As I was preparing to write a column on the ludicrous maligning of the Tea Party movement by liberals, Democrats and the mainstream media (which I hope to write next week, instead), I started thinking about one of the key objectives of the Tea Party people -- the strict enforcement of the 10th Amendment ("The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people").
As an early 1960s vintage member of the then-new conservative movement, I remember us focusing on the 10th amendment during the 1964 Goldwater campaign. It has been a staple of conservative thought, and the continued dormancy of 10th amendment enforcement has been one of the failures of our now half-century-old movement.
But just as the Tea Party movement in so many ways seems to represent the 2.0 version of our movement, so I again thought about the 10th amendment anew. After about 10 seconds' thought, it struck me that the best way to revive the 10th Amendment is to repeal the 17th Amendment -- which changes the first paragraph of Article I, Section 3 of the Constitution to provide that each state's senators are to be "elected by the people thereof" rather than being "chosen by the Legislature thereof." (As I Googled the topic, I found out that Ron Paul and others have been talking about this for years. It may be the only subject that could be proposed and ratified at a constitutional convention with three-fourths of the state legislatures.)
At first blush, this might seem counterintuitive, as the 17th Amendment was brought about by a populist movement supercharged by muckraking articles in the newspapers of William Randolph Hearst. Those articles exposed corporate bribery of state legislators to control senatorial votes. As the direct election of senators by the people was a reaction to the corrupt lobbying of state legislatures that so aggrieved late-19th-century Americans, it might seem odd to recommend its repeal now -- when again, corrupt lobbying and the aggrandizing of excessive government power over the people is part of the fuel that is driving the tea parties. It certainly seems particularly odd for me to suggest this just a week after the election of Scott Brown to the Senate by an aggrieved public that has just overwhelmed with their individual votes the Boston Democratic machine.
But in my defense, let me initially note that the 17th amendment has not yet ended the legal but appalling bribery of U.S. senators -- it has merely moved it to Washington. Senators today succumb far too often to such influence -- whether from the White House, the leaders of the Senate or national lobbying forces. Moreover, it has been since 1913, when the 17th Amendment was enacted into law, that the 10th Amendment increasingly began to be ignored.
The nature of our government is largely a product of political power being applied to lawmakers and executors. The U.S. Constitution remains in force to the extent that its arrangement of political power tends to be the happy byproduct of power's self-interested exercise. The genius of our Founding Fathers was to recognize the inevitable victory of power over principle -- and to so arrange the distribution of power that in that exercise of self-interest, offsetting forces would keep constitutionally guaranteed rights in existence nonetheless.
With episodic waxing and waning, that arrangement has worked reasonably well for over 200 years as among the separated powers of the three federal branches: Congress, the presidency and the Supreme Court.
It has almost completely failed as between the once sovereign states and the federal government. The sovereignty of the state was overturned (or, if one prefers, disproved) with the conclusion of the Civil War. The remaining states' rights began to be undermined with the post Civil War 14th Amendment. Through expansive interpretations of the 14th Amendment, the Supreme Court progressively reduced states' rights by nationalizing the Bill of Rights, starting in 1897 (Burlington & Quincy Railroad Co. v. Chicago); continuing in 1947 with Justice Hugo Black's famous dissent in Adamson v. California; and concluding in 1961 when the court in Mapp v. Ohio totally incorporated the Bill of Rights to the states through the 14th Amendment's due process clause.
For about a hundred years after the Civil War, defense of "states' right's" was most conspicuously made to defend continuing limitations on the rights of blacks. Thus, states' rights were seen as a mere euphemism for a repugnant and retrograde proposition, and were therefore a weak banner under which to defend more noble political propositions.
As federal power was expanded at the expense of state rights in order to vindicate the rights of blacks (and, less visibly, to aggrandize other powers in Washington), a dangerous constitutional imbalance came into being regarding all federal/state jurisdictional matters.
The most efficient method of regaining the original constitutional balance is to return to the original constitutional structure. If senators were again selected by state legislatures, the longevity of Senate careers would be tethered to their vigilant defense of their state's interest -- rather than to the interest of Washington forces of influence.
The Senate then would take on its original function -- the place where the states are represented in the federal government.
Senators still would be just as likely to be corrupted. But the corruption would be dispersed to the 50 separate state legislatures. The corruption more often would be on behalf of state interests. And its remedy would be achievable by the vigilance of voters for more responsive state legislative seats (typically, about less than 50,000 residences per state legislator), rather than Senate seats (the entire population of the state -- usually millions.)
