StanCollender'sCapitalGainsandGames Washington, Wall Street and Everything in Between



Repealing the Seventeenth Amendment

03 Jun 2010
Posted by Bruce Bartlett
The New York Times recently published two back-to-back articles (here and here) mocking members of the Tea Party Movement for supporting repeal of the 17th Amendment to the Constitution—the one that changed the election of US Senators from state legislatures to the popular vote system we have today. Having endorsed this idea myself on occasion, I am compelled to say that just because some crazy people endorse an idea doesn’t necessarily make the idea crazy. Following are links to some serious commentaries supporting a return to the original system of electing senators established by the Constitution.
 
George Mason Law School professor Todd Zywicki is probably the leading authority on the history and problems with the 17th Amendment. Following is some of his work:
 
            ● “Senators and Special Interests: A Public Choice Analysis of the Seventeenth Amendment,” Oregon Law Review (1994). Online here.
 
            ● “Beyond the Shell and Husk of History: The History of the Seventeenth Amendment and Its Implications for Current reform Proposals,” Cleveland State Law Review (1997). Online here.
 
A 1997 article in the American Political Science Review by Sara Crook and John Hibbing concluded that the 17th Amendment dramatically changed the nature of the Senate. Different sorts of people were elected and senators became much more sensitive to changes in public opinion.
 
Claremont McKenna College government professor Ralph A. Rossum was highly critical of the 17th Amendment’s erosion of federalism in his 2001 book, Federalism, the Supreme Court, and the Seventeenth Amendment: The Irony of Constitutional Democracy. A good summary of his argument can be found in this paper delivered in 2003.
 
In 2002, former White House counsel John Dean wrote a column saying that repeal of the 17th Amendment would “restore both federalism and bicameralism.” One benefit, he said, is that the cost of running statewide senate campaigns would disappear and there would be more focus on state legislative races—a good thing in Dean’s opinion.
 
In a speech reported in the Harvard Crimson in 2004, Supreme Court Justice Antonin Scalia said that the 17th Amendment was “a bad idea.”
 

Larry Bartels has an

Larry Bartels has an interesting take in "Tumbling Down into a Democratical Republick":
http://www.henryfarrell.net/polsci/2007/08/achen_and_bartels_on_the_demo...


Just more corporatism

So conservatives want a return to the highly corrupt and even more corporatist Senate characteristic of the pre-17 days? It's hardly shocking that the rhetoric of states rights is being deployed for regressive political ends.


opinion query

Mr. Bartlett, may I have your opinion on this stuff a friend of mine said when I mentioned to him your suggesting of repealing the 17th amendment?

He wrote, "If it were up to me I would disband the senate, just have the house as a unicameral legislature.
The senate, to me, is a relic of the weak confederacy the country started as. States had representatives, in the forms of senators, because they were countries in their own right.
That made sense in that sort of environment, where states were reluctant to join the union if it meant they would be swamped by larger states, but in our current system, with a strong central government, it just creates situations where tiny states have an outsized influence on policy. Alaska's 500k voters have more voting power than California's 30+ million."


And small states (like mine,

And small states (like mine, South Dakota) would still get swamped by larger states under that proposal.

I'd support secession in the event the Senate were eliminated, and I'm saying that as someone who leans liberal Democrat and thinks Sarah Palin and the tea party would be a disaster for this country.


William A Clark paid $10,000 per vote in 1899

Repeal would sure make serving in the state legislature a more reasonable proposition. Say what's 10,000 in 1899 dollars worth today?


$10,000 in 1899

would have these values today:

 
   $267,000using the Consumer Price Index
   $232,000using the GDP deflator
$1,250,000using the unskilled wage
$2,000,000using the Production Worker Compensation
$1,780,000using the nominal GDP per capita
$7,310,000using the relative share of GDP


U.S. Government To Save

U.S. Government To Save Billions By Cutting Wasteful Senator Program

http://www.theonion.com/articles/us-government-to-save-billions-by-cutti...


HEELARIOUS! Color me baffled,

HEELARIOUS!

Color me baffled, but I've not heard of this repeal movement. Wow. What is up with this sudden wish for a national do-over?


Seems Reasonable

Thanks for the links! The intention of the constitution has been severed by this amendment and it seems for no good reason.

The only point I wanted to make was that I don't see repeal as making any significant positive difference. In fact, I see it as stalling even good legislation. I mean, given that the two houses serve the same consituents and are lobbied by the same forces today and things still take FOREVER to get done, wouldn't this change basically encase the whole process in cement?

Perhaps that is the goal.


17th Amendment

@JakeCollins, Your statement is unconvincing, at best. If you really want to back up your implication that somehow we had a "more corporatist Senate" prior to 1913 then at least provide some proof. So far, the above mentioned and referenced scholarly works clearly demonstrate that in reality the two main issues (bribery & deadlocks) were NOT at all what they were sold as to muster popular support (more like hysteria) to get the 17th Amendment ratified. I challenge you to actually study those works and then counter them with your own facts. If anything we've become more corporatist AFTER 1913, than at any other time in our nation's history.

