The Irony of Populism: The Republican Shift and the Inevitability of American Aristocracy

Social Science Research Network ^ | 2006 | Zvi. S. Rosen

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Abstract:
"The Irony of Populism: The Republican Shift and the Inevitability of American Aristocracy" analyzes the shift in the role of the Supreme Court following the movement towards a democratic Senate which culminated in the Seventeenth Amendment. The Supreme Court's shift is presented as the inevitable result of the system of mixed government that underlies the constitutional order, which orders American Government into democratic, aristocratic, and monarchical parts. While in the original conception of the constitution the Senate was the aristocratic part, the Senate would become part of the democratic part with the Seventeenth Amendment and prior procedural changes. Into this aristocratic vacuum entered the Supreme Court, and it has remained there since. This shift helps to explain various trends and practices today, including most notably the legislating from the bench often termed "judicial activism." While various elements of this argument have been put forward in the past, they have never been brought forward in one coherent argument that the effects of the Seventeenth Amendment not only seriously impacted the role of the Senate and the States, but also the Senate and the Supreme Court

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The actual paper can be downloaded from the webpage (under "SSRN Electronic Paper Collection")

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PING!

[redpoll]

Interesting premise. Gotta read it during my lunch break.

[Tolerance Sucks Rocks]

Yes, this $#!+ again.

[x]

People did talk about the Senate as the "aristocratic" branch of the legislature. But they also sometimes referred to the courts as the "aristocratic" branch of government. Tocqueville called lawyers an "aristocratic element." Jeffersonians and Jacksonians railed against John Marshall's "aristocratic" attitudes and actions.

What makes the courts, especially the Supreme Court, "aristocratic" -- even autocratic? First, lawyers and judges are expected to have special knowledge and skills that isn't required of senators, congressmen, or Presidents. Secondly, judges and justices are appointed for life and never have to worry about reelection. Third, Supreme Court justices can overturn federal and even state laws -- a power that the Senate certainly never had, and Senators could only dream about.

So the "aristocratic" potential was present in the courts from the beginning. Even if we still had an indirectly elected Senate, there'd still be activists of one sort or another trying to get their own way in the courts when the majority didn't agree with them.

[Dumb_Ox]

Sounds interesting, I hope I have time to read it.

I've long thought of the US government as a "mixed regime," fusing the various forms of government in hopes of getting the best from each.

I'll also note that when the Senators were elected by their state legislatures, they were representatives not of their citizens, but of the citizens' government. Now state governments need their own lobbyists in Washington to do the job the Senators were supposed to do.