On Repealing the 17th Amendment Part I: Agreement

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Posted by    Cross Posted From Tenth Amendment Center

There recently appeared an article at Salon critical of the idea of repealing the 17th Amendment. In it, author Alex Seitz-Wald explains how the desire to return the selection of U.S. Senators back over to the state legislatures, as opposed to direct election now, developed, and why it would be harmful if tried. In this piece, the first of two on the subject, I’ll summarize the argument, argue the benefits of repealing this amendment, and correct a few points made by Seitz-Wald.

His overview is that the idea had been a “hobbyhorse of the fringe right” for quite some time, until the Tea Party-types and Glenn Beck helped popularize it. Now that having states represented in congress has become more of a mainstream issue, a number of politicians are beginning to promote the idea. Among them are Utah’s Senator Mike Lee, Jeff Flake of Arizona, and Todd Akin (yes, that Todd Akin) of Missouri, both of whom are senate candidates for the GOP. Other prominent republicans who have supported a return to the original selection of the senate are Alan Keyes, Zell Miller, and Ron Paul.

The chief reason for repealing this amendment is to return the senate to its original purpose of representing the states. The theory is that with senators beholden to the states the balance of power would shift in their favor, and we’d return to something more akin to federalism. In this way states would not be so powerless as to have overbearing laws forced upon them, such as REAL ID for example, without at least having a say in the matter. It would also mean that unfunded liabilities and other programs mandated by the federal government, but not specifically funded by it, would not be so easily rammed through if the states could block them in the senate.

This whole argument ignores which powers ought to be granted to government in general (if any) and instead focuses on how they should be divided between the states and the federal government. I’ll cover the former issue in the second article, but for now I’ll focus on how dividing government power between various levels is preferable to consolidating it in one body.

One could argue, quite convincingly I add, that things really began deteriorating just after the turn of the 20thCentury. The progressive era ushered in a massive shift in the attitude regarding the roles and legitimate powers of government. While a few positive things happened – the 19th Amendment being one of them – others were not so great for the cause of liberty.

Anti-trust legislation broke apart highly successful firms that had dramatically increased the standard of living by bringing down the prices of oil, transportation, and many other consumer and capital goods. There was the 16th Amendment, which established an income tax, punishing success and effectively making every U.S. citizen a servant to the federal government. The nation’s third central bank, the Federal Reserve System, was established and since then we’ve seen the deleterious effects of the business cycle greatly expand. To say that the value of the currency has fallen precipitously since then would be profound understatement; and many wars have been financed through debt and inflation that otherwise might have been prevented. There was alcohol prohibition, which begot organized crime and contributed greatly to police and prosecutorial corruption. Finally, there was the First World War, and in its wake, the rise of international organizations beginning with the League of Nations, and ultimately, the rise of fascism.

To be clear, I’m not suggesting that all of these things happened because of the 17th Amendment. I’m merely placing its passage in the context of the time, and showing how a shift in the attitude of government lead to both the decline in influence of the states and the consolidation of power at the national level. In this way we can see how the rise of the centralized state is harmful to liberty.

Eschewing federalism and accepting the national government as a just and good paternal institution was quite popular at the time. The attitude then, just as it is now in most circles, is that if a social or economic problem exists, the solution is to simply create another federal agency or bureaucracy, or establish a commission to study and report back on the issue. Perhaps the only real difference between then and now is that it was a fairly new approach then; almost 100 years later this naive concept has been a demonstrable failure, but it’s no less popular.

Now, the means by which senators are chosen isn’t really the issue so much as where their loyalties lie. When “the people” elect senators the very purpose of the senate is lost. Contrary to Seitz-Ward’s opening paragraph, in which he extols the virtues of democracy, at least some purpose is served when not every function of government is dependent on a popular vote. When authority is assigned through a popular vote power is actually vested in fewer hands than when a competing entity, such as a state, has a role in the decision. For when states are vested with a share in authority, the federal government must be willing to include their collective wishes or be barred from acting.

