Repeal the 17th, Part II

I believe that the 17th amendment to the US Constitution -- direct election of US senators -- was one of the "roads to hell, paved with good intentions." Though, I also question whether all the original proponents of the scheme really did have good intentions. They were "Progressives," after all.

Back in February, I posted my argument for repeal of the 17th.

Today, I read a smilar argument on the 'American Thinker' magazine that I wish to share with Gentle Reader -- John W. Truslow, III: It's the Constitution that's Radicalizing Our Politicians

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In contrast to the above, 1) Conservatives understand that unchecked majority rule can be tyranny. 2) Conservatives distrust the coercive power of individual celebrity, putting their faith in just institutions. 3) Conservatives believe that a principled process is more valuable than an efficient practice. So, when analyzing the current political debacle as conservatives, there is a very different conclusion to be drawn: The system itself encourages radicalism (be they Republicans in 2003 or Democrats in 2010), and without systemic change, radicalism will continue to advance. Therefore, conservatives must work first to restore the integrity of the constitutional order.

The 17th Amendment to the U.S. Constitution (1913) is a clear catalyst for American radicalism, bringing a century of immeasurable disorder to the original constitutional framework. Before the passage of the 17th Amendment, the Constitution provided moderate, temperate government primarily by limiting the federal government's power. It did this by a) establishing a political -- not judicial -- arena for the competition of unaligned self-interests, b) broadly diffusing power through a process of checks and balances existing between the federal and state governments, and also among the three branches of the federal government, and c) enumerating specific powers, such as the commerce clause (from which Congress justifies the bulk of its current activity). The 17th Amendment eviscerated all three parts of that structure, and in doing so created the context in which radicalism has flourished in both parties. Consider each of these in turn:

First, before the passage of the 17th Amendment, members of the Senate were chosen by state legislatures to be the agents of those sovereign governments in Washington, D.C., much like ambassadors today at the United Nations. While a member of the House would represent the intemperate passions of the people as citizens, a senator would represent the very different interests of the people's state governments. The interests of the two bodies were purposefully not aligned -- their constituencies were different. The 17th Amendment allowed for the direct election of senators by the citizens of each state. What the U.S. had prior to 1913 was a bicameral legislature competing bill-by-bill for the direction and scope of the federal government. Now that both representatives and senators have an identical interest (pandering to the citizenry), Congress is one herd of cattle in two pens.

Second, by removing the states' voice in the federal government, the 17th Amendment crippled the original meaning of both "separation of powers" and "checks and balances." As a direct result, the states are effectively powerless to stop the expansion of national government into their sovereign affairs. There is no other effective restraint. Put differently, given the structure of government under the 17th Amendment, there is no reliable way to stop the spread of national government power because the constitutional check against its expansion has been eliminated. Electing a majority of "better" candidates to high office will not solve this problem because -- as the Framers well knew -- a system in which political power is unchecked radicalizes the behavior of any man within it.

Third, mindful of their different constituencies, the Constitution gave the Senate functions different from those of the House, such as the confirmation of Supreme Court justices. There was a reasonable expectation that the emissaries of the states in the Senate would approve only of those nominees possessing a view of government that defended the state's sovereignty and right to govern responsively. With the Senate no longer populated with members appointed to represent the interests of the states, Supreme Court justices have allowed the original (and very limiting) meaning of the commerce clause to erode in favor of Congress's interests.

Congress -- now aligned with the majority's fanaticism -- has responded by taking as much power as possible. Consider the plight of states' Attorneys Generals as they file suit to halt the implementation of the health care reform law: The states are making their constitutional appeal to justices confirmed by senators who do not have the states' interests at heart. Prior to the 17th Amendment, there was virtually no chance that any legislative action filled with unfunded mandates to the states would ever clear a Senate composed of states' representatives. Today, all the states can do is pray that justices confirmed by the exact body that voted for the law in question will come to their aid. Good luck with that.

Conservatives view the current political structure as broken, not simply populated by the wrong group of scoundrels. Focusing first on large conservative majorities, better communicators, and merciless implementation is playing the short game. To set the country on a sustainable path, we must first embrace the old and tried and repeal the 17th Amendment.

Mr Truslow draws an even stronger inference than I did that it is direct election of US senators which has upset the US Constitutional order, which upset is working to destroy our liberties. I like that: "Now that both representatives and senators have an identical interest (pandering to the citizenry), Congress is one herd of cattle in two pens."

In the US Constitutional order, it is the Congress -- not the Presidency, and certainly not the Supreme Court (for it, like all the Federal Courts, is a Creature of Congress) -- which is the "supreme" branch of the Federal government. But, as they well knew from the history of the English Parliament, to say nothing of Rome and Athens in ancient times, that very supremacy of the legislature is dangerous to our liberties; and so the Framers divided the Congress against itself, with the two parts having conflicting interests and incentives, in much the same way that they divided any governmental sovereignty (for the US Constitutional order presupposes and asserts that sovereignty actually resides in The People, not in the governments) in the system between the Federal government and the State governments.

The US Constitution isn't about "efficiency" in government ... it's about the preservation of the liberties of the US Citizens against the universal imperative of all governments to gather power to themselves and eventually crush the human persons subject to them.

Always remember: the US Constitution intends for the Federal government to be "inefficient;" for it intends that that government be divided against itself so that it cannot be united against us.