It's rare to see a sitting Supreme Court Justice call for repeal of parts of our Constitution, but that's what in fact happened last week when Justice Antonin Scalia took a page from the Tea Party playbook and urged a return to the document as it was first written. Calling the framing of the Constitution by the Founders of America "providential," Justice Scalia argued that we should "change it back to what they wrote" and specifically called for repealing the Seventeenth Amendment. Giving Americans the right to vote for Senators in the Seventeenth Amendment, Scalia argued, was a mistaken "burst of progressivism in 1913, and you can trace the decline of so-called states' rights throughout the rest of the 20th century. So, don't mess with the Constitution." Apparently, for Justice Scalia, Americans who used the Article V amendment process the Framers of the Constitution provided in order to make the Constitution a better, more just document -- such as by insisting on more democracy for all Americans in the Seventeenth Amendment -- were "mess[ing] with the Constitution."
In siding with the Founders' Constitution (even though this "providential" document, among other things, sanctioned slavery) over the document that exists today, Justice Scalia ignores the reasons why we actually have the Seventeenth Amendment. As described in detail here, the election of Senators by state legislatures -- the process provided in the Constitution as first written -- led to rampant and blatant corruption, letting corporations and other moneyed interests effectively "buy" U.S. Senators, and tied state legislatures up in numerous, lengthy deadlocks over whom to send to Washington. In fact, although Justice Scalia decries the Seventeenth Amendment as precipitating an alleged decline in "states' rights," the states themselves were instrumental in securing the approval and ratification of that Amendment. For someone so well versed in the Constitution's history, Justice Scalia got the history here dead wrong.
In Scalia's version of history, the Constitution was diminished in the 20th Century, as states lost more and more of their authority. Justice Scalia blames the Seventeenth Amendment for this shift, but, of course, the Seventeenth Amendment did not give the federal government more powers, it simply made the Senate directly accountable to the people. Scalia's real beef, then, is with "We the People," who used the right to vote provided in the Seventeenth Amendment to send to Washington Senators willing to use Congress' express constitutional powers to enact federal laws regulating the states and protecting individual rights.
Moreover, Scalia's account of the Constitution in the 20th Century as a tragic constitutional era in which the States supposedly lost some of their "rights" misses the bigger picture. It is only in the last century -- the century Scalia laments -- that the Constitution became truly democratic. The Seventeenth Amendment gave the people the right to vote for Senators; the Nineteenth Amendment gave women the right to vote, ending the exclusion of half the population from the promise of equal citizenship; the Twenty-Fourth Amendment gave young adults the right to vote, broadening, once again, this fundamental right. It is only in the last century that the Supreme Court and the nation finally honored the text of the Civil War Amendments, which sought to redeem the Constitution from the sin of slavery by guaranteeing citizenship, liberty, and equality as a birthright of all Americans.
All Americans should celebrate the fact that state and local governments today can no longer trample on people's fundamental rights, and that Congress has broad authority to protect the rights of all Americans and solve national problems. That's a story of constitutional progress, not "mess[ing] with the Constitution." It's time Justice Scalia -- and his ideological soulmates in the Tea Party -- honored the whole Constitution, including all the Amendments that make the Constitution the great and enduring document it is today.
Cross-posted at Text & History.