It's the Constitution that's radicalizing our politicians (Repeal the 17th Amendment!)

American Thinker ^ | April 24, 2010 | John W. Truslow, III

[neverdem]

It is likely that conservatives will fail to understand why health care "reform" became law, and they are likely to fail if they start any post-mortem by accepting the conventional wisdom's realist premise:  1) Two election cycles produced a critical mass of radicals in the legislative and executive branches of government.  2) The personalities of those in the elected majority were more dynamic and compelling than those in the minority, and 3) the tactics employed by the majority prevailed over those with less adequate tools at their disposal. 

Without challenging the premises, conservative analysis so far has asserted the only conclusions it could:  elect more conservatives, recruit more vibrant leaders, and become more ruthless in the application of power when it is obtained.  These are the strategies of populist radicals, and commentators have suggested that conservatives should and can beat the radicals at their own game.  However, given the prevailing cultural and demographic winds, that is not only exceptionally unlikely over the next century, it is both shortsighted and unhelpful precisely because it is a prescription neither for stability nor securing lasting liberty, only an electoral variation doomed to be swept in and out again with the flow of the political tides.  Conservatives must begin from a different starting position and make other, more significant changes.

The conservative claim is that structural order has been lost and that structural order must be restored, or put another way:  If the construction of the political system remains the same, then the outputs of that system also will remain the same.  The three part preoccupation with establishing a permanent majority, the cult of personality (including the veneration of President Reagan), and dubious tactics to secure required ends is a postmodern perversion of conservatism, and these tendencies distract from the core values that make conservatives critical to the sustainability of society. 

In contrast to the above, 1) Conservatives understand that unchecked majority rule can be tyranny.  2) Conservatives distrust the coercive power of individual celebrity, putting their faith in just institutions.  3) Conservatives believe that a principled process is more valuable than an efficient practice.  So, when analyzing the current political debacle as conservatives, there is a very different conclusion to be drawn:  The system itself encourages radicalism (be they Republicans in 2003 or Democrats in 2010), and without systemic change, radicalism will continue to advance.  Therefore, conservatives must work first to restore the integrity of the constitutional order.

The 17^th Amendment to the U.S. Constitution (1913) is a clear catalyst for American radicalism, bringing a century of immeasurable disorder to the original constitutional framework.  Before the passage of the 17^th Amendment, the Constitution provided moderate, temperate government primarily by limiting the federal government's power.  It did this by a) establishing a political - not judicial - arena for the competition of unaligned self-interests, b) broadly diffusing power through a process of checks and balances existing between the federal and state governments, and also among three branches of the federal government, and c) enumerating specific powers, such as the commerce clause (from which Congress justifies the bulk of its current activity).  The 17^th Amendment eviscerated all three parts of that structure, and in doing so created the context in which radicalism has flourished in both parties.  Consider each of these in turn:

First, before the passage of the 17^th Amendment, Members of the Senate were chosen by state legislatures to be the agents of those sovereign governments in Washington, D.C., much like ambassadors today at the United Nations.  While a Member of the House would represent the intemperate passions of the people as citizens, a Senator would represent the very different interests of the people's state governments.  The interests of the two bodies were purposefully not aligned - their constituencies were different.  The 17^th Amendment allowed for the direct election of Senators by the citizens of each state.  What the U.S. had prior to 1913 was a bicameral legislature competing bill-by-bill for the direction and scope of the federal government.  Now that both Representatives and Senators have an identical interest (pandering to the citizenry) Congress is one herd of cattle in two pens. 

Second, by removing the states' voice in the federal government, the 17^th Amendment crippled the original meaning of both "separation of powers" and "checks and balances."  As a direct result, the states are effectively powerless to stop the expansion of national government into their sovereign affairs.  There is no other effective restraint.  Put differently, given the structure of government under the 17^th Amendment, there is no reliable way to stop the spread of national government power because the constitutional check against its expansion was eliminated.  Electing a majority of "better" candidates to high office will not solve this problem because -- as the Framers well knew -- a system in which political power is unchecked radicalizes the behavior of any man within it.

Third, mindful of their different constituencies, the Constitution gave the Senate functions different from those of the House, such as the confirmation of Supreme Court justices. There was a reasonable expectation that the emissaries of the states in the Senate would approve only of those nominees possessing a view of government that defended the state's sovereignty and right to govern responsively.  With the Senate no longer populated with members appointed to represent the interests of the states, Supreme Court justices have allowed the original (and very limiting) meaning of the commerce clause to erode in the favor of Congress's interests. 

Congress -- now aligned with the majority's fanaticism -- has responded by taking as much power as possible.  Consider the plight of states' Attorneys General as they file suit to halt the implementation of the healthcare reform law:  the states are making their constitutional appeal to justices confirmed by Senators who do not have the states' interests at heart.  Prior to the 17^th Amendment, there was virtually no chance that any legislative action filled with unfunded mandates to the states would ever clear a Senate comprised of states' representatives.  Today, all the states can do is pray that justices confirmed by the exact body that voted for the law in question will come to their aid.  Good luck with that.

Conservatives view the current political structure as broken, not simply populated by the wrong group of scoundrels.  Focusing first on large conservative majorities, better communicators, and merciless implementation is playing the short game.  To set the country on a sustainable path, we must first embrace the old and tried and repeal the 17^th Amendment.

