Balkinization  

Friday, November 12, 2010

The Tea Party, Once Again, Has History All Wrong: The True Story of the Seventeenth Amendment and Federalism

David Gans

Tea Partiers love the Constitution, except for the parts they want to jettison. In fact, time and again, when they claim they want to restore our Founders’ Constitution, this means repealing Amendments that “We the People” have added to the Constitution over the last two centuries. For example, even as many Tea Party candidates have run for election to the U.S. Senate, members of the Tea Party movement regularly argue for the repeal of the Seventeenth Amendment, which provides for the direct election of Senators, giving Americans the right to vote for the Senators who represent them in Congress. To these Tea Partiers, we’d be better off if state legislatures had the power to choose our Senators, the manner in which Senators were chosen before the Seventeenth Amendment.

This week, in the National Review, George Mason Law Professor Todd Zywicki tries to provide an academic defense of the Tea Party’s repeal campaign, arguing that the Framers of the Constitution were right to give state legislatures the power to elect Senators as a bulwark of federalism and protection of states’ rights. According to Zywicki, this was “good politics and good constitutional design” that the Progressive movement of the early 20th Century bungled. “By securing the Seventeenth Amendment’s ratification,” Zywicki argues, “progressives dealt a blow to the Framers’ vision of the Constitution from which we have yet to recover.” But Zywicki has it exactly backward. The Seventeenth Amendment marks our constitutional progress – one of many examples of how “We the People” have made our Constitution a better document, more respectful of the right to vote and basic principles of democracy. And it was the States themselves – supposedly the beneficiaries of the Founding regime the Seventeenth Amendment displaced – that were instrumental in securing the approval and ratification of that Amendment.

Even before ratification, the States had recognized that more democracy was a good thing by changing their own laws to give the people a voice in electing their own Senators. By 1912 – when the Senate finally capitulated to public pressure and approved the Seventeenth Amendment – thirty-three states had provided for direct primaries; another twelve states had implemented the “Oregon system” in which candidates for state legislative office pledged whether or not they would adhere to the results of the popular vote for Senator. Between 1874 and 1912, Congress received 175 petitions from state legislatures calling for direct election of Senators. Most important, when year after year, the Senate refused to approve the proposed Seventeenth Amendment, states around the country petitioned Congress for a constitutional convention. By 1910, 27 states had called for a convention, and only the threat of an actual convention finally spurred the Senate into action.

If election of Senators by state legislatures was the bulwark of federalism Zywicki calls it, why did so many states push to eliminate it? The answer – completely absent from Zywicki’s account – is that election of Senators by state legislatures was a disaster. Far from being “good politics” or “good constitutional design,” the system 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, leaving those bodies with far less time to devote to the job of enacting the laws their states needed for the welfare of the people. These ills made the case for bringing the election of Senators in line with the Constitution’s fundamental values of protecting democracy and securing the right to vote to all Americans a very strong one. Once the Senate relented and approved the Seventeenth Amendment, the States ratified the Amendment in less than eleven months.

Zywicki complains that the Seventeenth Amendment was ratified without any thought of its consequences for the Constitution’s protection of federalism – part of a consistent pattern by conservatives to belittle the intelligence and motives of the brave Americans who have fought for and secured constitutional Amendments -- but that is not, in fact, correct. In both the House and Senate, members of Congress who opposed the Seventeenth Amendment argued for retaining indirect election of Senators, calling the proposed Amendment “a most direct blow at the doctrine of State’s rights and at the integrity of state sovereignties.” Zywicki’s federalism arguments were in fact made at the time, and dismissed by the American people.

The American people rejected the idea that state legislatures should be charged with selecting the people’s Senators; that was a false federalism that exalted wheeling and dealing in corrupt state legislatures over the voice of the people themselves. Going forward, the people would select the Senators responsible for representing their and their state’s interests in Washington. States acting as “laboratories of experimentation” – itself a venerable principle of federalism – recognized that the process the Founders selected did not work, and that direct election of Senators by the people was a better fit with our constitutional principles.

David Gans is the Director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center. This post is cross-posted at Text and History.

Comments:

I wonder if Prof. Zywicki genuinely believes in his thesis, or if, as an elite, he's secretly thrilled that the rubes are agitating to surrender their own right to vote. I confess I never thought I'd see the day.
 

The article sounds like a bad attempt to take the other side in a debate class, but here you get the idea he is serious.

For instance, it is "unthinkable" that modern national programs would be in place under the old system. This when many of them are firmly supported by the states or the people who select the people who would pick the senators under the old system.

The use of "Obamacare," of course, is a sort of red flag. Like his Volokh Conspiracy friends, that is the white whale. Very little on the marijuana measure which various people over there say they support. Post after post on that.

Other arguments are risible. Like the old system allowed Daniel Webster et. al. to go in and out of the Senate. Why -- when once retired senators still return to the U.S. Senate repeatedly -- this is prevented now is unclear. And, if the state legislature changed hands, I don't think it would just re-elect an old hand of a different party.