Then again, there's the issue of representation that never was resolved. Perhaps you can help me with this one little problem: In California I have 2 Senators, and apparently you believe they should represent all 36 Million people who reside in this state. In Wyoming they have the same number of Senators, with just 600K people. Explain to me how that is fair or balanced. Please.


Well, even with the repeal of

Well, even with the repeal of the 17th there would still be two senators from each state representing the interests of each state government in the federal government and thereby their whole state citizenry by proxy. Your question is rather moot because WY would still be on equal footing as CA in the Senate. Under both scenarios, citizens are more directly represented within the federal government in the House.

I like this idea of repeal because it is clear that the intention of the amendment has failed and it has weakened the structure of the government for no reason. I don't believe the Consititution was a perfect document and I certainly don't fetishize our founding fathers like a lot do these days, but after reading up on this, the 17th seems to make no sense whatsoever given the realities of our political process today. After a hundred years can we honestly say that influence has been held at bay? That good legislation is more often the result? I say repeal it simply to reset the original intent of the structure of the federal government and find actually effective methods to mitigate special interest influence from both corporate and labor sources.

My only concern with repeal would be that the Senate, even more so than today, would become the place where ALL legislation goes to die. That would be a bad thing in my eyes. But I do like the idea of giving some power back to the state governments. For example, here in Colorado Gov. Ritter appointed Bennett to fill "Heckuvajob Kenny" Salazar's seat. Well, that was a major effup since Romanoff was the clear choice of all Colorado Dems. That move pretty much suffocated what little Dem support Ritter had left after stabbing labor in the back and a small scandal, so he decided not to run for re-election. So after the repeal of the 17th, if a state government appoints a Senator under unsavory circumstances or is an unpopular choice, they can recall that person or they can face the voters. State governments are much more responsive to the citizens than at the federal level in my opinion, provided measure are taken to curtail special interest influence.


The 17th A. needs to be repealed to restore the republic

Given the very limited powers that the Founders actually delegated to Congress in Section 8 of Article I, the Founders made the 10th Amendment to reserve the lion's share of government power to serve the people to the states, not the Oval Office and Congress.

But also consider this. Not only do the states have greater powers to serve the people, but Chief Justice Marshall had appropriately established the following case precedent. Justice Marshall officially wrote that Congress is prohibited from laying taxes in the name of state powers issues.

"Congress is not empowered to tax for those purposes which are within the exclusive province of the States." --Chief Justice Marshall, Gibbons v. Ogden, 1824.

So along with the greater constitutional power to serve the people, the states also have greater powers to lay taxes.

But just as importantly, consider the following. The Founders had established the federal Senate to be the voice of the constitutionally-powerful state legislatures in the constitutional-humbled federal government. This is evidenced by Article I, Section 3, Clause 1 (1.3.1).

1.3.1: The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.

So the Founders had intended for the federal Senate to protect the interests of the state governments in the federal government, including protecting state revenues.

Consider public healthcare, for example. Given the Constitution's silence about healthcare, the 10th A. automatically reserves government power to tax and spend for healthcare purposes to the states, not the Oval Office and Congress. So why are we now seeing the federal government taxing and spending for healthcare purposes when the states uniquely have the power to do so?

The problem is, that under pressure from the Progressive Movement in the early 20th century, state lawmakers foolishly ratified the 17th Amendment, unthinkingly giving up the voice of the state legislatures in the federal government.

The unwanted consequence of the 17th A. is the following. Constitutionally indefensible legislation inspired by FDR and Obama, as examples, legislation which wrongly usurped not only state powers, but also robs state revenues associated with those powers, would normally have been killed by the federal Senate to protect state interests. But since the federal Senate no longer answers to state lawmakers because of the insane 17th Amendment, the senators that voters are sending to DC are turning around and robbing their own states of unique state powers and state revenue associated with those powers. (Are you listening bankrupt California?)

Also, note that Progressives will argue that it is only fair that citizens have the power to vote for federal senators because that's taxation with representation, right? But what Progressives are wrongly ignoring is this. The Founders had decided that only the House of Representatives, for which the Founders had given citizens the power to vote for from the start, can initiate legislation which raises revenue. This is evidenced by Article I, Section 7, Clause 1 (1.7.1).

1.7.1: All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

So not only did the 17th A. actually not change anything with respect to taxation with representation, because citizens had the power to elect members of the HoR anyway, but the 17th A. essentially took the country a giant step from being a republic to a mob-ruled democracy that the Founders had worked so hard to avoid.

The bottom line concerning the 17th A. is the following. Given that the states, not Congress, have the unique, Article V power to amend the Constitution, voters need to replace Constitution-impaired incumbents in the state legislatures with pro-constitutional process lawmakers in November as much as they need to replace incumbents in corrupt Congress. Then pro-constitutional process lawmakers in both the federal and state governments can use their legislative votes to kill illegal federal taxes by ultimately repealing the 17th Amendment to restore the Senate to the Founder's plan, thus restoring the republic.




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