Posted on 09/24/2002 8:35:46 AM PDT by Dick Bachert
THE SEVENTEENTH AMENDMENT: SHOULD IT BE REPEALED? Why The Direct Election Of Senators May Have Been A Serious Mistake, And One That Helps Explain The Supreme Court's States' Rights Views By JOHN W. DEAN ---- Friday, Sep. 13, 2002
Federalism - the allocation and balancing of power between state and federal government - has emerged as a central concern of the Supreme Court under Chief Justice William Rehnquist. Slowly, but steadily, the Rehnquist Court has been cutting back federal powers, and protecting state's rights.
Many have wondered what the Court is doing. Why are the Court's five conservatives - the Chief Justice himself, along with Associate Justices Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy, and Clarence Thomas - creating this new jurisprudence of federalism?
The answer is simple: they are seeking to fill a void in our constitutional structure, a problem created early in the Twentieth Century. The problem began when, in the name of "democracy," we tinkered with the fundamental structure of the Constitution by adopting the Seventeenth Amendment.
The Amendment calls for direct election of U.S. Senators. It's a change that has in fact proved anything but democratic. And it is a change whose aftermath may haunt the Twenty-first Century.
Concerns About Federalism, Especially Post-September 11
Divisions of power are rooted in our Constitution. Experience had taught the Framers the dangers of concentrations of ruling authority, resulting in their ingenious template of checks and balances, with divisions and distributions of power.
Ultimate power in a democracy resides with the people. We are not a pure democracy, however, but rather a confederated republic (one that features, as well, county and local political subdivisions).
Thus, while there is national sovereignty, there is also state sovereignty. Power has been so divided and spread for one reason: to provide for and protect the highest sovereignty - that of each individual citizen.
Only fools reject the wisdom of this founding principle of defusing power. Yet from the outset there has been debate regarding the appropriate allocation and balancing of these powers. The debate has focussed on not only whether a particular matter should be dealt with at the state versus the national level, but also on how these allocations are adjusted from time to time.
Of late, for example, along with laments for those who tragically lost their lives during the September 11th terrorist attack, there has been widespread concern with new realignments of federal/state powers that have followed in the name of homeland security.
Most significantly, as I discussed in a previous column, Washington is assuming powers that have only previously existed during a Congressionally declared war.
Creating the United States Senate: The Framers' Bicameralism
In designing our Constitutional system, the Framers sought to remedy the limits of the Articles Of Confederation, which created a loose association of states with little central power. The new system, they decided, ought to feature a better allocation of powers - and the federal government should have the powers "necessary and proper" to perform its envisaged functions. The will of the People should be the foundation, and the foundational institution should be the law-making legislative branch.
Unsurprisingly, the Revolutionaries were not very impressed with most aspects of the British model of government. They rejected parliamentary government, with its king or queen and three estates of the realm (lords spiritual, lords temporal, and the commons).
But one feature of the British system, the Framers did borrow. That was bicameralism - a word coined by Brit Jeremy Bentham to describe the division of the legislature into two chambers (or, in Latin, camera).
The British Parliament had its House of Lords as the upper chamber and the House of Commons as the lower chamber. Citizens selected members of the House of Commons. The members of the House of Lords, in contrast, were those who had been titled by a king or queen (lords temporal) and the archbishops and bishops of the Church of England (lords spiritual).
Loosely basing our bicameral legislature on this model (minus the lords, both temporal and spiritual), the Framers created the House of Representatives as the lower chamber, whose members would be selected directly by the people. And with almost unanimous agreement, they determined that members of the upper chamber, the Senate, would be selected by not directly, but by the legislatures of the states. Each state would have two Senators, while Representatives would be apportioned based on population.
James Madison was not only involved in structuring the system, but was also a keeper of its contemporaneous record. He explained in Federalist No. 10 the reason for bicameralism: "Before taking effect, legislation would have to be ratified by two independent power sources: the people's representatives in the House and the state legislatures' agents in the Senate."
The need for two powers to concur would, in turn, thwart the influence of special interests, and by satisfying two very different constituencies, would assure the enactment was for the greatest public good. Madison summed up the concept nicely in Federalist No 51:
In republican government, the legislative authority, necessarily predominate. The remedy for this inconveniency is, to divide the legislature into different branches; and to render them by different modes of election, and different principles of action, as little connected with each other, as the nature of their common functions and their common dependencies on the society, will admit.
The system as designed by the Framers was in place for a century and a quarter, from 1789 until 1913, when the Seventeenth Amendment was adopted. As originally designed, the Framers' system both protected federalism and ensured that relatively few benefits would be provided to special interests.
