The Constitutional Flaw That Doomed Our Federal System

 

Instead of watching helplessly as our republic devolves into crown government, let’s distract ourselves with a counterfactual. What if senators were appointed by state legislatures for indefinite terms?

The Senate was designed to preserve the federal nature of our system. Members of the House represent the people, but the Senators were to represent the states — really, state governments.

Had this worked, the people would have benefited. (Sometimes, you win by grabbing all the power, but sometimes you win by ceding power to critical allies. The states were the people’s only allies in the War Against the Feds.) Unfortunately, senators came to be viewed as redundant representatives of the people, and this was reinforced by the 17th Amendment’s requiring the direct election of senators.

The design flaw that doomed the whole experiment was simple: fixed six-year terms for senators. They resemble other elected officials. The senate lacks a proper feedback loop. Senators become creatures of Washington. They go native.

We should treat them as state ambassadors. They should serve at the pleasure of the state legislators. If one gets out of line, recall him. Replace him instantly.

Sadly, the founders lacked the benefit of this wisdom. We’re doomed.

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  1. ctlaw Coolidge
    ctlaw
    @ctlaw

    With state legislatures appointing senators, it could become even more of a feeding frenzy.

    State legislators love the idea of being able to spend Federal tax dollars. They can avoid responsibility for the taxes involved, but enjoy the benefits of handing out goodies.

    • #1
  2. Arahant Member
    Arahant
    @Arahant

    Fredösphere:We should treat them as state ambassadors. They should serve at the pleasure of the state legislators. If one gets out of line, recall him. Replace him instantly.

    Sadly, the founders lacked the benefit of this wisdom. We’re doomed.

    I think it would still be working properly if not for the 17th. The six-year term, of itself was not bad, it was like a reminder to re-evaluate the incumbent. But the addition of recall ability by the legislature would be good.

    Personally, I rather like the system propounded in Lone Star Planet. Politicians would be responsible for their acts with their very lives.

    • #2
  3. Arahant Member
    Arahant
    @Arahant

    ctlaw:With state legislatures appointing senators, it could become even more of a feeding frenzy.

    State legislators love the idea of being able to spend Federal tax dollars. They can avoid responsibility for the taxes involved, but enjoy the benefits of handing out goodies.

    And the people don’t? As the electorate is currently constituted?

    Having Senators appointed by state legislatures was one of the checks and balances of our Constitution. Stripping it away stripped away much of the states’ power over the federal government.

    I liken the federal government to a chamber of commerce. A bunch of businesses get together and form a chamber of commerce to help do specific things: market the region, market the member businesses. The federal government was created for national defense, setting standards, etc. Very limited things. In a chamber of commerce, each business has a vote for board members, just as each state could appoint two representatives (Senators) to the board of the federal government. But this was a different structure where there were two houses on the board, and the other was elected by the people. That would be like having a separate house to the board of the chamber of commerce where the employees of the member companies got to vote. Then, with the 17th Amendment, we said, “We don’t like the companies’ designated representatives being able to vote for board members. We’re going to expand that franchise to all of the employees. And then we decided to expand that franchise to employee spouses, too. And then to their children. And then to their cousins who never worked for the company at all. And pretty soon, half the people who can vote don’t care about who is on the board of the chamber of commerce. And the rest are easily manipulated, because they don’t have time to consider the facts.

    Kill the 17th!

    • #3
  4. Ricochet Member
    Ricochet
    @ArizonaPatriot

    An interesting idea, but I don’t think the founders would have liked it, because it would undermine another purpose of the Senate.  The 6-year term of each Senator acts as a procedural “brake” against major legal changes based on short-term, and perhaps short-sighted, public sentiments.  I think that if Senators could be replaced at will by their state government, we’d see more severe swings in policy.

    • #4
  5. Fredösphere Member
    Fredösphere
    @Fredosphere

    Arizona Patriot:An interesting idea, but I don’t think the founders would have liked it, because it would undermine another purpose of the Senate. The 6-year term of each Senator acts as a procedural “brake” against major legal changes based on short-term, and perhaps short-sighted, public sentiments. I think that if Senators could be replaced at will by their state government, we’d see more severe swings in policy.

