Friday, May 28, 2010

Just As Much About The 17th Amendment As You've Ever Wanted To Know

The latest outlandish idea of the Tea Party’s to move into the semi-mainstream is repealing the 17th Amendment. The 17th Amendment, for those of us who haven’t memorized the Amendments to the Constitution by heart (and why haven’t you?), is the amendment providing for the direct election of Senators. Previously, Senators were elected by the state legislatures (which were, in turn, elected by the people).

So what, exactly, is the argument for this? Well, apparently, the idea is state’s rights. Any and all rights, apparently, including the ones that would take away people’s rights, apparently. The idea, writes Tony Blankley, is to “It struck me that the best way to revive the 10th Amendment is to repeal the 17th Amendment.”

The stated aim, thusly, is pretty odd. Let’s take the specific claim here: revive the 10th Amendment. Well, here’s the 10th Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” But indirect election wasn’t a non-delegated power at all; in fact, it was a delegated one, until it was given to the people (the other, oft-ignored portion of the 10th Amendment).

Let’s take another argument against the 17th Amendment, from Jason Radtke of the Virginia Tea Party:
A Constitutional Amendment to repeal the 17th amendment of the Constitution. This would reinstitute the process where senators are chosen by their state legislators so that states’ interests are represented in Congress. This is how it was done for the first 125 years of our Republic. Our Founders’ were intentional about making the elections of congressman and senators separate, so that the interests of the state and people are equally represented. The 17th Amendment has had a negative effect on the checks and balances that our Founders’ had in mind. They never saw a need for a recall provision for the very fact that states chose their senators and not the people.
This turns out to be historically dodgy. Invoking the Founders collectively ignores the very real differences between them—if Madison, Monroe, Hamilton and Ben Franklin had had their way, there wouldn’t have been a Senate in the first place. So it simply isn’t so to speak of the Founders’ collective will in this way. (By the way, rather amusingly, here’s one of the very next solutions he has for fixing the Senate):

A constitutional amendment to recall senators. While we don’t currently have a recall provision, there is nothing to keep us from amending the Constitution in order to insert this language.
Mr. Radtke, the Founders saw no reason a recall provision and we made do without a recall provision for Senators for the first 234 years of this republic, so I think we can do just fine without one! For further amusement, let’s contrast this argument to another argument he approvingly cites re: the evils of the 17th Amendment:

Federalist No. 62 explains the reason for senators being appointed by state legislatures: to “[give] to the State governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems.” Unfortunately, the Progressives forced the 17th Amendment upon an unknowing public in 1913 — whereby senators are now elected by the people. That means by those who will line their pockets, thereby opening the floodgates to unlimited federal power. Because of the 17th Amendment, the federal government can run roughshod over the state legislatures, passing unfunded mandates and dictating what they must do, hence, corrupting the purpose of the original Constitution.
Besides the fact that the amendment process back then was extremely rigorous—the whole three-quarters of state’s legislatures and three-quarters of the Congress, etc. etc.—his citation of this article is pretty amusing in context of his desire to recall Senators. You know who really liked—even pioneered—recall provisions? The Progressives.

So their history is off, but what about the philosophy—the theory, if you will—of their idea? Well, I think it’s pretty odd. Let’s first do Radtke and then Blankley. Radtke says that the Founders’ methods separated elections of Senators and Representatives so that “the interests of the state and people are equally represented.” But why should they be equally be represented? Why are we concerned about giving state governments as a metaphysical entity representation? Shouldn’t we be more concerned with giving the actual people representation?

Or, let’s take Blankley. His theory is that “…it has been since 1913, when the 17th Amendment was enacted into law, that the 10th Amendment increasingly began to be ignored.” But he himself cites example of the 10th Amendment being ignored previous to 1913; after, of course, is that whole thing called segregation, which was justified by, oh, you know state’s rights.

And here’s the world after the repeal of the 17th Amendment:

Senators still would be just as likely to be corrupted. But the corruption would be dispersed to the 50 separate state legislatures. The corruption more often would be on behalf of state interests. And its remedy would be achievable by the vigilance of voters for more responsive state legislative seats (typically, about less than 50,000 residences per state legislator), rather than Senate seats (the entire population of the state -- usually millions.)
This is, of course, very wrong. For one, let’s say you’re a lobbyist planning on bribing government to get a desired response. Well, you’d bribe state legislatures…but you’d still bribe Senators in Washington! If anything, repealing the 17th Amendment would increase the amount of bribery.

And, by the way, state and local government is pretty corrupt. Sandra Day O’Connor has been crusading to take judges off of the ballot for this very reason: there’s just not as much scrutiny at a local level. Here’s Jamelle Bouie on the larger point:

Not too long ago, the Daily Beast had a gallery of the most corrupt states in the union, which is worth checking out. In the last ten years, my home state of Virginia, which ranks number 2 on the list of most corrupt states, has seen 14 convictions for public corruption, 9 convictions for racketeering and extortion, 18 convictions for forgery and counterfeiting, 5 convictions for embezzlement, and a nice helping of fraud. Indeed, there seems to be a fair amount of low (or high) level corruption in state capitals around the country, which really isn’t that much of a shock.
And let’s look at the opposite claim: to the degree that there is scrutiny of our governments, it’s the federal government that receives far and away the most scrutiny, of the most minor provisions. Take Sarah Palin’s Facebook post about death panels leading to the immediate striking of anything resembling death panels in the bill, or Joe Wilson removing all coverage for immigrants in the health care bill. That’s direct accountability generated by activist coverage. The very virtue that Tea Party activists want has already been achieved. On the other hand, we know that the Department of the Interior—perhaps the least sexy department, and certainly the one that’s least Washington-y—was the very worst of the regulators in the Bush years and whose incompetence directly led to the Deepwater Horizon catastrophe. Guess some scrutiny there would’ve been nice, huh? Taking away people’s right to vote and giving their right to vote to state legislatures would achieve exactly that effect. So what’s the status of this idea? Well, apparently every Republican has to sign on to sail right off of a cliff.

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