Finally, and most importantly, the repeal is pointless. It would require a mandatory provision, which would harm federalism, since the people would still want to pick their senators. This is what occurred many cases even before the 17A was ratified.

A repeal would set up some sham Electoral College like system where the legislature would technically choose but would just follow the will of the people. The people of each state voting separably ... you know, federalism.
 

Anyone who thinks that the manner in which Rod Blagojavich appointed Roland Burris to the Senate was a model of good government should favor repeal of the 17th Amendment.
 

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One of the annoying consequences of disabling comments is that it's hard to note corrections to the post. Justin Mazzone's post about DADT has the wrong case name -- Perry v. Schwarzeneggar is the gay marriage case.
 

Just a tad semi-off-topic, but "states rights" is an abominable phrase. People have rights, states have powers; all "states rights" issues are conflicts about defining the jurisdictions of state and federal power.

Ideally, we prefer whichever jurisdiction provides the least infringement on our rights: the rights which are yours and mine, not our local government's (and if my state has rights, why can't the federal government also have rights?).

This pernicious term encourages the internalization of state power. The language of "respecting rights" infiltrates our thinking: so not only must the state respect citizen's rights, but (subliminally) states rights must in turn be respected by its citizenry. I don't hear people saying "my state has the legitimate power to ban same-sex marriage," but I do hear people say "my state has the right to ban same-sex marriage."

I'd recommend substituting "states powers" for "states rights" whenever possible -- you may not change the culture but you'd encourage clearer thinking about the issue.
 

Besides having the wrong case name, I am curious as to how Professor Mazzone worked it out that the Supreme Court will split 4-4 in reviewing the Ninth Circuit's decision on DADT. Not only does it presume a purely political outcome (the Court is going to split into a pro-DADT and anti-DADT bloc regardless of the legal basis for the Ninth Circuit's ruling), but it assumes, I guess, that Justice Kennedy falls into the anti-DADT camp. This must be so self-evident to Professor Mazzone as to require no explanation, but perhaps he could humor us less intuitive types . . .
 

This doesn't guarantee that Kennedy will vote to strike down DADT, but he did write the opinions in Romer v. Evans and Lawrence v. Texas.
 

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What Tea Party campaign to repeal the 17th Amendment? To the extent that regular Tea Party folks are even aware of this largely academic debate, it would rank down between the presidential prospects of John Thune and whether MSNBC should have suspended professional jerk Keith Olberman.
 

Is our former Backpacker the voice of "regular tea party folks" on what he describes as a non-Tea Party issue? But there seem to be some apparently constitutionally constipated tea party irregulars supporting the issue.
 

By the Bybee (&#^%$*!), it's "Jason" - not Justin - Mazzone.
 

shag:

If you read the post election polling, there are millions of Tea Party voters. A few folks in the movement who are interested in the 17th Amendment was less than a drop in the tsunami wave election.
 

Tsunami? If the GOP had won the Senate, it would have been a tsunami.

Also, question:

The "few folks" in the Tea Party who are interested in the 17th Amendment are:

a) Tea Party candidates
b) People writing the Tea Party surveys sent to candidates in advance of the election
c) Vocal leaders of many Tea Party branches across the nation
d) all of the above

If the answer is d), then David is perfectly able to call it a Tea Party campaign to repeal 17A regardless of what the "regular folks" care about.
 

I'm not at all sympathetic to Zywicki's view but I have a different question about how things would work if we repealed the 17th Amendment. I'm not at all clear how election by state legislatures would lead to the kind of federalism/states rights that Tea Partiers favor. The assumption seems to be that putting that power in the hands of state legislators would make U.S. Senators more accountable to their respective states and not to their respective political parties or to the nation but I don't think that this is obviously true. For example, here in CA, the Democrats easily control both houses and now the governorship. It would seem that what would happen if the 17 Amendment were repealed would come down to which party controlled both houses of the state legislature (w/ the exception of Nebraska, which is unicameral, I think). So far, this hasn't been spelled out, and Zywick's appeals to history (and may be wrong about that history) but one would think that a present-day institutional argument in support of his position would be more appropriate.
 

At the risk of seeming cynical, I admit that I wonder if this eagerness to repeal the 17th is based on a belief that state legislatures tend to be more conservative and/or likely to have a few bona fide libertarians.

If that surmise is correct - and, god knows, looking at PA's state legislature, there is good reason to believe that any fringe character can get in - repeal of the 17th might be seen as advantageous to extreme conservatives and to those, like libertarians, who don't seem to fare well on the broader field of fully statewide elections.
 

My perspective on this is that the most obviously broken aspect of the Constitution is that the limits on federal power are no longer being enforced by the judiciary. Yes, I realize that, for the most part, you lot don't WANT those limits enforced. But even a safe cracker looking at a safe with the door blown off ought to have the honesty to admit it's broken, even if he wants it that way.

My diagnose of why those limits are not being enforced any more is that it's because the judiciary is now entirely chosen by federal officeholders in whose interest it is that those limits be ignored by the judges they chose.

