Tuesday, June 8, 2010

Repeal the 17th Amendment!

I ran across this riff on the internet a year or two ago. I laughed---more far-right swamp fever. Reverse the direct election of senators instead of the state legislatures appointing them. 17th Amendment, ratified 1913. Many Americans would be surprised we only voted directly for our senators since 1913.

"Let the state legislatures appoint the Senate," Virginia's George Mason urged at the Philadelphia Convention of 1787, lest a newly empowered federal government "swallow up the state legislatures." The motion carried unanimously after Mason's remarks.

Amending the Constitution has been a rare, well-considered, and largely successful thing. We've only had 27 amendments in 200+ years, and the first 10, The Bill of Rights, were pretty much a promised and required fix-it ticket to get the original Constitution ratified.

---The 12th fixed the technical problem of Aaron Burr and Thomas Jefferson getting the same number of votes in the electoral college. Nobody actually wanted Burr for president. Now, the electoral college must have two separate elections for president and vice president. No big deal there.

---The 13th freed the slaves. Cool.

---The 14th Amendment. Let's just say "original intent" might have phrased it better. Most constitutional hassles these days ride on whateverthehell it might mean.

---The 15th gave all males the right to vote, including ex-slaves. [The 19th, females, too.]

---The 16th established a constitutional right for the federal government to impose an Income Tax. Well, it was what it was and it is what it is. Any discussion of it is swamp fever. Sorry, Mr. Snipes.

---The 18th banned booze. The 21st repealed it. [Hurrah!]

---The 22nd, in reaction to FDR's 4 consecutive terms, limited presidents to only two. Questionable in some, many, or most quarters, since the only president it really affected was Bill Clinton, who would have run again. He loved being president. And despite his trevails in office, by any and all accounts would have defeated any GOP candidate and won a 3rd term.

---The amendments I skipped are largely procedural, like giving 18-yr-olds the vote [#26].

So, what of the 17th Amendment, you may ask, and surely you are by now if you've read this far. What the hell are you on about now, TVD?

I think it's the difference between democracy and republicanism. Before the passage of the 17th, most states appointed their senators, by vote of the state legislature. Representative democracy via representative democracy. Republicanism.

Full story at Wiki
, reasonably accurate.

Federalism, that senators were forced to be responsible to the concerns of their states, or at least those of their state legislatures. Devolvement of power, of demagoguery that's more suited to the House of Representatives, or just frustrating the will of the people by putting the pols in the state legislature in their way?

I don't have a clear and coherent opinion on this. I do know that a charismatic [or, wielding the power of incumbency] senator can win the popular vote most every time. By accumulating power and financial clout [contributions from outside his state], he can become invulnerable to election challenges, and accountability to the few in his state who actually pay attention to politics, and his record. No president enjoys such unaccountability to his constituents.

On the other hand, a senator is supposed to be a "cooling" force against the passions of the day. That's why James Madison---quite brilliantly in Federalist 63---set Senate terms at 6 years, even longer than the president's.

Anywayz, after poking through the history and the arguments, what I wanted to open is that "Repeal the 17th Amendment" isn't just swamp fever.

I thought Bill Clinton was a pretty good president. I don't think the question or clarion call will arise with President Obama, but mebbe we should repeal the 22nd, just in case another Bill Clinton shows up. As one wag once said, we could do worse, and often have.


yoshi said...

I don't have an opinion on the 17th amendment but I have a strong opinion of the 22nd. I make my living mitigating risk and the more checks on the system the better. Term limits are such a check. Clinton clearly couldn't manage the office* and neither could his predecessor. But for very different reasons.

I also believe change is good and term limits force that.

*I personally think Clinton understood domestic security matters better than Bush W. But his shortcomings in other areas canceled that out.

Naum said...

That Wikipedia article referenced doesn't detail the impetus behind the 17th amendment — how Senators were bought and sold and the whole mess of corruption… …not to say that there doesn't exist big problems with the current system… …but they look like choirboys compared to how filthy the setup was late 19th century/early 20th century…

On the 22nd amendment, do not like such "term limits" and do not believe they have the effect supporters champion… …FDR was a popular president, you allude to Clinton but Reagan may have been a lock in 1988, and that would have been a peculiar scenario, with a nation's top executive branch office held by somebody in the deep throes of Alzheimers… …still, don't like taking the choice away from the electorate…

Phil Johnson said...

If anyone thinks anything is lacking regarding what the 17th does--it seems to me--it would be far better they get working on the development of their ideas and presenting them to the public rather than building on the morass of dissatisfaction that is getting to be so tiresome in our society.

T. Greer said...

For what it is worth, I wrote a post on exactly this subject last week. The basic case against it is laid out there.

Tom Van Dyke said...

Senior seems surprised that the Senate has become a second House of Representatives. She should not be. We have thrown out the institutional checks the framers designed to prevent the Senate from becoming slave to 'popular fluctuations.' It was only a matter of time before the norms that maintained the Senate's dignity were also discarded.

