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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.
Published in General
Anything that shortens the ballot in California is good. If repealing 17 does that, it is therefore good. Valuable seconds will be spared that may be applied to deciding what a group of people I know nothing about should do to/for another group of people I know nothing about–which I normally class in “none of my damned business” except when required not to on election day. Valuable air-time will be freed up to inform me on such questions in 30-second ads featuring opinions offered by people JUST LIKE ME. These benefits will accrue to the numerous offices I don’t entirely understand and which might better be decided by coin-flip or knife-fight for all the information that exists on the offices or the seekers.
Less cynically, what does indefinite term mean? The senator becomes a peer of the realm? The senator serves at the pleasure of the State? The terms are variable among the States? Why are the founders tagged with the flaw? Please respond in the form of a 30-second TV ad (radio also acceptable) delivered by some one JUST LIKE ME.
Explicitly reserving power doesn’t work either. There are 3 named parties in the Constitution of the United States: the People, the States, and the Federal Government. The Constitution is a document delegating authority from the People to the States and to the Federal Government.
The 2nd Amendment explicitly states that “the right of the people (the named party conferring authority) to keep and bear arms shall not be infringed.” Any logical assessment of this clause precludes either the Federal or State governments from regulating or restricting possession or use of firearms (when not used in the commission of a crime).
Nevertheless, both the Federal and State governments have acted to restrict the sale, possession, and lawful use of firearms despite this authority being explicitly denied to them and reserved to the people.
That really isn’t the point. The point is that the States formed the Federal Government and were represented. It was a very big deal at the founding. They are no longer represented due to the 17th. It’s like if you formed a corporation and your grandkids took your stock away from you so they could be in charge, just because you made a mistake or two. Then they run the corporation into the ground. (Not my most exact analogy on this, but I hope you can see the point.)
I do, and mostly agree with you. My only point is that going back to the original formulation would have consequences, not all of which I would welcome (in the short term, at least).
Not quite.
After all, a supermajority (37 out of 48) of the states agreed to the amendment. Nobody took the power to appoint senators away from them.
A better analogy might be a corporation where the Board of Directors votes to make the shareholders directly responsible for choosing the CEO.
Nobody is arguing that the text of a constitution prevents any level of government from taking unconstitutional actions. No piece of paper can prevent the existence of crapweasels.
The argument is that judges are more likely to agree that a disputed action is covered by an enumerated power than to agree that a disputed action isn’t covered by any enumerated power and is therefore reserved to the people. Not always, of course, but in more than 50% of cases.
I don’t have any statistics in front of me, but I’m willing to wager dollars-to-doughnuts that the Supreme Court has struck down more gun control laws than it has held up, precisely because the language in the constitution is so explicit on that matter.
One consequence (arguably) being that state legislatures would be elected not based on their ability to actually govern the state, but rather on which party the voters wanted to send to Washington.
Yes, if there is any way whatsoever to contort language into making an issue fall under an enumerated power, someone will eventually do it in a way that convinces a judge.
It’s human nature to find a nice labeled container to put things in.
“This case falls outside the authority of granted to the Federal government. This court therefore does not have jurisdiction, and I am referring it to your state courts” – No Federal Judge, Ever.
This is probably true. My example was in response to Richard’s thought that explicitly reserving certain authorities to the states or people would have been beneficial. I’m just pointing out that where we actually did this very thing, it has been largely ignored.
The Supreme Court for many years carefully avoided ever using or making any reference whatsoever to the 2nd Amendment because it is actually pretty hard to misinterpret if one has studied English sentence structure, and leaves both the States and Federal governments without a leg to stand on.
They have “interpreted” that the right enumerated in the amendment which “shall not be infringed” is “not unlimited” while leaving the question of what exactly that means. Apparently we won’t know the extent of our the rights we did not grant to the government (and therefore the Supreme Court) until we find out what the Court is willing to grant us. The Supreme Court has declared it has authority to decide the extent of authority explicitly denied to it as part of the Federal government, and will get back to us later with the details.
So, regardless of the fact that the Supreme Court has lately decided to grant citizens some portion of the rights they exclusively reserved for themselves 239 years ago, the fact remains that explicitly enumerating authority that the Federal and State governments do not have has had no effect.
Therefore, if we had enumerated more powers that were restricted to the States or the People, it would be logical to conclude that those would also have had no effect.
Never thought much about the 17th when I was younger, but after reading the Federalist Papers and reading about the Progressive Era (the real source of the 16th, 17th, 18th, and 19th Amendments), I realized that it was part of the liberal fascists’ (H/T: Jonah) coup attempt against the constitution. Misthiocracy points out above that the states agreed to limit their own power, but it really was more like what we think of as political correctness today: everyone hates it, but most comply.
My feeling today is that the 17th is more of a symptom than a cause of the decay of constitutionalism. To revert to the Federalist, Madison wrote in Nos. 45 & 46 that that the powers of the states would not be destroyed by the new government, and in fact, that the federal government would have to watch out for the states. Hamilton, in explaining the Senate in No. 62, said that it would be a “residuum of sovereignty” for the states. I’m not sure that it ever worked out the way that the Founders intended. There aren’t many memorable examples of the states using the Senate to counter the federal government. The real death blow, however, came in 1865 when the states were permanently demoted and forced to be subservient to the federal power. I have a feeling that the 17th could pass because everyone knew that the residuum of sovereignty had been extinguished.
Sorry, but I think it’s false equivalence to compare self-censoring one’s words in order to avoid fights and supermajorities of US states voting to make major changes to the US Constitution.
Political correctness is about individuals refraining from speaking their mind. Constitutional amendments are about taking positive action to enact change, and are notoriously difficult to pass.
I can buy a politician going along with bills they disagree with here and there as part of the regular horse-trading of politics, but I have a hard time buying a supermajority of US states doing the same thing to pass something as consequential as a constitutional amendment.