November 18, 2010

Returning States' Role in Civic Structure

Justin Katz

One can sense a desire, in the broadly defined Tea Party movement, to repeal something among the many decisions, amendments, and statutes that have diluted the Founders' experiment of divided government powers. Todd Zywicki marks the introduction of the Seventeenth Amendment to the list of candidates for rethinking:

Election of senators by state legislatures was a cornerstone of two of the most important "auxiliary precautions": federalism and the separation of powers. Absent some direct grant of federal influence to state governments, the latter would be in peril of being "swallowed up," to use George Mason's phrase. Even arch-centralizer Hamilton recognized that this institutional protection was necessary to safeguard state autonomy. In addition, the Senate was seen as a means of linking the state governments together with the federal one. Senators' constituents would be state legislators rather than the people, and through their senators the states could influence federal legislation or even propose constitutional amendments under Article V of the Constitution.

The Seventeenth Amendment ended all that, bringing about the master-servant relationship between the federal and state governments that the original constitutional design sought to prevent. Before the Seventeenth Amendment, the now-widespread Washington practice of commandeering the states for federal ends — through such actions as "unfunded mandates," laws requiring states to implement voter-registration policies that enable fraud (such as the "Motor Voter" law signed by Bill Clinton), and the provisions of Obamacare that override state policy decisions — would have been unthinkable. Instead, senators today act all but identically to House members, treating federalism as a matter of political expediency rather than constitutional principle.

The Seventeenth Amendment also, it seems to me, put another arrow in the notion of federalism by giving special interests even more opportunity to sow together constituencies across state borders. There are points to be made on both sides, but there are reasons for representative government on multiple tiers.

In general, though, I doubt the prospects of passing amendments to address this sort of complex civic question. What's needed, perhaps, is a single amendment — the Return to Foundations Amendment, or something — that pulls together several of the ideas for repeal and modification that are floating around as separate movements.

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I'm all for waxing theoretical, but do you actually think that ending direct elections for senators would be a good idea on a practical level? There's already way too much wheeling and dealing in state legislatures - do you really want to take away an individual democratic choice and give it back to political elites? Part of the reason the 17th amendment was ratified was because the legislatures were so prone to bribery and corruption - I'm not sure much has changed.

I for one would rather have my senatorial candidates trying to convince me to vote for them in a much wider marketplace of ideas than have them try to convince the less transparent, corruption-prone General Assembly.

Posted by: Curious at November 18, 2010 7:51 PM

Teresa Paiva-Weed Goes to Washington. Now there's an idea!

Interesting idea though... For all the complaining we do about leadership in the House and Senate on Smith Hill, Weed and Fox are definitely experts at getting what they want. Maybe letting the state senate choose the senator isn't such a bad idea.

Or it could be horrible, like George says.

Posted by: mangeek at November 18, 2010 8:24 PM

I didn't mean that I endorse the idea, just that it's interesting and worth consideration.

Senator Reed was in the General Assembly. Senator Whitehouse is a political insider. What would be the difference, really?

Here's one difference: As it currently stands, outside interests give money directly to candidates to spend wooing/duping voters. Were state legislatures responsible for appointing Senators such national bribes would go to legislators, which would increase the value of those seats, which would give multiple parties an interest in securing those seats.

Speaking of parties, national political parties would have more incentive to party build from the ground up, which might lead to a stronger opposition party in Rhode Island.

Posted by: Justin Katz at November 18, 2010 8:41 PM

Bad idea.It goes directly against the grain of American thinking.
The Constitution is not the "living document"the left would have us believe,but it does have an amendment process because the founders knew that no man made instrument is immutable.
Wtihout the 17th amendment we'd never have a Scott Brown situation for starters.That saved the country from disaster.

Posted by: joe bernstein at November 19, 2010 5:59 AM

But we wouldn't have needed a Scott Brown salvation (which ultimately broke on the rocks of Democrat determination, anyway), because state legislatures in Republican/conservative strongholds wouldn't have been as quick to get caught up in the Obama wave of 2008 (or the anti-Bush wave of 2006) as the voters. The Senate would respond to public sentiment more slowly, acting as a centrist ballast.

Posted by: Justin Katz at November 19, 2010 6:23 AM

The Senate acts as a speedbrake now even with direct election of Senators.
The only amendment that has ever been reversed was Prhobition,which was an insane idea from the get-go.
I don't trust the state legislatures I've seen in NY,California,Illinois,and RI.There's too much corruption,and in the case of RI single party total dominance.We'd be cursed with Sheldon Whitehouse forever.
The conservative effort in this state should be to defeat Shelly,rather than get all wound up over the presidential election because we know our electoral votes will go to whomever the Dems nominate.

Posted by: joe bernstein at November 20, 2010 6:00 AM
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