    On that the founders were simply wrong. Protecting the people from the natural results of their decisions is understandable but always wrongheaded. Give it to them good ‘n’ hard, as Mencken put it.

    • #5
  6. Arahant Member
    Arahant
    @Arahant

    Fredösphere:On that the founders were simply wrong. Protecting the people from the natural results of their decisions is understandable but always wrongheaded. Give it to them good ‘n’ hard, as Mencken put it.

    Well, that would be a call for direct democracy…for as long as it can last.

    • #6
  7. Fredösphere Member
    Fredösphere
    @Fredosphere

    Arahant:

    Fredösphere:On that the founders were simply wrong. Protecting the people from the natural results of their decisions is understandable but always wrongheaded. Give it to them good ‘n’ hard, as Mencken put it.

    Well, that would be a call for direct democracy…for as long as it can last.

    Yeah. Maybe I was hasty. Let me think about this question a bit more.

    • #7
  8. Idahoklahoman Member
    Idahoklahoman
    @Idahoklahoman

    Fredösphere:

    Arahant:

    Fredösphere:On that the founders were simply wrong. Protecting the people from the natural results of their decisions is understandable but always wrongheaded. Give it to them good ‘n’ hard, as Mencken put it.

    Well, that would be a call for direct democracy…for as long as it can last.

    Yeah. Maybe I was hasty. Let me think about this question a bit more.

    This is why I love Ricochet.

    • #8
  9. Misthiocracy Member
    Misthiocracy
    @Misthiocracy

    I generally try to avoid telling people in other countries how to “correct” their constitutions, however, I will indulge in describing one of the big differences between the US Constitution and the British North America Act, which forms the basis of Canada’s constitution.

    In Canada, when the Fathers of Confederation came together in 1867 to unite the remaining British North American colonies into one nation, the US Civil War had just been concluded.

    It was their opinion that the Civil War was caused in part by the US Constitution’s awarding of the residual powers to the states, rather than to the federal level of government.

    In order to prevent a similar dispute in the Great White North, it was decided that the residual powers would be granted to the federal government, rather than to the provinces.

    In the century-and-a-half since then, these constitutional decisions have had an opposite effect to what was intended.

    In the US, the federal government has been able to assert more and more authority, despite not having the residual powers.  In Canada, the federal government has been thwarted by the courts on numerous occasions, even though it it does have the residual powers.

    Why should this be so?

    The reason is that it’s much easier for a judge to tie an action of government to an enumerated power than it is for a judge to say that an action of government is not covered by any enumerated power.

    For example, the text of the BNA Act gives the provinces responsibility over “hospitals”, not “health care”.  Is health care therefore covered by the provinces’ enumerated power over hospitals, or is it covered by the federal government’s residual power?  Far more often than not, judges have ruled that any health care issue falls under the purview of the provinces. Judges prefer to have something in writing to point to, even if the language is ambiguous.

    In the US, it’s much easier to convince a judge that a particular act is covered by one of the federal government’s enumerated powers than to convince a judge that a particular act isn’t covered by the constitution at all. Obamacare being covered by the fed’s “taxing power” is a perfect example.

    Now, I’m not explicitly saying that the allocation of the residual power to the states is the constitutional flaw that doomed US governance. As a non-American, it’s not my place to make such an argument.

    • #9
  10. Fredösphere Member
    Fredösphere
    @Fredosphere

    Misthiocracy:The reason is that it’s much easier for a judge to tie an action of government to an enumerated power than it is for a judge to say that an action of government is not covered by any enumerated power.

    That’s a provocative idea. Sort of a corollary to the old “you can’t beat something with nothing” argument.

    • #10
  11. Ricochet Member
    Ricochet
    @PleatedPantsForever

    I think when they dig through our civilizations rubble in a thousand years and do the research they will pick 1913 as when everything began going to hell……income tax, direct election senators, Federal Reserve, and all right on the eve of the West’s suicide fest also known as WWI

    • #11
  12. user_1030767 Member
    user_1030767
    @TheQuestion

    At a first glance, Fredosphere’s idea makes a lot of sense to me.  I’m not sure when we’d have a chance to try it.

