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Tuesday, May 17, 2011

In Defense Of The 17th Amendment

One of my FB friends asserted that the 17th Amendment is shitty, and I responded with tongue planted in cheek, "Why do you hate democracy?"  She followed up:

Why would you ask me that? I don't hate it but it is ultimately the tyranny of the majority of the minority. Do you understand what the 17th amendment did? Why do you love power of the few over the many?

And thus a blog post was born.

First of all, I take issue with the idea that democracy is ultimately the tyranny of the majority.  Sure, a purely democratic system can manifest such a form of tyranny, as we've seen in California with Prop 8 being passed through the initiative process and denying civil rights to a minority.  But overall democratization I think is a good thing if you tie it to mechanisms to mitigate its potential to oppress, which we do generally have in the Federal and state Constitutions.  

Our republican structure does buffer the mob's passions to a large extent, so expanding the scope of our franchise carries less risk of tyranny than having a electorate that is divorced from its own governance, or a government too far removed from its populace.  I'd say our biggest problem right now is not that too many people can vote on too many things, but rather too few vote, and bank accounts hold more sway than ballot boxes.

Anyway, I'm fairly certain I understand what the 17th Amendment did, thanks!  Ratified during the so-called Progressive Era (which also gave us California's brand of direct democracy and Prohibition), it was consistent with a long arc of increased access to governmental and electoral processes: no office-holder property requirements in the Federal Constitution vis state plans of government, ratification through Conventions rather than Legislatures, gradual increase of popular voting for Electors, the 15th and 19th Amendments, and most recently the 24th and 26th Amendments.

Direct election of Senators preserves our republican structure as states retain equal suffrage in the Senate (which ain't changing unless you start from scratch or somehow convince small states like Vermont to give up their leverage, per Article V), keeps longer terms for Senators than Representatives (still insulating them from the fiery and oft fickle passions of the mob), and staggers the Senatorial classes so the chamber is more consistent and stable in the face of prevailing political winds (giving further lie to claims I've seen that popular election makes the chamber a "clone" of the House).  The Amendment does this whilst making Senators more accountable to the People, the ultimate Sovereign in the Several States as well as at the national level.

If you want to give nod to the Framers' vision in this debate, they generally were concerned about corruption and tried to distribute centers of power that could be influenced by corrupt forces.  So the Electors don't meet together, making it harder (at least in the 18th century context) to bribe them, for example.

One objection to Senators' being chosen by Legislatures was that the body would become an aristocratic tyranny of sorts, which was addressed in Federalist 63:

[T]he general reply ought to be sufficient, that liberty may be endangered by the abuses of liberty as well as by the abuses of power [let's pause and savor that statement for just a moment]...But a more particular reply may be given.

Before such a revolution can be effected, the Senate, it is to be observed, must in the first place corrupt itself; must next corrupt the State legislatures; must then corrupt the House of Representatives; and must finally corrupt the people at large.

So there was concern, but it was thought that the risk was balanced out by the overarching structure of Congress and the need to have state governments tied to the national government.  Yet the Constitution was ultimately ratified by the Several States, and we had a civil war that fundamentally transformed "the United States are" into "the United States is".  Therefore I'm not so sure there's a compelling need for such an explicit bond between state Legislatures and Congress to maintain our Federal balance given that the essential nature of the Senate itself hasn't been altered.  What's more, part of what gave momentum to changing the process was corruption (Publius' quaint notions notwithstanding), any Legislature being a body politic much smaller and more concentrated than the electorate at large, and thus arguably easier to corrupt.

Regardless, let's not over-venerate the Framers and their first draft.  One must never forget things like the dehumanizing 3/5s Clause that increased the influence of slaveholding states (finally excised by the 14th Amendment) or the Presidential selection process that immediately showed its weaknesses in the post-Washington era (and needed the 12th Amendment to repair in just a couple election cycles).  The Father of our Constitution himself didn't place inordinate stock in his own vision:

As a guide in expounding and applying the provisions of the Constitution, the debates and incidental decisions of the Convention can have no authoritative character. However desirable it be that they should be preserved as a gratification to the laudable curiosity felt by every people to trace the origin and progress of their political Insitutions, & as a source parhaps of some lights on the Science of Govt. the legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people...

We the People have been constantly reinterpreting and modifying our Constitution to continue the work of forming a more perfect Union.  As early as the Lincoln-Douglas Senate race in 1858, states started experimenting with more direct voter participation.  By the time of the 17th Amendment, more than half of them had some variation of direct-primary or the Oregon Plan, so making a democratic change nationwide was pretty much inevitable at that point, driven by the People and the states themselves.

The only Amendment we have ever repealed was the 18th, for good reason because it is also the only Amendment that restricted individual liberty instead of expanding it.  I don't see any compelling argument to undo the 17th (or the 16th or 14th for that matter, but that's for another discussion), which increased the People's voice in Congress.


May 17, 2011 in Constitution, Schmonstitution | Permalink


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A link to the text of the 17th amendment would have been helpful...

Posted by: darms | May 19, 2011 1:29:12 PM

I was under no Constitutional obligation to provide that which is easily found on the Intertubes should one's civics class fail to cover it.

Posted by: NTodd | May 19, 2011 9:04:38 PM

One of the good features of direct senatorial elections is that there's no gerrymandering of districts, unlike for representatives.

Now, add to that the fact that state representatives and state senators get to gerrymander their own districts...NO, I don't want them to appoint senators.

Posted by: Snarki, child of Loki | May 20, 2011 3:49:26 PM

Now, add to that the fact that state representatives and state senators get to gerrymander their own districts...NO, I don't want them to appoint senators.


Posted by: NTodd | May 20, 2011 4:42:07 PM

oops. I thought it was a yes or no question.

Posted by: mortski | Apr 9, 2012 8:38:45 PM

oops.posted to the wrong topic. oops. spilled my beer on my pants. hey, those aren't my pants..

Posted by: mortski | Apr 9, 2012 8:40:30 PM

Can I borrow your pants? Mine have beer on them.

Posted by: NTodd Pritsky | Apr 10, 2012 12:27:42 PM

The Senate is part of what makes small financially and ideologically corruptible minorities, quite often bought off, able to pervert the entire government and the courts. If someone's going to point out what's shitty about it they could start with the one man 0.0149th of a vote that it guarantees to millions of Americans. That is if you happen to live in California as opposed to Wyoming. I'd get rid of it or make it effectively equal in representation. They are the reason small, corrupt and stupid groups with control of individual states can prevent good government in the United States, the reason we are being murdered by the gun industry and its paranoid dupes. There's no reason that senatorial districts have to be determined by state lines, they could be truly equal. Bernie Sanders represents me more than any Senator I've had during my entire life.

Posted by: Anthony McCarthy | Apr 8, 2013 10:24:38 AM

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