Interesting, Mr. Greer. It can hardly be denied that the Senate is now simply a House with longer terms. Except for the filibuster rule, which exists as a "gentlemen's agreement" and not law, I can't think of a substantive difference between the chambers.

So, too, Senators rather represent themselves personally now instead of the Great State they came from.

Corruption on the state level was simply replaced by corruption on the national level. Senatorial elections have became national affairs; the senators who win are those who gain the financial and political support of the corporations, donors, and politicians from the nation's cashpots. The direct representation promised by the Seventeenth Amendment has proved itself to be illusionary.

Likely. The 17th just cut out the middleman.

It's not as though the 17th will be repealed; the structural barriers are too high. But it does illustrate the Law of Unintended Consequences, and the 17th destroyed a unique mechanism for making the national government accountable to state government.

Anonymous said...

Just 3 points and the first one is minor to the subject. The articles that became the Bill of Rights included a dozen amendments and those that passed were 3-12, not the first 10. If freedom of speech is number one in your heart, you might need to consider why it was not theirs.

Second, the constitutional limit on the President does not exist to limit President's we like now, but to avoid future tyrants. Only Roosevelts thought they were more important that George Washington's legacy.

Third, direct election of senators gained momentum after the end of reconstruction and it appears to hold two basic charms: more representation of the people and less representation of states. Since the House had long given the masses short thrift in the size of the house (see the first article to the Constitution), states with more political influence lost appeal after 1865. Just a thought.

Naum said...

backward, into the future

After gaining control of much of the world’s copper supply, the 19th-century robber baron William A. Clark set out to buy a seat in the United States Senate. Openly, he went about bribing Montana legislators, $10,000 a vote, the cash paid in monogrammed envelopes.… …Mark Twain called Clark “as rotten a human being as can be found anywhere under the flag,” but the senator did not show any shame. “I never bought a man who wasn’t for sale,” he said.… …. And it was stone-hearted, Gilded Age titans like Clark who prompted this populist movement in the West.… …Curious, then, that one of the truly regressive ideas of the radical conservatives now seizing control of the Republican Party in the West and elsewhere is a bid to repeal the 17th Amendment. The Republican nominees for the Senate and House from two mountain states backed this Paleolithic idea before winning the party nod.… …Somehow, taking away the citizens’ right to elect their own senators is supposed to diminish the influence of big money and bring control to the local level. And how did that work in Clark’s day? The rotten senator from Montana spent much of his single term living at his mansion in Manhattan, having no need to breathe the same air as constituents back in Butte.

department of colossally stupid ideas

What I want to point out is how patently stupid repealing the 17th Amendment would be for Republicans and conservatives--and yes, tea partiers--based on a simple fact: Democrats have long dominated the control of state legislatures. And they currently enjoy a level of dominance unlike they've experienced since the late 1980s and early 1990s.… …Following the 2008 elections, according to National Conference of State Legislative data,# Democrats control both chambers in 27 legislatures, to eight for the Republicans, with 14 states split. (Nebraska is unicameral and non-partisan.) Oh, and two decades ago the Democratic dominance of state legislatures included a lot more southern states, which I suppose could have produced some conservative Democrats or even a few Republicans as senators; today, that's far less likely to happen because the set of Democratically-controlled state legislature is more non-south. In ideological terms, then, the current Democratic majorities may be closer to the post-war high-water marks in the mid-1970s.

Tom Van Dyke said...

Certainly chilling news for Republicans, that they control only 8 statehouses, Democrats 27, with 14 split.

But as the author of the 2nd article notes,

Nor am I trying to trigger a political philosophy debate about the case for and against the direct, popular election of US senators...

Well, this is one. Partisanship has nothing to do with it.

One result I could see would be that the legislatures would tend toward more centrist, "compromise" candidates: the Senate would be less polarized, which would suit its intended purpose of "cooling down" the transient sentiments of the day.

An argument I saw somewhere saw that "unfunded mandates" would disappear if senators had to answer to legislatures who had to pay for them.

And I remember reading somewhere about a senator who'd never even met the leaders of the state legislature, except Joe who he talked to for a few minutes at a party once.

As for the corrupt William A. Clark whom Naum mentions, it wasn't terribly different from carpetbagging senators like Hillary Clinton. But the political lesson here is perhaps it's not a good idea to amend the Constitution just because of a jerk or six.

The problem with corruption and the corrupt is that they either outsmart even the best-written law, or just obscenely break it. The temptation to design a less corruptible system is often whistling in the wind, and shows a bit of hubris about one's own power to design systems superior to human nature and cleverness.

To Mr. Anonymous, his first point is of course correct.

Second, the constitutional limit on the President does not exist to limit Presidents we like now, but to avoid future tyrants. Only Roosevelts thought they were more important that George Washington's legacy.

I omitted Ronald Reagan in the original assay, as he wouldn't have run, either because of his age [77] or respect for precedent, or both.

However, Bill Clinton certainly would have run [he's said so], and he'd have won. And whatever his failings, after losing Congress in 1994, he governed from the center, so the word "tyrant" just doesn't fit. To touch on an earlier point, I think a Democrat-dominated Senate today would have a lot more Bill Clintons and fewer [fill in the blank, I'm trying to avoid current partisanship here].