    Educating people on the original role of the Senate and how the 17th Amendment changed changed the structure of American government is a very good thing.  I’m sure most Americans are not aware that Senators were not always directly elected.

    • #12
  13. Misthiocracy Member
    Misthiocracy
    @Misthiocracy

    Here’s the argument I’ve read about why the 17th Amendment was a good idea, and I find it rather persuasive (though not unarguably so).

    Remember the Lincoln-Douglas debates, in which they debated issues that were of great national importance, such as slavery for example?

    Do you remember what position they were running for?

    They were running to win control of the Illinois State Legislature for their respective parties.

    If they were running for control of the state legislature, then why were they debating national issues rather than state issues?

    The answer is that this was before the 17th Amendment.

    Rather than looking at the candidates and deciding which one was best equipped to serve in the state capital, people looked at the candidates and tried to guess who they would support in Washington.

    This resulted in a lot of state legislatures being utterly incompetent when it came to the actual business of governing the state.

    The 17th Amendment was required (so the argument goes) in order to focus state politicians on issues of state importance.

    • #13
  14. Z in MT Member
    Z in MT
    @ZinMT

    The reason for the 17th amendment is that in Montana one of the Copperkings, I don’t remember if it was Daly or Clark, came very close to buying a Senate seat for himself by giving cash bribes to the state legislators.

    • #14
  15. Z in MT Member
    Z in MT
    @ZinMT

    I do like the idea of the Senate being the State Government representatives, however that was before the 16th amendment. Before that the main revenue for the Federal government was tariffs and direct capitation taxes that were collected and paid by the States. In that situation the legislatures were a brake on Federal spending, now I agree with ctlaw.

    • #15
  16. Fredösphere Member
    Fredösphere
    @Fredosphere

    Pleated Pants Forever:I think when they dig through our civilizations rubble in a thousand years and do the research they will pick 1913 as when everything began going to hell……income tax, direct election senators, Federal Reserve, and all right on the eve of the West’s suicide fest also known as WWI

    I would agree, except for the election of Harding. He ran, and even governed, on an anti-progressive agenda. Sure, he didn’t roll back everything, but the 20s were a clear improvement over the teens. And two more non-progressives were elected after that. It’s one of the few cases in history of a country regaining its slipping grasp of republican institutions. I really can’t think of any analogous situation in history–it’s as if the anti-Caesar party had won the Roman civil war, and restored the Senate.

    • #16
  17. Arahant Member
    Arahant
    @Arahant

    Misthiocracy: The 17th Amendment was required (so the argument goes) in order to focus state politicians on issues of state importance.

    From what I remember, the excuse was a scandal in which a rich man bought off the state legislature, a relatively small body, so he could be senator. It was said that no man would be rich enough to buy off the entire population. (Little did they know.)

    • #17
  18. Misthiocracy Member
    Misthiocracy
    @Misthiocracy

    Fredösphere:

    Arizona Patriot:An interesting idea, but I don’t think the founders would have liked it, because it would undermine another purpose of the Senate. The 6-year term of each Senator acts as a procedural “brake” against major legal changes based on short-term, and perhaps short-sighted, public sentiments. I think that if Senators could be replaced at will by their state government, we’d see more severe swings in policy.

    On that the founders were simply wrong. Protecting the people from the natural results of their decisions is understandable but always wrongheaded. Give it to them good ‘n’ hard, as Mencken put it.

    Ah, but even with the best possible foresight and design political systems are often (always?) biased towards certain outcomes.

    It’s somewhat unfair to say that voters deserve what they get if an electoral system is rigged to favour a particular outcome.

    The example of how state elections were fought before and after the 17th Amendment is a pretty good example of this phenomenon.

    • #18
  19. Arahant Member
    Arahant
    @Arahant

    Z in MT:I do like the idea of the Senate being the State Government representatives, however that was before the 16th amendment.Before that the main revenue for the Federal government was tariffs and direct capitation taxes that were collected and paid by the States. In that situation the legislatures were a brake on Federal spending, now I agree with ctlaw.

