That Dratted Seventeenth Amendment
The other day, you'll recall, Scott Reusser announced that he was "torn" over repealing the Seventeenth Amendment, which weakened the role of the states in the federalist system. Before the Amendment, the state legislatures chose U.S. senators. The Amendment provided instead for the direct popular election of U.S. senators. Most of us (by my rough count) came down on the side of repeal.
After reading all this, Ricochet fan and law professor Todd Zywicki dropped me a line, giving me two items--and both are so rich I thought I'd pass them right along.
For Todd's expert argument on behalf of repeal--read it, Scott Reusser, and you'll no longer feel torn--click here.
Todd's second item? An article in the National Law Journal reporting on the nascent repeal movement. The article lies behind a paywall, but herewith a few choice excerpts:
The long-forgotten 17th Amendment--the one that gave us direct election of senators--has suddenly moved to center stage in the new debate over constitutional first principles fostered by the Tea Party movement...
Zywicki said he was surprised at first when the Tea Party movement, with its populist orientation, embraced repeal of the 17th Amendment, which appears to be 'somewhat anti-democratic,' because it would take away popular election of senators.
But he agrees with the analysis that, if the 17th Amendment had never been adopted, the Senate--and Congress--would not be the institutions they are today. Instead of being elected the same way as House members, they would be much more strongly tied to the interests of their states. 'It's my firm belief that 'Obamacare' would not have happened,' Zywicki said, because it overrides state prerogatives in significant ways. Unfunded mandates would not have proliferated, he added. 'There has been more federal activity of all kinds, ' since the 17th Amendment came into being, Zywicki said...
[I]n the end even Zywicki, who has beat the drums for repealing the 17th Amendment for so long, thinks it's very unlikely to happen 'in my lifetime,' in part because it seems anti-democratic, and in part because the constitutional amendment process would require two thirds of the existing Senate to approve. New senators like Mike Lee [the Tea Party candidate, just elected to the U.S. Senate from Utah, who, like Todd Zywicki, opposes the 17th Amendment] offer a glimmer of hope, but even Lee in a postelection interview also said he did not envision repealing the amendment in his lifetime. Zywicki is 44, and Lee is 39.
Still. We can dream, can't we?
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Comments :
May '10
Re: That Dratted Seventeenth Amendment
Irony alert: Mike Lee supports repealing the 17th Amendment (for all the right reasons, it seems to me), but without the 17th Amendment's provision for the direct election of Senators I highly doubt Mike Lee would ever become a Senator. (Please do not excoriate me as an opponent of Mike Lee, Tea Parties, good governance, or whatnot. My comment is simply a recognition - a lament, even - that state legislators would never choose the folks we championed in this year's Senate races.)
Edited on Nov 24, 2010 at 11:26amMay '10
Re: That Dratted Seventeenth Amendment
Long shot though this may be, I cannot help but desire that the issue becomes even more prominent. As policy, it's the sort of structural reform needed to preserve local power, which is desperately needed. And the politics may be slightly less bad than it seems. Obviously the "this is what the Founders wanted" assertion is irrefutable. The trick, I think, would be for the Amendment to stipulate that the law would kick in gradually as incumbent Senators got voted out, or at least be delayed one election cycle. The fight itself, even if doomed, would perhaps highlight the myriad ways that the federal government tramples on local prerogatives.
Re: That Dratted Seventeenth Amendment
Hm. Good idea to phase in the repeal. Note, too, Conor, that there wouldn't be anything to prevent state legislatures from enacting popular election measures of their own, enabling the citizens of a state to choose their senators just as they do now, with the single difference that the state legislatures would ratify, or certify, the result of the popular vote. (I'm a little hazy on the particulares, but this seems to have been the sort of system Illinois had in place at the time of the Lincoln-Douglas debates.)
Oct '10
Re: That Dratted Seventeenth Amendment
As far as I can tell, the record period of time serving as a US Senator prior to 1913 was someone I had never heard of, John Gaillard of South Carolina, who served from 1805 to his death in 1826. Byrd, Thurmond, and Kennedy all served more than twice as long, Ted Stevens came close, and Inouye may be going for the triple. I think more and more Americans are coming to realize that a House of Lords is not what the Senate was supposed to be.
It will be difficult to repeal, but perhaps the facts that Americans no longer rely on Cosmo for political commentary will help.
http://en.wikipedia.org/wiki/The_Treason_of_the_Senate
Re: That Dratted Seventeenth Amendment
Could we not simply bypass the Senate by having the states call a Convention to propose constitutional amendments?
May '10
Re: That Dratted Seventeenth Amendment
I'm less impressed by this than everyone else seems to be. State legislatures turn over, if anything, even less often than the Fed reps do- and their makeup is all about local corruption, back-scratching, log-rolling, and pork.
I think that the Senate would be populated by people who had a lot of favors owed to them- you wold have Illinois Sen. Mike Madigan (the old-line union guy who runs the Illinois legislature- read John Katz on him some time) instead of Mark Kirk, and Lisa Murkowski would be the rule rather than a remarkable exception, with no opportunity for public input.
I still think that we are better off with term limits.
May '10
Re: That Dratted Seventeenth Amendment
Duane Oyen: I'm less impressed by this than everyone else seems to be. State legislatures turn over, if anything, even less often than the Fed reps do- and their makeup is all about local corruption, back-scratching, log-rolling, and pork.