To my mind, that would be a better senate, and one more in keeping with Madison, The Federalist Papers', and George Mason's vision for it---Mason's idea was carried unanimously---rather than what T. Greer astutely called the current dynamic, "parliamentary," clearly a tyranny of the majority rather than "consensus."

Two very different things.

King of Ireland said...

Repeal it.

Brad Hart said...

Perhaps we should make the Senate like the House of Lords...you must have a "title" of "nobility to qualify. Hell, we could turn it into a reality program: American Idol(s)

Tom Van Dyke said...

Actually, Brad, John Adams wrote to Jefferson on a proposed "House of Lords." Shall I look it up for you, or are you able to look it up for yourself?

Let me know, if you're genuinely interested. Regardless, Adams was clearly tempted; Jefferson sent back an emphatic "no" and that was the end of it.

The 17th Amendment was adopted in 1913. Not sure where you're going with this, Brad.

Brad Hart said...

Ugh...just being silly. I thought the "American Idol(s)" remark would give that away.


Anonymous said...

Anonymous again.

Tom, just a clarification, I agree with your assessment of both Reagan and Clinton. Because of the Constitutional limits, neither had the opportunity to run again and I did not mean to imply any tyrannical impulses from either man. Any President, too long in the office, would risk becoming more important that the office itself. In this vein, Washington appears to have recognized the anti-Federalist's arguments for term limits and acted accordingly. Neither Roosevelt seemed to consider the consequences with only Washington's precedent as guidance.

Party politics aside, I agree a Senate that represented the states was the better model. I would expect that party imbalances would dissolve over time as local politics gained importance. Many of the states suffer from redistricting issues that usurp the majority's interest. My home state of Alabama would be included.

It might cure a lot of ills. Campaigns for Senate would virtually disappear and the cost structure would change, although I doubt it would get cheaper to obtain (since the Senate is not growing in number, it continues to be a rare, and accordingly, scarce commodity). Hopefully, the lower levels of pandering required for election might make them a bit more frugal.

Tom, thanks for the forum. This is one of my favorite blogs. I will get my account information updated and post with less anonymity in the future.


Phil Johnson said...

All of which brings up the idea of Party Politics.
As long as we're talking about Constitutional amendments, let's think about doing away with "Party Politcs" for it is THERE where the societal divisiveness and corruption seems to originate. It's all about winning and at any cost.
At least it seems so to me having been an actual dues paying member of both parties.

Tom Van Dyke said...

Thx, Matt. Nice to hear from you.

Paul Swendson said...

I tend to think that democratic elections are the best of the bad options. You can talk all day about the negatives of the 17th amendment or the positives of the 22nd, but in my mind, it should be left to the voters. If they want to elect Strom Thurmond for 100 years, then that is their choice. If we want another FDR, that is also our choice. Some people seem to think that we should protect the voters from themselves. This is why several states have term limits.

Tom Van Dyke said...

If they want to elect Strom Thurmond for 100 years, then that is their choice.

Tautological, sir, if offered as serious argument contra the Senate as conceived by Madison and George Mason, who hoped to spare the republic from the excesses [and sometimes, inhibitions] inherent to pure democracy. Think Weimar, if you will.

The Founders were republicans; they feared democracy, its passions, its lameness.

Perhaps they were wrong about all that, but the burden of proof lies on your political philosophy, not theirs.

I think Strom Thurmond would have been bounced by the South Carolina legislature when his expiration date arrived in the 1970s, sans a 17th Amendment.

The floor is yours, if this isn't just a partisan grenade-toss. You got some game.

King of Ireland said...

"Some people seem to think that we should protect the voters from themselves"

Tom already point what I am about to say out but I think your error is more clear in this quote than the one he used.

Any reading of the Federalist papers tells us that this is EXACTLY WHAT THE FOUNDERS HAD IN MIND. The fact that many seem to want to reject it now without understanding why they put it in there in the first place is telling of why our republic that was handed down to us is in serious jeopardy.

We are all fairly far down the road to Serfdom because we ignore the ideas that culminated in the founding that helped to pull us out.

bpabbott said...

Re: ""Some people seem to think that we should protect [people] from themselves.""

Or more correctly, we need to protect people from other people.

King of Ireland said...


I guess you could put it that way.

Brian Tubbs said...

Moving to the direct election of US senators was motivated, in large part, by the "machine politics" corruption of the late 1800s and early 1900s. Having the people directly elect senators was seen as a counter to the machinations that often controlled state legislatures.

Whether it's now time to revert back to state legislatures picking senators does indeed make for an interesting discussion.

Good post, Tom.

King of Ireland said...

"Whether it's now time to revert back to state legislatures picking senators does indeed make for an interesting discussion."

I think the pedulum has shifted the other way and it is time personally. I also think this type of thinking is in line with someone like Madison that argued to increase the Federal govt. in the Federalist papers and then argued against it when things tipped out of balance in the Resolutions of 98.