John W. Truslow, III is Director of the Campaign to Restore Federalism, found online at restorefederalism.org

[UnbelievingScumOnTheOtherSide]

The 17th was the greatest damage to federalism between the Civil War and the New Deal and arguably more damaging than the New Deal.

[rabscuttle385]

fyi

[Republic_of_Secession.]

True - good point.

[rabscuttle385]

The three part preoccupation with establishing a permanent majority, the cult of personality (including the veneration of President Reagan), and dubious tactics to secure required ends is a postmodern perversion of conservatism, and these tendencies distract from the core values that make conservatives critical to the sustainability of society.

Of possible interest to you all.

[Bokababe]

Excellent article.

The 17th Amendment:

"The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution."

[Steve Van Doorn]

yeap it was a huge mistake.

[Loud Mime]

No argument here. The tenth chapter of my book is devoted to the abrogation of the 17th Amendment. See my tagline!

[Albion Wilde]

Excellent post — thanks.

[HiTech RedNeck]

Cronyism might give us dull, compromising Senators from a pre-17th method. There might be more McCains, not less.

[lentulusgracchus]

....arguably more damaging than the New Deal.

If I understand the writer correctly, he's charging the 17th Amendment with having enabled the New Deal and FDR's presidential imperialism.

[lentulusgracchus]

Too, then just as now, they tended to work for the money boys. The corrupt relationship of the California legislature (which elected California's senators) to the Big Four of the Central (Southern) Pacific Railroad is a case in point.

New York's Sen. Roscoe Conkling is another.

[TheThinker]

Wresting electoral power from the People seems a fool's errand.

Perhaps what we need is something like an electoral college for senators or some such device to compensate for weaknesses of direct election by state residents.

[FTJM]

Good article but he fails to include the corrupt and complicit media's role in the passage of health care reform. Without which the bill would not have passed, or Obama elected for that matter.

"Now that both Representatives and Senators have an identical interest (pandering to the citizenry) Congress is one herd of cattle in two pens."

Exactly.

[montanajoe]

Cant see anybody getting behind this either intellectually or financially. Repealing the 17th would have no interest among the voters..

[fporretto]

Repealing the 17th Amendment would be a good thing, but to put an end to Washington's voracity, it's the 16th that has to go. The 16th Amendment is what makes redistribution, and therefore the special-interest dynamic, the driving force of American politics.

Freedom, Wealth, and Peace,
Francis W. Porretto
Curmudgeon Emeritus of Eternity Road

[steveab]

I have thought about the repeal of the 17Th Amendment and I’m still not sure that would be a good move.
The roll of State and Federal government should be creating a Level Playing Field. What is good for one is good for all. Instead we have State and Federal government picking “Winners and Losers” with tax codes and regulations.(It reminds me of my childhood when I earned money and my parents would tell me how I could spend my earnings or else.)
What do Lobbyist do? Their job is to tilt the “Playing Field” in the favor of “One” at the expense of the “Rest” through tax laws and/or regulations. So now our taxes and regulations’ “Playing Field” looks like the Rocky Mountains with hundreds of thousands codes.
If we had a very simple tax code, either a “Fair” or “Flat” with no Exemptions, would not that eliminate 90% of the BS and corruption in Government?

[Cacique]

Far more than merely repealing amendments we must irrevocably change minds not just opinions on certain issues. There is a disconnect when 80% claim to be conservatives when in the same breath on other polls almost 45% still support Obama. We need to learn that politics are emotions and most people vote with emotions, regardless of logic. Conservatives had better understand this or we will die. It’s fine to discuss ideas amongst ourselves. We need to go out there and proselytize. Temporary victories must be opportunities to turn the national ideology into a permanent majority. That has been the goal of the left since day one. We have not reciprocated.

[Bokababe]

BTW, Wiki has a pretty interesting history listed for the 17th Amendment.

Apparently, there are ten States that never even ratified the 17th Amendment: 1. Alabama 2. Kentucky 3. Mississippi 4. Virginia 5. South Carolina 6. Georgia 7. Maryland 8. Delaware 9. Rhode Island 10. Florida

And

25% of the Senators now in DC originally got there based on a Governor's appointment.

But there are moves afoot to remove that appointment option for Governors

In 2009, Senator Russ Feingold of Wisconsin and Representative David Dreier of California proposed an amendment to remove the power of governors to appoint Senators.[18][19][20] Senators John McCain and Dick Durbin became co-sponsors, as did Representative John Conyers.[13] On March 11, 2009, a joint hearing was held between the Senate and House subcommittees on the Constitution regarding S.J. Res. 7 and H.J. Res. 21.[21] On August 6, 2009, the Senate Subcommittee on the Constitution held a separate hearing.[22]

[neverdem]

Far more than merely repealing amendments we must irrevocably change minds not just opinions on certain issues. There is a disconnect when 80% claim to be conservatives when in the same breath on other polls almost 45% still support Obama.

I haven't seen, "80% claim to be conservatives." Do you have a link? That must be a sloppy mix of those who identify as social conservatives and those who identify as fiscal conservatives. Among those who claim to be both, the best number that I've seen that's reproducible is about 40%, and that's just recently. For years, the "moderates" have been polled between 40 - 50%.