed Abroad

Two eminent constitutional scholars, widely read and well respected in America, also concur with these propositions concerning senatorial election: James Bryce and Alexis DeTocqueville. The English statesman, James Bryce. wrote a detailed monograph on the American form of government including the Senate’s contribution to the federal aspect of the national government. He said:

The most conspicuous, and what was at one time deemed the most important feature of the Senate, is that it represents the several States of the Union as separate commonwealths, and is thus an essential part of the Federal scheme.60

He also acknowledged the desirable affect of instituting the two legislative branches on different foundations:

The plan of giving representatives to the States as commonwealths has had several useful results. It has provided a basis for the Senate unlike that on which the other House of Congress is chosen…. It produces a body which is both strong in itself and different in its collective character from the more popular house.61

Bryce next confirmed Hamilton’s expectations. by asserting that the Senate

constitutes, as Hamilton anticipated, a link between the State Governments and the National Government. It is a part of the latter. but its members derive their title to sit in it from their choice by State legislatures.62

Bryce attributed all these desirable qualities to the method of election declaring:

The method of choosing the Senate by indirect election has excited the admiration of foreign critics. who have found in it a sole and sufficient cause of the excellence of the Senate as a legislative and executive authority.63

Alexis DeTocqueville’s conception of the Senate was even more acute. He compared the House and the Senate and believed that the Senate contained men of more distinguished character. He attributed the creation of this distinction to the difference in the methods of election. In his famous book. Democracy in America, he said that the Senate contained

a large proportion of the famous men of America. There is scarcely a man to be seen there whose name does not recall some recent claim to fame. They are eloquent advocates, distinguished generals, wise magistrates, and noted statesmen.64

Then, in contrasting the House and the Senate. DeTocqueville asked why “the latter has a monopoly of talents and enlightenment?”65 Note his answer:

I can see only one fact to explain it: the election which produces the House of Representatives is direct, whereas the Senate is subject to election in two stages. All citizens together appoint the legislature of each state, and then the federal Constitution turns each of these legislatures into electoral bodies that return the members of the Senate.66

DeTocqueville then explained this maxim of indirect elections:

The Senators therefore do represent the result, albeit the indirect result, of universal suffrage, for the legislature which appoints the Senators is no aristocratic or privileged body deriving its electoral right from itself; it essentially depends on the totality of citizens; it is generally annually elected by them, and they can always control its choice by giving it new members.67

This elucidation clearly demonstrates that the people do exercise a degree of control over senatorial election.

DeTocqueville then explained that election by state legislatures acted as a filter and that the resultant product is an assembly of representatives sufficiently noble to check the “transient impressions” of the people. He said:

But it is enough that the popular will has passed through this elected assembly for it to have become in some sense refined and to come out clothed in nobler and more beautiful shape. Thus the men elected always represent exactly the ruling majority of the nation, but they represent only the lofty thoughts current there and the generous instincts animating it, not the petty passions which often trouble or the vices that disgrace it.68

Of additional significance is the fact that DeTocqueville not only commended the appropriate use of the filtration of elections; he went so far as to warn that if this feature was not used, the republic could be lost to the throes of excessive democracy. He cautioned:

It is easy to see a time coming when the American republics will be bound to make more frequent use of election in two stages, unless they are to be miserably lost among the shoals of democracy…. Those who hope to make it the exclusive weapon of one party, and those who fear it, seem to me to be making equal mistakes.69

DeTocqueville did not think that this method of election was to be feared: on the contrary; he believed it was a necessity.

Having examined the original intent of the Framers by surveying their debates in the constitutional convention and by reviewing pertinent Federalist papers; and. having examined the opinions of two eminent scholars of early American government, several conclusions regarding the method of senatorial election may be drawn. Senatorial election by state legislatures was designed to: 1) affect state representation in the national legislature for the three-fold purpose of: (a) thwarting potential centralization by guarding the federal aspect of the general government; (b) providing an opportunity for the states to vocalize their interests in national decisions, treaties. and appointments; and, (c) establishing the bicameral legislature on two different foundations for the purpose of instituting a political check; 2) utilize indirect election as a means of filtering out the “transient impressions” of the people; and, 3) foster the choosing of virtuous Senators, as the state legislatures would be most familiar with the character and qualifications of potential candidates. Though the generation which ratified the Constitution was satisfied with this method, seeds of discontent were soon to be sown.