The Cloudy Reasons Behind The Seventeenth Amendment
There is no agreement on why the system of electing Senators was changed through the enactment of the Seventeenth Amendment. But there is widespread agreement that the change was to the detriment of the states, and that it played a large part in dramatically changing the role of the national government.
Before the Seventeenth Amendment the federal government remained stable and small. Following the Amendment's adoption it has grown dramatically.
The conventional wisdom is that it was FDR's New Deal that radically increased the size and power of federal government. But scholars make a convincing case that this conventional wisdom is wrong, and that instead, it was the Seventeenth Amendment (along with the Sixteenth Amendment, which created federal income tax and was also adopted in 1913) that was the driving force behind federal expansion.
The Amendment took a long time to come. It was not until 1820 that a resolution was introduced in the House of Representatives to amend the Constitution to provide for direct elections of Senators. And not until after the Civil War, in 1870, did calls for altering the system begin in earnest. But forty-three years passed before the change was actually made.
This lengthy passage of time clouds the causes that provoked the Amendment to be proposed and, finally, enacted. Nonetheless, scholars do have a number of theories to explain these developments.
George Mason University law professor Todd Zywicki has assembled an excellent analysis of the recent scholarship on the history of the Seventeenth Amendment, while also filling in its gaps. Zywicki finds, however, that received explanations are incomplete.
Two Main Seventeenth Amendment Theories Don't Hold Water On Examination
There have been two principal explanations for changing the Constitution to provide for direct election of Senators. Some see the Amendment as part of the Progressive Movement, which swept the nation in the late 1800s and early 1900s, giving us direct elections, recall, and referendums.
Others, however, believe the Amendment resulted from the problems the prior Constitutional system was creating in state legislatures, who under that system were charged with electing Senators. These problems ranged from charges of bribery to unbreakable deadlocks.
Deadlocks happened from time to time when, because of party imbalance, a legislature was unable to muster a majority (as necessary under the 1866 law that controlled) in favor any person. The result was to leave the Senate seat empty and leave the state represented by only a single Senator, not the Constitutionally-mandated two.
Professor Zywicki basically demolishes both these explanations. He contends, first, that explaining the Seventeenth Amendment as part of the Progressive Movement is weak, at best. After all, nothing else from that movement (such as referendums and recalls) was adopted as part of the Constitution. He also points out that revisionist history indicates the Progressive Movement was not driven as much by efforts to aid the less fortunate as once was thought (and as it claimed) - so that direct democracy as an empowerment of the poor might not have been one of its true goals.
What about the "corruption and deadlock" explanation? Zywicki's analysis shows that, in fact, the corruption was nominal, and infrequent. In addition, he points out that the deadlock problem could have been easily solved by legislation that would have required only a plurality to elect a Senator - a far easier remedy than the burdensome process of amending the Constitution that led to the Seventeenth Amendment.
Fortuntely, Professor Zywicki offers an explanation for the Amendment's enactment that makes much more sense. He contends that the true backers of the Seventeenth Amendment were special interests, which had had great difficultly influencing the system when state legislatures controlled the Senate. (Recall that it had been set up by the Framers precisely to thwart them.) They hoped direct elections would increase their control, since they would let them appeal directly to the electorate, as well as provide their essential political fuel - money.
This explanation troubles many. However, as Zywicki observes, "[a]thought some might find this reality 'distasteful,' that does not make it any less accurate."
Should The Seventeenth Amendment Be Repealed?
Those unhappy with the Supreme Court's recent activism regarding federalism should considering joining those who believe the Seventeenth Amendment should be repealed. Rather than railing at life-tenured Justices who are inevitably going to chart their own courses, critics should focus instead on something they can affect, however difficult a repeal might be.
Repeal of the amendment would restore both federalism and bicameralism. It would also have a dramatic and positive effect on campaign spending. Senate races are currently among the most expensive. But if state legislatures were the focus of campaigns, more candidates might get more access with less money - decidedly a good thing.
Returning selection of Senators to state legislatures might be a cause that could attract both modern progressive and conservatives. For conservatives, obviously, it would be a return to the system envisioned by the Framers. For progressives - who now must appreciate that direct elections have only enhanced the ability of special interests to influence the process - returning to the diffusion of power inherent in federalism and bicameralism may seem an attractive alternative, or complement, to campaign finance reform.
Profession Zywicki likes this idea as well, but is probably right in finding repeal unlikely. He comments - and I believe he's got it right -- "Absent a change of heart in the American populace and a better understanding of the beneficial role played by limitations on direct democracy, it is difficult to imagine a movement to repeal the Seventeenth Amendment."
