Posted on 10/21/2007 1:20:15 PM PDT by Tolerance Sucks Rocks
Title: | The Road to Mass Democracy: Original Intent and the Seventeenth Amendment |
Author: | C. H. Hoebeke |
Published: | New Brunswick, N. J.: Transaction Publishers, 1995. |
Price: | $39.95 (hardcover) |
Pages: | 211 |
Reviewer: | |
Affiliation: | Mississippi College School of Law |
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The Constitution of 1787 provided for the appointment of United States senators by state legislatures. In 1913, the Seventeenth Amendment was ratified, installing the current regime of direct election of U.S. senators.
The bloated and special-interest-driven nature of the federal government during this century has led scholars in recent years to reexamine the original framework of the Senate and to consider the causes of the Seventeenth Amendment and its consequences for U.S. twentieth-century politics and society. C. H. Hoebekes The Road to Mass Democracy is an important addition to this growing literature.
According to Hoebeke, the Senate was explicitly modeled after the British House of Lords. It was intended to be an upper-class, conservative body that would check the populism of the democratic House of Representatives. State legislatures would serve as intermediaries identifying and elevating to the Senate the best men, marked by ability, virtue, and achievement. The Senate would be a natural aristocracy, an agency which would fulfill a function similar to that of the [House of] Lords in checking the runaway tendencies of popular rule, but which at the same time would remain a non-hereditary body (p. 45).
Hoebeke argues that the idea of using state legislatures as the instrument to create an anti-democratic and conservative body was flawed from the outset. After all, the Constitution itself was a reaction to the democratic excesses of the states and their governments during the period of the Articles of Confederation. The notion that those same state legislatures would appoint senators who would buck a popular tide was absurd. As he demonstrates, even after the adoption of the Constitution the state governments remained far more receptive than the national government to populist reforms.
Despite these flaws, appointment of senators by state legislatures was one of the least controversial elements of the new Constitution. Popular election of senators was proposed at the Constitutional Convention but received almost no support. Beginning after the Civil War, however, and escalating through the late nineteenth century, proposals for direct election became increasingly frequent, until the Seventeenth Amendment was finally adopted.
Traditional explanations for the passage of the Seventeenth Amendment can be divided into two categories: internal and external (Todd J. Zywicki, Senators and Special Interests: A Public Choice Analysis of the Seventeenth Amendment, Oregon Law Review 73 [Winter 1994]: 1007). Neither explanation, however, fully explains the genesis of the amendment.
Internal theorists see the Seventeenth Amendment as a response to the perceived evils of the original method of electing senators, which over time was alleged to have become marked by corruption and gridlock. In some instances the battles in the state legislatures became so charged that no senator was elected at all, resulting in a vacancy in that seat. As Hoebeke notes, these internal explanations overstate the problems with the original system, as most elections were uneventful. Internal models also provide no explanation for the belief that direct election would eliminate corruption and the influence of money in the electoral process. History has shown that direct election increased reliance on political machines to organize voters and increased the importance of raising money to run statewide popular campaigns. Moreover, less intrusive remedies for perceived problems were available, such as repeal of a federal law requiring election of senators by majority vote of the state legislature, rather than by plurality.
External theorists see the Seventeenth Amendment as a footnote to history, a small part of the larger democratizing influence of the Progressive movement. Traditionally, most exponents of external theories have seen increasing democracy as a positive development, as the Seventeenth Amendment supposedly would remove control of the Senate from the smoke-filled back rooms of political manipulators and machines, replacing this corrupt regime with the beneficent sovereignty of the people. Hoebeke is an externalist, as he sees the genesis of the Seventeenth Amendment in an ideological commitment to democratic principles and ideals, and especially in Rousseaus concept of the general will. Unlike the Progressives, however, Hoebeke views this commitment to democracy as misplaced and as having consequences unforeseen by proponents of direct election.
For both Hoebeke and the Progressives, direct election of U.S. senators was to be the leading edge of a movement to bring to the federal government the democratic changes occurring on the state level, such as recall, referendum, and judicial elections. But nothing of the sort ever happened. There is no national recall, referendum, or election of federal judges; just direct election of senators. Moreover, the evolution of the electoral college into a democratic institution suggests an alternative evolutionary model for the Senate. In fact, by 1913 most states had adopted mechanisms to allow the people to vote directly for senators, thereby seemingly obviating the need for a constitutional amendment. Thus, the external explanations proffered by Hoebeke and the Progressives are incomplete.
Perhaps a more fundamental problem with Hoebekes thesis is his premise that the primary purpose of indirect election by state legislatures was to create an American House of Lords. Emphasizing the aristocratic nature of the Senate causes Hoebeke to minimize the role of the Senate in the structure of the Constitution. In the original Constitution, the Senate was an essential element of both federalism and bicameralism. Hoebeke recognizes these structural features but discounts their importance. In doing so, he ignores a critical element in the story of the Seventeenth Amendment.
Jay S. Bybee (Ulysses at the Mast: Democracy, Federalism and the Sirens Song of the Seventeenth Amendment, Northwestern University Law Review 91 [Forthcoming, Winter 1997]) argues that the primary purpose of having state legislatures elect senators was to give the states a constituent part in the federal government, thereby appeasing the anti-federalists, protecting the states from federal encroachment, and creating and preserving the structure of federalism. Senators were seen as, and acted as, the states ambassadors to the federal government, representing the states and their interests.
