Thursday, October 19, 2006

17th Amendment

I love being invited to comment on things. In this case, I have been pointed towards an article from September of 2002 by John W. Dean on the 17th Amendment to the Constitution and whether it should be repealed. As a brief reminder, the 17th Amendment changed the way that senators were selected. Originally senators were chosen by state legislators while representatives in the house were selected by direct election. That structure, and the election of the president by the electoral college are the two fundamental differences between our government and a pure democracy.

Dean suggests that the 17th Amendment, along with the 16th Amendment (legalized income taxes) were the driving forces behind the expansion of the federal government in the last century. He also points to Federalist No. 10 which suggests that the purpose of the Senate is different from the purpose of the House of Representatives. The Senate was not expected to represent the citizens of their state, but rather the government of their state. In fact, what James Madison describes for the Senate sounds more like what we might have if the Republican Governors Association and the Democratic Governors Association were to come together in a governing body.

The article cites law professor Todd Zywicki from George Mason University in saying that "the true backers of the 17th amendment were special interests" who "hoped direct elections would increase their control, since [direct elections] would let [the special interests] appeal directly to the electorate, as well as provide their essential political fuel - money." Although that assessment sounds right, I cannot prove it. I can say that the change has voided any significant difference between Senators and Representatives. Now the difference is that Senators serve longer terms and do not represent a set number of constituents.

Dean concludes:

Repeal of the amendment would restore both federalism and bicameralism. It would also have a dramatic and positive effect on campaign spending. Senate races are currently among the most expensive. But if state legislatures were the focus of campaigns, more candidates might get more access with less money -- decidedly a good thing.
Zywicki adds:
Absent a change of heart in the American populace and a better understanding of the beneficial role played by limitations on direct democracy, it is difficult to imagine a movement to repeal the 17th amendment.

I agree on both counts. I believe that the founders did not structure our government as they did based on whims. They knew what they were doing and most of us do not understand what they were doing, much less why they were doing it. They allowed for amendments because they knew it would be necessary to make changes at times - I think the founders would have applauded the 14th Amendment. But I also think that it is not wise for us to use the amendment process to fundamentally change the form of government that they set up. Sadly, most citizens are not sufficiently informed to understand the differences caused by this amendment.


Reach Upward said...

If we were to repeal the 17th Amendment, the problems that the amendment was meant to correct would have to be anticipated and dealt with. State legislatures had far more corruption problems than at present specifically because they chose their federal senators. People had started voting for state legislators largely based on whom they promised to support for the federal senate, thereby, almost creating a direct senatorial election anyway. Some legislatures deadlocked so badly over senate candidates that they were unable to send a senator. Utah was among those that went unrepresented for a period of time.

While the 17th Amendment largely resolved these and other issues (see here for details), it introduced a host of new problems, such as those you have noted. In effect, it was the wrong tool for resolving the issues, like using a sledgehammer to move a chair that is stuck to the floor. It worked, but damaged the furniture of the republic as well. However, some have argued that it was the only politically feasible solution that could be mustered at the time.

What I am saying is that we can't simply repeal the 17th Amendment without also crafting solutions to the problems that gave rise to the amendment in the first place, since those same problems could be expected to rear their ugly heads once the amendment was repealed. Also, it might be difficult for state legislatures to want to accept this responsibility without some kind of solution to those nasty problems.

David said...

Thank you for that added perspective. I think you got it right that a constitutional amendment was the wrong tool for the problems the 17th Amendment was trying to solve. I also agree that those problems needed to be solved.

I doubt that we have to worry about having 17 repealed, but we should be careful not to repeat the twin mistakes of (1)altering the form of government prescribed in the Constitution and (2)using the amendment process for problems that deserve less invasive measures.