17th Amendment Ate Liberty   Leave a comment

The 17th Amendment made the Senate more democratic … and that has not been a good thing. The second Progressive Era amendment provided for direct election of senators. That sounds good, right? Not so much. It has led to the massive expansion of federal power over the past several decades, for one thing.

The United States, in case you were asleep in Government class during the five minutes in which the teacher covered it, is not a democracy. We are a constitutional republic. Many of our strengths lie in our undemocratic institutions. Took a look at the Supreme Court. Is that a democratic institution? Heck, no! They’re appointed for life, not elected every 4-6 years. Look closely at the Constitution itself. It requires any changes to its structure to have the consent of a supermajority and it contains the Bill of Rights, which is an explicitly counter-majoritarian component of national law. Strong protections for free speech and religion, the right to bear arms, due process, privacy and the right to a jury trial are triumphs of minority rights. Liberty, not democracy, is America’s highest idea.

Thus, the American system was deliberately designed to balance power between the various branches of government, guaranteeing individual rights against majority rule and protecting the people from tyranny whether we liked it or not. The United States government was arranged as a permanent bulwark against federal encroachment. “Changing times” wasn’t an acceptable justification for the undoing of this system in 1913 and it still isn’t. Wilson-era progressive philosophy aside, the federal government was not intended to be a wholly separated layer of government. It was meant to be intertwined with the states to such an extent that it could not ride roughshod over their interests without strong opposition.

As James Madison resolved during the debate over the Bill of Rights:

The state legislatures will jealously and closely watch the operations of this Government, and be able to resist with more effect every assumption of power, than any other power on earth can do; and the greatest opponents to a Federal government admit the State Legislatures to be sure guardians of the people’s liberty.

Madison made clear in the Federalist Papers, in order to defend the vertical checks and balances that allow America’s federal system to function, senators would be “elected absolutely and exclusively by state legislatures.” The House is the people’s representative body. The Senate was supposed to represent the states. Lest the federal government “swallow up the state legislatures,” George Mason insisted to his fellow convention delegates in Philadelphia, “let the state legislatures appoint the Senate.” The delegates backed him unanimously.

It makes no sense to argue that returning to the original arrangement would “take away” the “rights” of the people than it does to maintain that not being able to vote directly for Supreme Court justices violates our democracy. Everything has its place! The Senate was not designed to indulge popular sovereignty. Although it’s been a while since the original intent of the Constitution was recognized, the states are not regional departments of the federal government. The architects of our Constitution hard-wired the state legislatures into the documents structure, so that states would have a working mechanism by which to resist the expansion of federal power.

The 17th Amendment short-circuited that. The states lost their place at the federal table when the Senate became another House of Representatives. Federalism was deeply damaged and “all government, domestic and foreign, in little as in great things,” is “drawn to Washington as the center of all power” (Thomas Jefferson). Returning the selection of senators to state legislatures would help to focus citizens’ eyes locally, where they belong.

The primary argue for the 17th Amendment in 1913 was a reduction in corruption. Money was said to be rife in politics; direct elections would stamp it out. Lobbying by big business was staining the republic; direct elections would cut the buggers off at the knee. The small constituency that a senator served effectively gave him tenure; an amendment would make the body competitive. Senates were exhibiting extreme moral turpitude; the rigors of direct election would make them moral.

Did we get what we wanted by taking a machete to Madison’s handiwork? There is more money in politics than ever before; direct elections have served only to cut out the middleman between lobbyists and politicians; senators rarely lose their seats; and Ted Kennedy killed a woman and got away with it. Need I elaborate?

In retrospect, the amendment failed to accomplish what was expected of it, and in most cases failed dismally. Exorbitant expenditures, alliances with well-financed lobby groups, and electioneering sleights-of-hand have continued to characterize Senate campaigns long after the constitutional nostrum was implemented. In fact, such tendencies have grown increasingly problematic. (CH Hoebeke, Humanitas, 1996)

The 17th is a testament to overarching modernist hubris – an embrasure of temporary over the permanent.  Sadly, it benefits those who would be required to amend it, so the only chance for it to be repealed/amended is a Constitutional convention.  Ain’t democracy grand?

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