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* Copyright © 1987 Virginia M. McInerney. Used with permission.
13. See generally Alexander Hamilton. Federalist No. 17, published in Rossiter, pp. 118-122; Madison, Federalist Nos. 44, and 45, published in Rossiter. pp. 280-294.
14. James Madison, Notes of Debates in the Federal Convention of 1787, with an Introduction by Adrienne Koch (Athens, OH: Ohio University Press, 1966; reprint ed., U.S., Congress, House, Documents Illustrative of the Formation of the Union of the American States, ed. C.C. Tansill, H. Doc. 398, 69th Cong., 1st sess., [Washington, D.C.: Government Printing Office, 1927]), p. 84.
15. Mason said:

    whatever power may be necessary for the National Government a certain portion must necessarily be left in the States. It is impossible for one power to pervade the extreme parts of the U.S. so as to carry equal justice to them. Ibid., p. 87. See also Ibid., pp. 84, 87, 187, 189-190; and Hamilton, Federalist No. 17, pp. 118-119.

16. Madison, Notes of Debates, p. 84.
17. Ibid., pp. 84-85, (emphasis added).
18. Ibid., p. 190.
19. Ibid., p. 78.
20. Ibid., p. 87, (emphasis added).
21. Ibid., (emphasis added).
22. Ibid., p. 187.
23. Ibid., p. 74.
24. Ibid., p. 82.
25. Ibid. This is not to imply that Wilson supported the notion of two houses on different foundations, only to demonstrate that it was realized that different foundations existed.
26. Ibid., p. 78.
27. Ibid., p. 82.
28. Ibid., p. 77.
29. Ibid., pp. 40-41.
30. Ibid., pp. 193-195. This last statement is not indicative of the erroneous notion that minorities have certain special rights that majorities do not have. All men are created equal and are endowed by their Creator with certain unalienable rights. Because the purpose of civil government is to secure these rights (for all men) it is reasonable that. that government be so engineered as to institute a safeguard such that a majority, by its shear force, may not usurp the inalienable rights of men in a minority. Madison was making the point that part of the reason for the creation of the Senate was to provide another division of interests as a means of thwarting attempts by a majority to oppress a minority. Ibid, p. 77. The Senate was also intended to be comprised of men who were wise and virtuous enough to discern unjust schemes of this sort so that it could throw its weight against such schemes. Ibid., p. 195
31. Ibid., p. 39.
32. Ibid., pp. 77, 82.
33. Ibid., p. 189.
34. Ibid., p. 193.
35. Ibid.
36. See Madison, Federalist No. 10, published in Rossiter, p. 81.
37. Madison, Federalist No. 10, published in Rossiter, p. 82. See also Idem, Federalist, No. 39, published in Rossiter, p. 240.
38. Alexis DeTocqueville, Democracy in America, ed. J.P. Mayer, trans. George Lawrence (Garden City, NY: Doubleday and Co., Inc., 1966), p. 201.
39. Madison, Notes of Debates, p. 42.
40. Ibid.
41. Ibid., p. 194.
42. Ibid.
43. Ibid., p. 83.
44. Ibid., p. 77.
45. Dual principles apply here. One is that because government is by consent, the will of the majority is to prevail. Tho other is that all men are created equal and are endowed with inalienable rights. Therefore, the stipulation upon executing the will of the majority is that that will not usurp the inalienable rights of the minority. Thomas Jefferson articulated this maxim as follows:

    All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will, to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression. Thomas Jefferson, “First Inaugural Address,” published in Richardson, 1:310.

46. Madison. Notes of Debates, pp. 194-195.
47. Ibid., p. 195.
48. Ibid., p. 78.
49. Ibid., p. 189.
50. Ibid., p. 74.
51. See Madison, Federalist No. 39, published in Rossiter, p. 240. See-generally Ibid., pp. 240-246.
52. Published in Ibid., p. 244.
53. Published in Ibid.
54. Hamilton, Federalist No. 59, published in Rossiter, p. 364.
55. Madison, Federalist No. 45, published in Rossiter, p. 291.
56. Published in Ibid.
57. Idem, Federalist No. 62, published in Rossiter, p. 377.
58. John Dickinson, The Letters of Fabius on the Federal Constitution, published in E.H. Scott, ed., The Federalist Papers and Other Contemporary Papers on the Constitution of the United States (Chicago: Scott, Foresman, and Co., 1894; reprint ed., Pamphlets on the Constitution, ed. Paul Leicester Ford (Brooklyn: Brooklyn Historical Club, 1888), p. 784.
59. Tench Cox, “An Examination of the Constitution for the United States of America,” published in Ibid., p. 762.
60. James Bryce, The American Commonwealth, 2 vols., 3d ed. (New York: The MacMillan Co., Ltd., 1909), 1:98.
61. Ibid., 1:99. Bryce also said:

    Every nation which has formed a legislature with two houses has experienced the difficulty of devising methods of choice sufficiently different to give a distinct character to each house…. The American plan, which is older than any of those in use on the European continent, is also better, because it is not only simple, but natural, i.e. grounded on and consonant with the political conditions of America. Ibid., 1:99-100.

62. Ibid., 1:100
63. Ibid.
64. DeTocqueville, pp. 200-201.
65. Ibid., p. 201.
66. Ibid.
67. Ibid.
68. Ibid.
69. Ibid.