I think that the Senate would be populated by people who had a lot of favors owed to them- you wold have Illinois Sen. Mike Madigan (the old-line union guy who runs the Illinois legislature- read John Katz on him some time) instead of Mark Kirk, and Lisa Murkowski would be the rule rather than a remarkable exception, with no opportunity for public input.
I still think that we are better off with term limits. · Nov 24 at 12:27pm
What Duane said. To give you some local flavor, I'd bet the modest cash in my wallet that John Spratt would be a Senator from South Carolina if our legislature had anything to do with it. I just can't work up much enthusiasm for this idea and think that it's best confined to the faculty lounge at George Mason. (All due respect, of course.)
May '10
Re: That Dratted Seventeenth Amendment
Duane and Matthew,
I'd argue that if Senators were chosen by state legislatures -- and if more power were invested at the state level generally -- citizens would invest more import in their election. Among the many perverse effects of the federalization of American government is that everyone looks to the president and their Congressman to solve problems. We'd be much better off if local elections were perceived as a higher stakes contest, and I wonder if making them so wouldn't itself solve some of the problems that make you doubt this solution.
May '10
Re: That Dratted Seventeenth Amendment
Conor,
I can't quarrel with anything you've mentioned. My concerns are probably rooted in place as much as anything. South Carolina politics are an odd beast. The Republican primaries here are frequently hot contests, even at the state House level. However, the brand of Republican that typically makes up a majority in the legislature is a person who would have been a Johnson Democrat fifty years ago (maybe even a few Wallace Democrats, too). Their instincts are conservative but they sure like seeing that pipeline of federal money sluice into Columbia each year. If we repealed the 17th Amendment (again, not a bad thing), I think you'd see a push in South Carolina to guarantee the direct election of our Senators (again, not a bad thing). Overall, this is interesting but not something I see as an immediate priority.
Oct '10
Re: That Dratted Seventeenth Amendment
Conor Friedersdorf: Duane and Matthew,
Among the many perverse effects of the federalization of American government is that everyone looks to the president and their Congressman to solve problems. Nov 24 at 1:14pm
I think you're getting at the underlying issue of this debate, which is about a functional system of federalism. I liked the idea of repeal at first blush I also found Ramesh Ponnuru's arguments convincing too. The states are just as complicit in the expansion of federal power as the fed gov't. With that being the case, something has to be done to address problem at the state level.
May '10
Re: That Dratted Seventeenth Amendment
Well, I do quarrel with Conor's view, while being fully sympathetic with its intent. Making the election of senators one more step removed from consciousness is no way to get locals more enthused about the electoral stakes. There is a very good psychological reason why voter turnout is much higher in presidential years than off-years. People simply want to be left alone to lead their lives, and only jump in when the direct stakes are high. Local school levies in recession years, sure. But what Conor suggests roughly equates to "Vote Schmidt to get those judgeship appointments improved!" We can't even sell that in POTUS years to address the SCOTUS, let alone the Circuit Courts of Appeal.
That's why national and state direct referenda on specific policy topics- which I don't necessarily endorse- are far more likely to get the public to pay attention than adding more buffers to senatorial selection would.
May '10
Re: That Dratted Seventeenth Amendment
While Zywicki's argument is persuasive, I'm still not convinced that this repeal will be the palliative that conservatives seek. What happened in the 19th century, or what might have happened had the 17th Amendment not been in place, does not necessarily predict will happen now that the Imperial Senate is in place. I can imagine ways that crafty people jealous of their power could exploit a repeal. "Beware the law of unintended consequences".
And I remain of the opinion that conservatives have bigger fish to fry. I don't see this issue generating a groundswell of popular, grassroots energy.
May '10
Re: That Dratted Seventeenth Amendment
Zywicki's most compelling point is that, pre-17th, senators' incentives were so different from their incentives today. Since all governments seek power--state governments included--a senator who wished to please his "constituents" in the state legislature would be motivated to reward those constituents with power, at the expense of federal power. Brilliant.
A second point is how the pre-17th set-up undermined House-Senate unity, maintaining instead the bicameral nature of Congress. The Pelosi House and the Reed Senate would be far less likely to act in cahoots on grand utopian federal schemes if each served a different master. Again, brilliant.
And our focus on who is misguided (that is, who would or would not become a senator under this or that arrangement). There will always be rotten politicians. But this rotten fact of life is best mitigated if the proper incentives and checks are in place. Forget trying to devise a system that will yield virtuous leaders. Not gonna happen. Daniel Frank said it best at the end of the other thread: Without the 17th Amendment we might not need insurgent Tea Party senators.
Thanks so much, Peter.
May '10
Re: That Dratted Seventeenth Amendment
I agree, unfortunately. I've come around on the matter, but I don't see this teeth-pulling process repeating itself 100 million times.
Re: That Dratted Seventeenth Amendment
Scott Reusser
I agree, unfortunately. I've come around on the matter, but I don't see this teeth-pulling process repeating itself 100 million times.
· Nov 24 at 6:46pm
Welcome to Ricochet, home of glorious lost causes.
Sep '10
Re: That Dratted Seventeenth Amendment
Peter Robinson
Scott Reusser
I agree, unfortunately. I've come around on the matter, but I don't see this teeth-pulling process repeating itself 100 million times.
· Nov 24 at 6:46pm
Welcome to Ricochet, home of glorious lost causes. · Nov 24 at 7:53pm
Peter, there is a patron saint of lost causes. Perhaps I will look him up.