Something the founders counted on was a jealousy of one branch’s own power, such that one entity wouldn’t be so willing to cede control and allow any other branch to become too powerful. This clearly didn’t last, hence parties are always competing to hold the White House, Congress, and stack the Supreme Court in their favor, so that they can control the direction of the federal government. Having states hold a portion of that power may not put the brakes on every piece of onerous legislation that comes from on High, but if enough states are divided on the issue it could put a stop to some bills that otherwise would pass.

Seitz-Ward asks “Why would anyone want to take away people’s rights to elect their senators?” His answer is that “if state legislators elect senators, Congress will be responsive to the needs of state governments, and thus preserve states’ rights and prerogatives.” There is no explanation as to why this might be a positive thing, simply more condescending rhetoric about the Right’s “fetishization of a revisionist view of the Founders,” and “glorification of the past that didn’t exist.” What he fails to understand or admit is that federalism is a far better way to protect individual rights than consolidated power. When a national government founded on democracy holds all of the power, the rights of minorities are more easily repressed than when member-states exercise some autonomy.

Imagine a scenario where the majority of the national congress is fervently anti-gay, or at the very least, so committed to appearing united that they continue to pass legislation that makes life increasingly difficult for gays. Now, not everyone in the country is so biased against gays and a number of organizations form to restore their rights. Some states even begin passing laws to protect gays and even to punish those who oppress them under the cover of federal law.

Are we to believe that Seitz-Ward or other contemporary opponents of so-called states’ rights would find this type of non-compliance objectionable? After all, this very scenario played out leading up to and during the War Between the States. The federal government enshrined slavery in the constitution and passed legislation that reinforced the institution for over half a century. A number of the states began taking action long before the federal government finally got around to passing the 13th Amendment. So this idea that everything would be better if the states would just cow to their federal overlords is wrong in theory as well as in practice.

But Seitz-Ward doesn’t rest his entire argument on a cartoon version of the theory of states’ rights. He notes the original reason for the change came about as a result of corruption within the senate. Imagine that! A group of men paid with stolen money and whose official duties involve criminal behavior as a matter of routine being corrupt. He cites the senate’s official history, which states that “Intimidation and bribery marked some of the states’ selection of senators. Nine bribery cases were brought before the Senate between 1866 and 1906.” (Don’t worry though, this is the history written by the Good and Just senate, not the defiled and unclean senate to which it refers).

Anyone who believes that bribery and intimidation aren’t still part of the process is deluding himself. The difference between then and now, if any exists at all, is that such threats and greasing of palms is done even further below the table, or veiled in such a way as to go largely undetected. After all, let’s not forget that a certain former Illinois governor is sitting in a cage after being convicted of trying to auction off a U.S. senate seat just a few years ago.

Finally, Seitz-Ward quotes Lewis Gould, a professor emeritus, who taught history at the University of Texas: “For every Lincoln-Douglass debate, you get some more sordid characters where there was talk about legislators being bribed, or being found with women, or being drunk and voting when they’re hung over, all sorts of things.”

Oh, what a dark and libertine period in U.S. history this was; just think how far we’ve come. In the time since, political scandals have evolved significantly and have included a senator driving while intoxicated, resulting in the death of his girlfriend; another senator with a “wide stance” was caught soliciting sex in an airport restroom. There was Rep. William J. Jefferson’s freezer/piggy bank, senator John Ensign’s affair with an aide’s wife, John Edwards’ own big love, Rep. Charlie Rangel’s tax returns, and Anthony Weiner’s… you get the point.

The reality is that corruption and politics are words so closely associated the two are practically synonyms. And whether the 17th Amendment has improved congress’ morality and ethics is debatable. But one sure thing is that it helped shift the power structure to the federal government and put the states – and by extension the citizenry – at the mercy of a national government. Repealing it wouldn’t be a panacea, but it’s one way in which to restore some features of the republic.

Joel Poindexter is a student working toward a degree in economics. His writing has been published by the Ludwig von Mises Institute, LewRockwell.com and the Tenth Amendment Center. He lives with his wife and daughter near Kansas City. See his blog. Send him mail.

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