Only by changing the architecture of power will we change the shape and exercise of power.
Until we get rid of rule by 2 monolithic parties, it will not matter where or how we elect our Senators, they will be corrupted on taking the oath. We need to have more views in the Senate not less. We need to use some kind of proportional vote..like they do in Germany.
As a New Yorker that last thing we need is our votes utterly ignored by Albany. They are so corrupt, sometimes arranging seats with no opponents that democracy is an utterly foreign concept to them. Forget morality they lack ethics, except those of crooks and bankers. Getting rid of the 17th Amendment would be a poor reform, it's not geography that's the problem it's the Oligarchs.
A state legislature is much more likely to be pragmatic about the history and performance of senators. At one time the staes were not homogenous politically like they are now. this is a direct result of the 17th amendment. There are those who want to consolidate power in the federal government, which is in conflict with what the founders intended. The states formed the federal government. Our national motto is E. Pluribus Unum. This is Latin for "out of many one'. That is how the government was formed.
I know there are many progresives who will try to argue against states' rights. I understand their argument, but it doesn't reflect my opinion about it. In other words, its just another opinion.
The conservatives are supposed to be all about the power of the individual and a "strict interrpretation" of the Constitution. Then again, their silence on warrentless wiretapping was deafening.
The conservative movement seems to select its Amendments it deems convenient to thier arguments.
That is a crazy idea and would be a disaster.
What it WILL do is help. Maybe a little, maybe a lot. I say run congress the way it was designed by Madison and others.
The House and Senate are different houses because of the make up of each body, not because of how they are chosen.
Using Blankley's logic we would live in a monarchy, where people have no say over who's in power. His corruption argument is specious.
Federalist #62 part II by James Madison:
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II. It is equally unnecessary to dilate on the appointment of senators by the State legislatures. Among the various modes which might have been devised for constituting this branch of the government, that which has been proposed by the convention is probably the most congenial with the public opinion. It is recommended by the double advantage of favoring a select appointment, and of giving to the State governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems.
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Read the whole of Federalist #62 if you must. Direct election of Senators obliterates the whole purpose of the Senate representing STATE SOVEREIGN INTERESTS.
I find this weird, given that in Canada we don't elect our Senators, they're chosen by the Prime Minister. There's proposals out there to end this practice and start electing Senators...
Is this that so-called progress of which Progressives speak?
The days of 13 far-flung, agrarian colonies is long over. The idea of having states for anything other that bureaucratic expedience is silly. I'm an American first and a Texan second. I'm a lot prouder if the first than the second.
If you want to stem political corruption, then limit terms, get corporations and PACs out of the election funding business, and make sentences for corruption convictions equivalent with those for treason. Problem solved.
Centralized the control and planning only provides a larger the pool of accumulated taxpayer capital as a means to bigger the bureaucracy, and finally bigger corruption. Ultimately collapse, then dictatorship.
http://feeds.kcrw.com/kcrw/lr
It's a good show, entertaining and informative. Tony Blankley is a regular on the show, along with Matthew Miller, Robert Scheer, and A rianna H uffington. It's always interesting to hear them argue with one another.
So, with tounge firmly in cheek, I shall propose an alternative....
You should assert that the 17th Amendment is unconstitutional. Take a deep breath and follow the argument. How in the name of constitutional law can an amendment, duly ratified by the requisite 3/4 of the states be unconstitutional? Easy, take a close look at Article V of the Constitution. It provides for certain exceptions to the amendment process... the only exception being relevant today and for our purposes is this:
"that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."
Now a pretty decent argument can be made that this means more than that each state will have an equal number of senators. If the meaning is that the State, as an entity, is entitled to equal representation in the Senate and that the 17th deprives them of this representation since the power to elect senators is taken from the state and given to the people of said state... well Houston, we have a problem,.... the 17th was not ratified by ALL of the states and can not therefore be a valid amendment under Article V.
More...
There is a problem with this approach, however. It means that there is no valid forum which can address the issue. If the 17th is unconstitutional, it is void ab initio, and no action taken by a senate composed of elected Senators can be valid... no law passed after 1913 can be valid, no treaty passed after 1913 is binding and.... NO JUDGES confirmed by the Senate after 1913 validly hold their seat... No judges, no SCOTUS; No SCOTUS, no court to declare that the 17th is unconstitutional... a classic catch 22.
;-)
"At consent of the governed"
You can argue all you want, it will never happen.