Generally, women are NOT risk-takers. They are the security seeking nest-builders. They voted for the klintoons PRECISELY because the klintoons did a better job of promising -- falsely and disingenuously, of course -- that "security."
They weren't elected by "soccer DADS," were they?
Just kidding about the imprisoned
The muckrakers didn't know much about economics or the Constitution, but they were experts at agitation and propaganda. The totalitarians of the 20th Century learnt much from the yellow journalists of the turn of the century. It was probably the novelty of journalism to many readers, and the changes society was going through that made the impression the muckrakers left on the coutnry so great. And how do you tell people in an age of yellow journalism and growing democratic/majoritarian sentiment that they are better off not having a direct voice in electing their Senators? Lloyd George in Britain was conducting his campaign to limit the powers of the House of Lords at the same time as the campaign for direct election.
The first resolution for direct election of Senators was introduced in 1826. Over the next 85 years there were 197 such resolutions. Starting in 1893 the House started passing them with the necessary 2/3 vote. The Populists supported direct election from 1892, the Democrats from 1900, the Prohibitionists from 1904. Hearst himself submitted such a resolution in 1905 when he was a Congressman, and his publications supported his cause. When the Democrats won big in 1910 and bigger in 1912 passage of the Amendment became inevitable. Even some of the Senators Phillips attacked supported it.
Phillips didn't live to see it, though. In 1911 a socially prominent, but mentally unhinged, Washingtonian who was convinced the writer was persecuting his sister in his novels about fallen women assassinated Phillips.
Only those who are incapable of acting rationally (such as children and the mentally retarded) or who have proven themselves a danger to society should be denied the vote. But even if you disagree with those general criteria, I'd still contend that the way to decide who has the franchise should be by objective means, rather than who can help or hinder your political goals.
And on a side note, I'd be interested to know whether either of you gentlemen are married.
( BTW
I got these ideas from conversations with my grandfather when I was young. Although striving to be assimilated, he was one of those easily-swayed immigrant voters. This is also a major reason why I oppose the current massive Immigration: it too will result in massive social and political upheaval.)
\ God help us. He'll have to as it's increasingly clear that we're incapable of helping ourselves out of this mess.
Jefferson warned us what would happen here. He'd watched the first socialist revolution unfold in France and declared that if the socialism then sweeping Europe ever came here, two things would occur:
1. We would be come an increasingly litigious and contentious people as we shouldered one another out of the way to get OURS from the public trough and
2. The trough would soon become EMPTY.
Looks around. Look around!
He also offered these thoughts as a further warning:
"The mobs of the great cities add just so much to the support of pure government as sores do to the strength of the human body. It is the manners and spirit of a people which preserve a republic in vigor. A degeneracy in these is a canker which soon eats to the heart of its laws and constitution." --Thomas Jefferson: Notes on Virginia Q.XIX, 1782. ME 2:230
I think our governments will remain virtuous for many centuries as long as they are chiefly agricultural; and this will be as long as there shall be vacant lands in any part of America. When they get piled upon one another in large cities as in Europe, they will become corrupt as in Europe." --Thomas Jefferson to James Madison, 1787. Papers 12:442
"I view great cities as pestilential to the morals, the health and the liberties of man. True, they nourish some of the elegant arts; but the useful ones can thrive elsewhere; and less perfection in the others, with more health, virtue and freedom, would be my choice." --Thomas Jefferson to Benjamin Rush, 1800. ME 10:173
"Our cities... exhibit specimens of London only; our country is a different nation." --Thomas Jefferson to Andre de Daschkoff, 1809. ME 12:304
"Everyone, by his property or by his satisfactory situation, is interested in the support of law and order. And such men may safely and advantageously reserve to themselves a wholesome control over their public affairs and a degree of freedom which, in the hands of the canaille of the cities of Europe, would be instantly perverted to the demolition and destruction of everything public and private." --Thomas Jefferson to John Adams, 1813. ME 13:401
"An insurrection... of science, talents, and courage, against rank and birth... has failed in its first effort, because the mobs of the cities, the instrument used for its accomplishment, debased by ignorance, poverty, and vice, could not be restrained to rational action. But the world will recover from the panic of this first catastrophe." --Thomas Jefferson to John Adams, 1813. ME 13:402
"I fear nothing for our liberty from the assaults of force; but I have seen and felt much, and fear more from English books, English prejudices, English manners, and the apes, the dupes, and designs among our professional crafts. When I look around me for security against these seductions, I find it in the wide spread of our agricultural citizens, in their unsophisticated minds, their independence and their power, if called on, to crush the Humists of our cities, and to maintain the principles which severed us from England." --Thomas Jefferson to Horatio G. Spafford, 1814. ME 14:120
And I've been happily married to my lovely bride for 40 years. 3 kids and 4 grandkids.