The Senate was also an important part of the bicameral legislature. The ability of factions or special interests to capture control of the federal government was mitigated by requiring bills to receive the approval of the public, speaking through their representatives in the House, and the approval of the state legislatures, speaking through their representatives in the Senate. The transition to direct election made the constituencies represented in the House and Senate more similar, thereby facilitating creation of logrolling agreements across the two houses of the national legislature. Moreover, it made the procurement of special-interest legislation easier by allowing special interests to lobby the Senate directly, rather than having to proceed through the intermediaries of the state legislatures. In an era of increasing interstate commerce, accompanied by the development of groups whose interests crossed state lines, these economies of scale in lobbying were critical. Direct election thereby weakened the protections of bicameralism and made special-interest legislation easier to obtain (Zywicki, pp. 103947).
In preserving federalism and bicameralism, the Senate did an extraordinary job before 1913. Throughout the nineteenth century, the federal government remained small and special-interest legislation was limited. The activity of the federal government was largely confined to the provision of public goods such as defense and international relations (Robert Higgs, Crisis and Leviathan: Critical Episodes in the Growth of American Government. New York: Oxford University Press, 1987, p. 114). Although the federal government grew during national crises such as war, the passing of the crisis brought a return to a small federal government (Roger E. Meiners, Economic Considerations in History: Theory and the Little Practice, in Economic Imperialism, edited by G. Radnitzky and P. Bernholz. New York: Paragon House Publishers, 1987, p. 95). The so-called ratchet effect of federal intervention persisting after the dissipation of the crisis that spawned it was scarcely evident in American history before World War I (Higgs, p. 30). The role of the Senate in thwarting special-interest activity on the national level and protecting the autonomy of the states was critical in preserving this arrangement.
The Seventeenth Amendment was not just a rebellion of the people against an inherently aristocratic institution, as Hoebeke suggests. It was primarily a rebellion of emerging special interests against federalism and bicameralism, which restrained the ability of the federal government to produce legislation favorable to those interests. Changing the method of electing senators changed the rules of the game for seeking favorable legislation from the federal government, fostering the massive expansion of the federal government in the twentieth century. Even if Hoebeke has failed to tell the full story of the Seventeenth Amendment, however, he has made an important contribution to our understanding of the system of representative democracy established by the Constitution and the forces that shape its evolution.
Democratizing the Constitution: The Failure of the Seventeenth Amendment
which is also on FreeRepublic
PING!
As long as the Supreme Court ignores the Constitution, nothing that’s done will help.
Assure the right people are selected to sit on the high court, and most of the liberal slide toward the abyss will cease.
In some sense, as an upper house, the Senate did have similarities to the House of Lords. If the Senate had remained an indirectly elected body, it would have lost power in a democratic age which assumed that all power grew out of direct elections. That's what happened to the House of Lords.
Also, I'm not sure that an unelected Senate was a safeguard against special interest legislation. There certainly was enough tariff legislation to benefit special interests before 1913.
And there wasn't much of an change immediately after 1914. Change came with the Depression and the New Deal, as government increased its power and people got together to make use of that power.
It's unclear to me that indirect election to the senate served as a bulwark against that. It was just that the playing field shifted from party machines and state legislatures to campaign advertising and direct elections.
What did change is that after 1914 Senators who'd had to win popular elections began to think of themselves as prospective presidents. Earlier, the Senate had been the reward and resting place of old politicians and businessmen -- and on occasion -- of elder statesmen.
The Senate specifically ratifies treaties, nominates and confirms executive officers and judges, and tries impeached officials. I’m sure the Senate would want retain those powers, even if its members were still appointed by the states. And they would still be subject to activism from the legislatures, so I doubt that they’d pass on lawmaking, either.
Draconian. Answer in one word: Coup.
Britain doesn't have a written constitution though. They just sort of feel like the house ought to be more powerful. The senate has explicit rights.
Also, I'm not sure that an unelected Senate was a safeguard against special interest legislation. There certainly was enough tariff legislation to benefit special interests before 1913
Right. It wouldn't eliminate corruption, but I think it would lessen the degree of corruption at the federal level.
And there wasn't much of an change immediately after 1914. Change came with the Depression and the New Deal, as government increased its power and people got together to make use of that power.
Well it took six years for the changeover to be completed after ratification due to the two year staggered elections rule. Then there was the economic boom of the twenties. The depression was their first real test.
I would heartily support the repeal of the Seventeenth Amendment. I believe then that voters could have better representation through their state legislators who would check and balance the senators who are sent to Washington. It is the republican form that the Fed is supposed to guarantee to the States.
Do you think that all of Roosevelt's socialist legislative crap could have passed Congress, had the states still had a forum for their interests in the Senate? (I'm sure some of it still would have passed; those were desperate times.)
This involves only ONE amendment, you liberal moron.
I have to concur that your mockery reeks of progressivism, and while SOME of those ideas do seriously sound well..
The repealment of the Seventeenth Amendment would do wonders to restore federalism, and the balance of State power vs. federal powers. They would no longer just be little more than “adminstrative units” of the Federal Government..
We just want to get rid of the 16th and 17th Amendments. Your side wants to get rid of the 1st (nationwide speech codes... uh, I mean “hate crimes” legislation), 2nd (guns are evil), and the 10th (everything is federal) Amendments. The Amendments we would repeal would allow more freedom for the People, by way of allowing them to keep the money they earn (Capitalism!) and giving the States some ability to limit the Congress. Your side wants to control the People via an omnipotent federal government.
No, some of us will just call you an @$$hole and let you rant your way into anonymous oblivion.
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