Skip to comments.Senate Vacancies Raise Questions of Framersí Intentions [repeal the 17th Amendment]
Posted on 10/07/2009 1:00:14 AM PDT by rabscuttle385
Over the past nine months, much ink has been spilled on these pages and elsewhere over the process of filling vacant seats in the Senate. As columnist Norman Ornstein documented in Roll Call on Sept. 23, during this period there have been six seats vacated by death, retirement, election to higher office and appointment to the Cabinet.
Much of the commentary has focused on how the vacancies are filled and how fast the replacement occurs. Those who desire a quick and inexpensive process tend to favor gubernatorial appointment of Senators, while those who insist on a more democratic and deliberate route prefer special elections. Not discussed is any acknowledgement that these two alternatives are (in the parlance of our times) a false choice posed by the 17th Amendment. In fact there is a third, more elegant option conceived by the framers of the U.S. Constitution that could be considered.
Prior to 1913, Members of the Senate were chosen by state legislatures to be the agents of those governments in Washington, D.C., much like ambassadors today at the United Nations. The framers legislative design was subtle, but ingenious: While a Member of the House would represent the interests of the people as citizens, a Senator would represent the very different interests of the peoples sovereign state governments. This structure embodied the original meaning of the term separation of powers. The legislature would domicile two distinct powers (the people and the states) to compete bill by bill for the direction and scope of the federal government.
Representatives to the House, with only two short years to prove their worth to constituents, would demand governmental activity at any cost. Envoys to the Senate, the voices of state legislatures primarily interested in keeping political power closest to where the people live, would limit the federal governments growth. The framers gave the Senate functions different from that of the House, such as the confirmation of judges and Cabinet appointees, presuming that the emissaries of the states would approve only of those nominees possessing a view of government not precluding the states from first providing for their own citizens needs. In this way, the Senate was guarding the constitutional henhouse.
In 1913, the 17th Amendment and the popular elections of Senators turned the henhouse over to the hound dog. While current representatives to the House and Senate have different (though overlapping) geographic constituencies, they have extraordinarily similar interests: the properly intemperate and unfiltered will of the people, and the special interest groups that fuel campaigns. There is no longer the competition of disparate interests the framers believed was required to keep the federal government responsive, yet moderate in tone and scope.
The 17th Amendment was proposed and ratified primarily on the strength of these two arguments: 1. The selection of Senators by legislatures was irredeemably corrupt. Some Senators were accused of buying their seats from state legislatures, either through cash payments or through loyal service to party machines. 2. The will of the people is best expressed through popular elections.
Consider these arguments in turn.
First, if the primary purpose of the 17th was to eradicate corruption from Senatorial selection, it failed brilliantly at doing so. Far too many contemporary examples exist to suggest otherwise. Corruption will always be a part of politics and must be dealt with aggressively, but altering the foundational structure of the Constitution in order to wave a hand at corruption was profoundly misguided.
Second, the purpose of the Constitution is to establish a government of the people, by the people and for the people, but the framers did not intend to make the federal government an instrument of mob rule. The long history of failed civilizations taught them that democracy has practical limits, and those limits include a majoritys tendency to disregard minority views and financial bankruptcy.
The Senate was designed to serve the people, but not as a democratic body. Some have suggested that this was because the framers as elitists distrusted the people. There is little evidence to back this up. The framers each came from states where almost every feature of the state government from the governor to the local magistrate was democratically determined, and the framers made the will of the people well-represented in the House. It certainly was not the case that after fighting a war of independence from titled privilege, they wanted to secure a place for an aristocracy they all despised, as is suggested by others. The framers made the Senate a non-democratic body because they believed that when democracys limits are reached, citizens lose their liberty and governments go broke.
So what are the implications of the 17th on the 2009 vacancies? Consider Massachusetts. Without the 17th Amendment, the democratically elected Massachusetts Legislature could have met on the day following Sen. Edward Kennedys (D) death and selected his replacement at very little cost to the taxpayers of Massachusetts. The new (Democratic) Senator would be charged with representing the interests of the state government, including that governments inclinations toward health insurance reform. In the course of the health care debate in the Senate, if the state Legislature came to believe that the financial burdens of national reform would affect the people of Massachusetts disproportionately and thus unduly diminish the resources of Massachusetts then the new Senator would be advised to advocate for a more just distribution of those costs. The Senator from Massachusetts would almost certainly vote against any provision (in any bill) designating unfunded mandates to the states. If the state of Massachusetts determined that the state government could provide better, more efficient managed health care than the federal government to the benefit of its citizens, it would have an immediate, significant voice in the Senate with which to say so. Without the 17th, the people of Massachusetts win.
By repealing the 17th, the nation would restore a meaningful part of the framers original design for federalism. The responsibility for the quick and just selection of Senators becomes that of a democratic body in each state, providing a meaningful check against hot-headed, confrontational government. It worked well for more than 120 years. What is the harm in reconsidering the framers original plan?
John W. Truslow III is director of the Campaign to Restore Federalism.
IMHO 1913 was not a good year for the “People”, or their government. Too much happened that was not in “our” interest.
I don’t understand what all the commotion is about since the text in the constitution is pretty clear about how the vacancies are supposed to be filled.