    Well, while we’re repealing the 17th, let’s just throw the 16th in as a twofer.

    • #19
  20. user_512412 Member
    user_512412
    @RichardFinlay

    I have often thought the Constitution needed to better define the roles and responsibilities of the Supreme Court and the states. The ninth and tenth amendments suffer from the problem pointed out by Misthiocracy. Far better to have explicitly stated that the police power is reserved to the states, etc.

    • #20
  21. JimGoneWild Coolidge
    JimGoneWild
    @JimGoneWild

    Just make the Senators elected by the state governments (repeal 17th Amend.) and make it a one term position.

    • #21
  22. Arahant Member
    Arahant
    @Arahant

    Richard Finlay:I have often thought the Constitution needed to better define the roles and responsibilities of the Supreme Court and the states. The ninth and tenth amendments suffer from the problem pointed out by Misthiocracy. Far better to have explicitly stated that the police power is reserved to the states, etc.

    As a process modeler, I agree,

    • #22
  23. Arahant Member
    Arahant
    @Arahant

    JimGoneWild:Just make the Senators elected by the state governments (repeal 17th Amend.) and make it a one term position.

    Term limits should be natural. When the state legislature changes, so will the Senators.

    • #23
  24. The King Prawn Member
    The King Prawn
    @TheKingPrawn

    I’d still rather a senator buy his seat from the state government than be elected generally. At least then he is beholden to a competing power interest.

    Best write up about the 17th I’ve read is here [pdf].

    • #24
  25. user_358258 Member
    user_358258
    @RandyWebster

    If the senators were selected by the legislatures, we probably wouldn’t see six-term senators, a good thing in itself.

    • #25
  26. Quinn the Eskimo Member
    Quinn the Eskimo
    @

    Pleated Pants Forever:I think when they dig through our civilizations rubble in a thousand years and do the research they will pick 1913 as when everything began going to hell……income tax, direct election senators, Federal Reserve, and all right on the eve of the West’s suicide fest also known as WWI

    I used to get frustrated that people used to think all of our problems started in the 1960s.  I have no great love of the 1960s, but I always believed that our problems went further back.

    • #26
  27. Muleskinner Member
    Muleskinner
    @Muleskinner

    So now senators treat the states like any other special interest group, only one without money to contribute to their endless campaigning.

    • #27
  28. Arahant Member
    Arahant
    @Arahant

    Quinn the Eskimo:

    Pleated Pants Forever:I think when they dig through our civilizations rubble in a thousand years and do the research they will pick 1913 as when everything began going to hell……income tax, direct election senators, Federal Reserve, and all right on the eve of the West’s suicide fest also known as WWI

    I used to get frustrated that people used to think all of our problems started in the 1960s. I have no great love of the 1960s, but I always believed that our problems went further back.

    Personally, I’m for blaming a certain Mr. Lincoln.

    • #28
  29. Boilermaker Member
    Boilermaker
    @Boilermaker

    Great comments all.

    My position on the 17th is that is made it more difficult to hold Senators accountable for their actions, or at least, not as quickly accountable.  For instance, if a Senator voted for major legislation, such as the ACA, and his/her state did not like those actions, then the Senator could be recalled for such actions within the six year election cycle before the 17th. To me, the 17th weakened the powers of the states to control their Senators and these Senators become members of the Beltway.

    • #29
  30. user_2967 Member
    user_2967
    @MatthewGilley

    Any person who has made this argument to me has persuaded me it is sound, principled, sensible, and desirable. I have never been comfortable with the idea, though, solely on less high-minded prudential grounds. Absent the 17th, Ted Cruz would not be a Texas Senator, Ron Johnson would never have made it, I doubt Jim DeMint or Tim Scott would represent South Carolina, Tom Cotton would be unlikely in Arkansas, and Charlie Crist might well represent Florida instead of Marco Rubio; Mike Lee might make it but Mark Kirk would have no shot whatsoever in Illinois. All I say is be careful what we wish for in this regard – the end result may very well be a Senate that drives us even crazier than it does now.

    • #30

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