Questions???
I'll gladly admit being wrong if you can produce quotes from Jefferson supporting the principle of disenfranchising one's political enemies as a sound practice in a representative republic.
And one more question for you: considering the quotes you've cited of Jefferson's hatred for cities and their inhabitants, would you suggest that the government empty the cities and force the people to re-adopt an agrarian lifestyle for the sake of maintaining "virtue"?
They would also agree with me that there are some folks who shouldn't even be allowed to drive past a polling place on election day. Today, the Dems haul BUSLOADS of apolitical morons to the polls in various places with the promise of more "goodies" from the pockets of the rest of us, pints of Ripple, etc.
And since you seemed to enjoy the quotes, here's another:
"Yes we did produce a near-perfect republic. But will they keep it? Or will they, in the enjoyment of plenty, lose the memory of freedom? MATERIAL ABUNDANCE WITHOUT CHARACTER IS THE PATH TO DESTRUCTION."
I believe that those who cannot pass a relatively simple test on the US Constitution and/or are NET TAX CONSUMERS should not be allowed to vote in this country.
Hell, we're already past the point of no return so THIS discussion is moot.
The literacy rate in colonial and post-colonial times was around 97%. The educated elite, the professionals, the merchants -- yes, even those "rubes" out on the farms. LITERATE!
Do you know what the rate is today? And do you know where most of them reside? Hint: It's NOT on the farms! )(Can you say "inner city Democrat stronghold")
Roosevelt loved to tell people, businessmen, especially, that he was all that stood between prosperity and ruin, that they must take him and his progressivism or succumb to a socialism that would destroy everything. He always stood sideways on issues, and I think this was his rationalization for his radicalism.
Instead, all he did was legitimize William Jennings Bryan.
Politics are dangerous, and one can never say what might have been. I'll take a shot, wasted as it'll get me:
Had McKinley taken on the anthracite strike, the Panama Canal, and big business (Hanna blamed Morgan and Harriman for the Northern Securities trust bust -- which the very conservative lawyer, Philander Knox, prosecuted), the results would have been the same as Roosevelt achieved, but the expectations would have been radically different. Whereas Roosevelt used those instances as stepping stones, McKinley would have pursued them as mere obstacles. A look at the way McKinley handled the entry to the Spanish War illuminates this: he went reluctantly, but he went on his own terms, and very successfully.
I'm thinking that McKinley would have launched the 20th Century on firmer ground than Roosevelt. Roosevelt, rather, mucked it up (to use his term). He did it by talking Bryan's talk, and going half way there. Modern reactionaries ought find little appealling in the way Roosevelt adopted his opponents' politics.
(Roosevelt had the great fortune of going up against the conservative Parker in 1904; Bryan's people sat out the election, and Roosevelt didn't have to do or say anything radical that would offend his conservative Republican base).
I won't say that Roosevelt's co-option of progressivism and Bryan wasn't successful. I will say that it was unfortunate.
1912 was the product of eleven years of hysteria forced upon the nation, chiefly by the muckrakers, but much facilitated by their president of 1901-1909, and, especially, ex-president thereafter. Roosevelt spent 1910 to 1912 perfecting his radical/conservative posture, tuning his appeal to the fearful and the cautiously fearful who were otherwise afraid of Bryan.
It was up to Taft to uphold the intrepid. Taft from 1910:
The present political situation is a curious one. Indeed, the condition of public opinion is curious. It seems to be feeling the effect of the flood of misrepresentation which manifests itself in a protest against everything and everybody who is not in the forefront crying "Stop thief!"And this one is my fave:
I had a letter the other day from a man who said: "I don't like the tariff bill which was passed and which you signed. I don't like your association with Joe Cannon. I don't like your association with Aldrich. I don't like what you are doing with respect to the magazines and the periodicals and suppressing free speech.* I don't like anything about your administration."
Well, I sat down and dictated the following: "My dear Sir: You are in a bad way."
* a reference to the 2nd class postal rate hike proposalsI do not wonder what would have happened to the nation had Bryan won in 1908. Taft did the nation a tremendous service.
