We recently touched upon the inception of the 17th Amendment when we spoke about Huguette Clark, and the Gilded Age fortune inherited from her father, 19th Century robber baron (and scoundrel) William A. Clark. Now, to give you more background, after establishing control of much of the world’s copper supply, William Clark set about trying to buy a seat in the U.S. Senate. By openly bribing Montana legislators with $10,000 per vote, Clark gained his seat.
It was the background of 19th Century corruption in general, and the corruption of William Clark specifically, that fathered the constitutional amendment which set out the direct election of senators by the people, and not by state legislators. Power to the people. Sounds good right?
Why then are conservative members of the GOP and the Tea Party now campaigning to repeal this amendment? And what impact will this have on the 2012 election season?
The foundation of the argument is the much-discussed issue of necessary limits on federal power. In other words, it’s about the staple of conservative thought in America — 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.” What the 10th amendment seeks to do is to limit federal power and reassert the rights of the separate states — almost everything the Tea Party stands for.
Tony Blankley, famous as Reagan’s policy analyst and speechwriter, now a Huffington Post blogger, agrees that the best way to revive the 10th Amendment is to repeal the 17th.
Hang on. What?
Since the direct election of senators by the people was a reaction to the corrupt lobbying of state legislatures, why now, when corrupt lobbying and excessive government power over the people is part of the fuel that is driving the tea parties, do they want to repeal this safety net?
Firstly, the 17th Amendment has not achieved its desired aim. It has not ended the legal bribery of U.S. Senators, it has simply moved the bribery to Washington. Secondly, by repealing the 17th Amendment, the express purpose of the Senate — to protect the sovereignty of the states against the encroachment of national government, and serve the needs of the people — will be reinstated. If senators were once again selected by state legislatures, Senate careers would be tethered to their vigilant defense of their state’s interest — rather than to the interest of Washington forces of influence.
Roger Sherman of Connecticut summed up the thinking of the 1787 Philadelphia Convention when he remarked: “If it were in view to abolish State Governments the elections ought to be by the people. If the State Governments are to be continued, it is necessary in order to preserve harmony between the National and State Governments that the elections to the former [should] be made by the latter.”
For the tea-partiers, therefore, the passage of the 17th Amendment is inextricably linked with the exponential growth of the national government, and alongside the derided 14th Amendment, it is seen as a key cause of the increasing powerlessness of states. So, repealing the 17th Amendment will not only re-empower state legislatures, and re-assert states’ rights, but it will also limit federal power and therefore revive the 10th Amendment.
In other words, repealing the 17th amendment is about reinstating the federalist system of power distribution. A much sought-after by-product will be the resuscitation of the 10th Amendment, restoring the wisdom that the several state governments were better equipped than the national government to address the disparate needs of citizens.
What we have to ask now is whether states really need to be protected from the federal government. But sadly the answer to this question is entirely dependent on the view taken of the national government: regulating to protect people, or encroaching to the detriment of the states and a measured distribution of power?
After this, we have to ask whether repealing the 17th Amendment is even a safe move. The advent of the Amendment originally spoke to the people’s distrust and skepticism of state legislatures, oft blamed for legislative deadlocks in filling Senate vacancies due to partisan excesses and party machinations. In this modern era when government must act quickly in the event of emergencies, is repealing the Amendment worth risking the danger of Senate vacancies due to partisan bickering in the states?
Additionally, there is the issue of antiquated systems of representation that are to some extent still used to draw legislative districts. These malapportioned systems sometimes cause a legislature’s election of Senators to produce a different result from that yielded by popular election. In turn, this then exacerbates the problem of political gerrymandering, highlighted by the United States Supreme Court as a significant barrier to democratic government.
Lastly, we have to ask whether repealing the Amendment is likely to achieve the eventuality desired by the campaigners. Would it succeed in restoring the power of state legislatures? Even before the 17th Amendment, state-level parties and organizations found ways to involve the people more directly in selecting senate electors. Under the “Oregon Plan”, for example, state voters held a preference-poll that would inform the choice to be made by state legislators. By 1911, over half of states had adopted some version of this system.
As Vikram David Amar and Alan Brownstein — law professors at UC Davis — argue, unless a repeal of the 17th Amendment was accompanied by prohibiting the people of each state from voicing their preferences for the benefit of state legislatures, ‘popular election or something close to it may be likely to persist.’ (In other words, citizens of each state would still have the ability to canvas and then to lobby their state officials as to their will.) The 17th Amendment simply rubber-stamped what was already happening at the democratic grass-roots.
This has not, however, stopped Republican Presidential candidate Rick Perry from aligning himself with he various grass-roots campaigns to return to the original language of the constitution. Part and parcel of his positioning (sometimes controversially) as the most conservative, most Christian candidate, Governor Perry asserts in his book ‘Fed up!’ that the American people “mistakenly empowered the federal government during a fit of populist rage…by changing the way senators are elected.” As a result, he argues, “states handed over significant chunks of their sovereignty to the federal government.”
While fast falling out of favor with many Republicans, Rick Perry is still hopeful for the support of the Tea Party. With the language of restoring “federalism” — like the allusion to the Boston Tea Party of 1773 — the conservative wing of the GOP is attempting to claim exclusive allegiance to, and knowledge of, the will of the Founding Fathers.
While the 2012 national election in itself may not turn out to be a fascinating ideological battle of historic proportions, this primary season is certainly set to be. After the last election, commentators on all sides agreed that the GOP needed to diversify and find itself. Diversify it certainly has, and with this presidential nomination, it looks like it will define itself for decades to come.
Related articles
- Backward, Into The Future (opinionator.blogs.nytimes.com)
- Repeal the 17th Amendment (huffingtonpost.com)
- Is Rick Perry Right That the Seventeenth Amendment Was a Mistake? (verdict.justia.com)
- A 10th Amendment Drama Fir for Daytime TV Heads to the Supreme Court (nytimes.com)
Citizens United Gathers More Dissidents
“Right to be Forgotten” — What We’re Reading
Affirmative Action set for Election-Season Supreme Court Review
Episode 57: Internet Privacy and the “Right to Be Forgotten”
Should There be a “Right to be Forgotten” on the Internet?