“and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies”
The Senate was intended to be “the states’ house” in order to balance competing interests between the people at large and those of the states. I agree that the 17th amendment should be repealed in order to restore the balance and give states the voice in the government that they were intended to have. By taking that away and making the Senate a people’s house on steriods, we don’t really have that built in check between the will of the majority and rights of the minority and are wide open to legislative arbitrage and tyranny.
If we did repeal it, we would immediately have the 17th x 50. Prior to 1913 many states (perhaps as many as half) had curtailed the state legislature's power in this area. Senate candidates were chosen by some type of referendum among the people. The legislature then appointed the winner. The legislatures were simply brokers or a de facto electoral college.
I see your point, and have never looked at it quite that way.
There has to be some way to dilute the power concentration that has amassed in DC at the expense of state soverignty. States were intended to be a buffer zone against a Federal government that could become out of control. Now, we find ourselves in a position where the state governments are scarcely more than Federal program administrators, and rather redundant. We have Washinton dominated by ideologues who care nothing about what the constitution says and have little respect for individual freedom with nothing in between to stop them.
It still gives the states the right to choose the methodology of appointing/electing senators. Sooner or later some legislatures will figure out its in their best interest to start appointing them the angrier the people get at centralized Washington government.
I firmly believe repeal of the 17th is the best course out of this nightmare, with repeal of the 16th a close second.
Which states want to reestablish sovereignty and what form would it take? Who is it that wants more individual freedom?
The answer is counterintuative.
I think we should repeal the 16th, too. It will get those fatassed Southerners up off their lazy butts and make them contribute for a change.
Not discussed in this article is Campaign Finance Reform. Repealing the 16th and 17th amendments would be real campaign finance reform instead of the John McCain unconstitutional fiasco. The amount of money spent on senate campaigns is astronomical; in most state legislatures the districts are small enough that the representative is known to a large percentage of the voters. It is much harder to corrupt the many than the one.
“The answer is counterintuative.”
I don’t believe that it ultimately is counterintuitive. States naturally compete among themselves for people and economic resources and the Federal government has very little competitve pressure. As an example, if one state decided to become socialist and sap its economic resources for programs and the large amount of policing it would take to be successful, people could move to another and take their wealth with them. Even now we see this kind of thing happening because the economic affects of such choices are much more immediate rather than being obscured behind a governemnt that can just print money at will. Thus in many respects they are far more accountible for their actions and such a state would not last long before going bankrupt.
In addition to Martial Monks comments above, there is another problem. In the 19th century many Senate seats were vacant for years when split legislatures could not agree on a candidate. That’s a lot worse than having the seat vacant for a few months.
The 17th amendment is not perfect, but it is better than what it replaced, and the people will never agree to it’s repeal.
In Montana William Clark bribed the legislature for a Senate seat. It came to light and the Senate refused to seat him. He later ran in the referendum and won. The Senate accepted him the second time.
It is the BLUE states that are being drained of $200 billion a year to support red states.
“The states are already competing to a degree. So far it has been a matter of pointing out pre-existing advantages such as low taxes (Nevada and Arizona vs. California) or specific tax breaks to attract specific industries but that may heat up in the future. Movement has been based more on the general fortunes of an industry than governmental policy. Textiles moved south and then overseas. Policy would not have changed that.
It is the BLUE states that are being drained of $200 billion a year to support red states. “
These facts are predicated on how things stand as far as combined state and federal policy in the current environment where the states have very little voice regarding what the Federal government does. A progressive Federal income tax, capital gains taxes, payroll taxes, etc.. and social programs do nothing to keep jobs here in the country and there is nothing any individual state can do about it. The economic affects upon the country as a whole have been obscured behind the ability to print money and other such monetary policy in order to kick the can of ultimate economic consequences down the road a little farther, all the while we become slaves to monolithic tyranny.
My argument suggests a rollback of Federal power to where it has little influence on the political economy of each state, which was the original intent. It does not mean that states would not be able to do evil, but they have a far more difficult time of hiding it.
But there is no point at which that will happen. Even with government at the 1913 level, the 16th amendment was a cannon aimed directly at the industrialized North. The South had lost its 3/5th exemption with the Civil War and apportioned taxes were killing them because of the differences in income in comparison to the North. If we reinstitute apportionment and cut Federal expenditures by 2/3 we still kill the South in two ways. First there is no longer the $200 billion a year rolling south. Then, we would force them to pay a higher percentage of their income toward the Federal Government. It is much harder to pay 5,000 out of a $30,000 income in Arkansas than it is to pay $5,000 out of a $60,000 income in New Jersey. We would depopulate the mid-west and impoverish the South.
Even if we could agree upon the assumption that wealth creation would remain concentrated in regional areas and the econmic pie would never become larger, which I’d have trouble accepting that mid-western and southern states would not be able to compete with the rest and the industrial and technical revolutions have changed nothing since 1913, especially in the near abscence of Federal window-breaking, it would become entirely moot should we be over taken by communists or become embrioled in another civil war in an effort to resist such. It is much harder to win 50 versions of the same argument than it is to win it once at the top where the only recourse for the people is to vote them out of office after the damage has been done, assuming that elections are still allowed.
But an even closer look at red vs blue state discussion, New York has been bleeding enterprenuers and investment capital due to socialistic policies for years and it has only accelerated since the recession started. As a consequence our taxes and cost of living are much higher and an argument could be made that is relatively equal to pay $5k out of $60k income in NY as it is to pay $5k out of $30k income in AR.
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