Taft certainly was more responsible than TR, though. Like Taft, McKinley might have taken some of the steps TR did but without the drama and show and without stirring things up too much. I've heard that Taft took TR's trustbusting seriously, and strove to break up monopolies, while TR played a much more devious game. So yes, I think you're right about TR's role. And had he not run in 1912 Taft would surely have won, and our history would be quite different.
TR's problem was that he couldn't help stirring people up more than was good for them. His cousin Franklin's problem was different. FDR allowed power to seduce him to the point where he'd do any thing to keep it and increase his hold on it. Not that TR didn't want to keep power -- but it was more that he wanted the limelight and the applause, and not power in itself. FDR took the applause for granted and wanted to hold on the power itself. Both cousins were seducers, but FDR soothed, and TR aroused passions. TR's faults were those of a man who couldn't sit still and stop moving. FDR obviously didn't have that problem, and succumbed to the vices of a more sedentary life and feline character.
Something happened to the Democratic party around 1910-12. Prior to then you had the Bryanite Westerners and the Conservative Easterners. With Wilson, you got a fusion of the two tendencies, progressive, but friendly to Wall Street, hostile to Bryanist populism, and more than a little shaped by TR's activism. It's certainly a fascinating thesis that progressivism might have gone the way of populism if TR hadn't stirred the pot. La Follette had planned to run in 1912, and he could have played the same role as TR, though not nearly so well.
There is much that's admirable about TR and things that are loveable, but this seems to reflect the amorality of charisma. He's a little like the "live wire" who so brightens the room that you don't ask too many questions about the shadier sides of his life, or an actor you can't help cheering, even though he and his character aren't paragons of virtue. The fact that TR did have some major virtues not found in some of his successors -- courage, patriotism, fidelity, devotion, energy, personal honor -- complicates the picture.
Watching the "Civil War" documentary, I couldn't help asking myself, what would have happened if Booth had shot Lincoln earlier, in 1861, 1862 or 1863, or what if the assassination plot had failed entirely. And come to think of it what if TR had died from the bullet he took on the campaign trail? Or if Czolgosz had missed McKinley?
Another of history's what-ifs concerns Archie Butt, TR's friend and advisor. He tried to reconcile Roosevelt and Taft. There's no telling if it would have worked. Butt died on the Titanic.
Louis Auchincloss's little book on Wilson is available on CD as an audiobook. It's only a sketch and very pro-Wilson, but it's a good way of reliving part of the past. Auchincloss notes Wilson's mental rigidity and the current theory that a minor stroke Wilson had before becoming President contributed to it. Also of interest is Wilson's dependence on the support of adoring women and his distrust of other men. Every close working relationship Wilson had ended with a bitter break, ostensibly on questions of principle, but more accurately due to hurt feelings and Wilson's seeing betrayal in all differences of opinion.
Auchincloss draws an interesting parallel between TR and WW. Teddy combined high-flown rhetoric with down-to-earth political manipulation, but he knew what he was doing all the time. Wilson couldn't see his own high ideals and lowdown deals as separate. Wilson was very good at playing the political game, after it was explained to him and before he got carried away, but every deal and trick was justified in his eyes by his high ideals. He took himself very seriously.
His hunger for power was striking. Auchincloss notes how remarkable it was that in an age of "men of action" Wilson chose a contemplative path and followed it to supreme power, but Wilson's constant desire for power is creepy and disturbing. And "supreme power" doesn't fall short of the mark. We entered WWI almost as a totalitarian power, with commissioners and administrators for every sphere of life and the economy given a free hand to do as they wished.
FWIW, here's something from the Atlantic about Bush's and Taft's secret society:
New members of Skull and Bones are assigned secret names, by which fellow Bonesmen will forever know them. Some Bonesmen receive traditional names, denoting function or existential status; others are the chosen beneficiaries of names that their Bones predecessors wish to pass on. The leftover initiates choose their own names. The name Long Devil is assigned to the tallest member; Boaz (short for Beelzebub) goes to any member who is a varsity football captain. Many of the chosen names are drawn from literature (Hamlet, Uncle Remus), from religion, and from myth. The banker Lewis Lapham passed on his name, Sancho Panza, to the political adviser Tex McCrary. Averell Harriman was Thor, Henry Luce was Baal, McGeorge Bundy was Odin. The name Magog is traditionally assigned to the incoming Bonesman deemed to have had the most sexual experience, and Gog goes to the new member with the least sexual experience. William Howard Taft and Robert Taft were Magogs. So, interestingly, was George Bush.
I think they're talking about the first President Bush, who was already married during his college days. I wonder if GWB was a "Gog" or a "Magog." But Billy Taft, the ladies' man, who knew?
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