Now, before the 17th amendment, it was still the case that it was in the interest of Senators that judges not enforce constitutional limits on federal power. But they had to take into account that, if they became too egregious in their stacking the judicial deck, the states retained the power to end their careers. The 17th amendment abolished that check on Senatorial behavior, no matter how theoretical it might have been.

OTOH, while I think the 17th amendment did break an important aspect of the Constitution, it is none the less true that the states had voluntarily instituted direct election of Senators prior to the amendment, and even were it repealed, would probably not resume appointing them.

Just because something broke at a particular point doesn't mean that you have to fix it by returning that point to it's previous design. In fact, that's likely to merely lead to it breaking in the same spot. And quickly, too, if there are people about who WANT it broken...

So, while I'm sympathetic to the embryonic movement to repeal the 17th, I really think they're approaching this wrong, and some other mechanism for correcting the problem it created needs to be found.

But, CTS, you are correct, in the sense that what divides those of us who think the 17th amendment was a mistake from those of us who think it's the best thing since sliced bread, IS our view of federal power. If we didn't want that power restricted, we'd have little interest in fixing the mechanism that had once accomplished that goal.
 

Shorter Brett:

"Wick-Burn provides both heat and light, at both ends, for federal power!"
 

"the states retained the power to end their careers"

True then and now. Then, the "states" voted via legislatures. Now, directly by the people of each state. The people again voted for the state legislators. So, still had an important role then.

Since the people retained the right to end their careers, senators have to respect the concerns of the people. This includes judicial nominations, which are an issue of senatorial elections. Many voted for Angle because Reid supported judicial nominees with 'wrong' views on the 2A.

So, the 17A did not "abolish" that. Again, putting aside the corruption and so forth that inspired the 17A, I don't see what the amendment "broke." That is, if we look at what actually happened.

"accountable to their respective states and not to their respective political parties"

This seems fictional given modern political realities. It would make more sense to have some sort of non-partisan election under the current system.
 

The direct election of Senators was only part of the Progressive program. They also advocated direct primaries, which were influential in the 1912 election, referendum and recall, an easier way to amend the Constitution, and the ability to override Supreme Court decisions. Their goal was to have a powerful executive, more directly responsible to the people and supported by expert agencies, in lieu of a bought-and-paid-for legislature that served corporate interests and was often logjammed as needed legislation was burdened down with special interest amendments.

This blog has concerned itself with what changes are needed in the Constitution, primarily (and rightly) focused on the undemocratic nature of apportioning the Senate. But it is clear that the initiative and referendum, as well as the expert agencies, have been captured by special interests. I would like to pose the question, what electoral/constitutional changes would address the frustration of today's voters, teapartiers and otherwise, in the same way the progressive reforms addressed the concerns of the middle class and the Socialist Party addressed the concerns of the working class at the turn of the 20th Century? For it is clear that people believe the political system is badly broken, so badly broken that they are willing to grasp at Glenn Beck's ahistorical will-o-the-wisps.

Perhaps one way would be to do away with direct elections and make them more like grand juries -- about 300 anonymous people, selected at random from each constituency, would question the candidates for a maximum of 5 days and then vote. The proceedings would be closed and the electors sequestered, then made public after the release of results. This would immediately reduce the incentive for expensive campaigns and probably change the nature of political parties and eliminate the two-party system. Interest group endorsements would probably become more important.

The point being, it is time to think boldly and out-of-the-box.
 

Is it bold and out-of-the-box for voters to vote their own pocket books rather than those of the very wealthy? If so, why don't they? Perhaps they are influenced by Citizens United, sponsored by the very wealthy under the guise of the First Amendment (SCOTUS 5-4).
 

"True then and now. Then, the "states" voted via legislatures. Now, directly by the people of each state. The people again voted for the state legislators. So, still had an important role then."

True then, false now. The states" are not the "people", and institutional incentives actually MATTER.

The 17th amendment altered institutional incentives in a bad way.
 

"Perhaps one way would be to do away with direct elections and make them more like grand juries -- about 300 anonymous people, selected at random from each constituency, would question the candidates for a maximum of 5 days and then vote."

Still retains the fundamental problem of elective democracy: That the candidates for office chose themselves, and that the least likely person to be morally qualified to have power is the one who wants it.

Why not reach back to the Athenian roots of democracy, and select office holders by lot?
 

Wow, Brett really reaches back well prior to 1787-9 for originalism with this:

"Why not reach back to the Athenian roots of democracy, and select office holders by lot?"

I say, "Beware of overbearing Greeks." Perhaps the Biblical Lot might serve as a better guide. But keep the hemlock (or Prilosec OTC) handy, just in case.
 

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PMS:

No tsunami? As points of historical comparison:

Largest House gains for GOP since 1938 and for any party since 1948.

Largest GOP House majority since 1946.

At the state level, the GOP has its most governors and legislative seats since 1928 and is running nearly all of the midwest for the first time since Reconstruction.

Their Senate win percentage is one of the highest in history. The problem for a senate takeover was that the vast majority of the seats were GOP instead of Dem. That problem will flip to the Dems in 2012.

In sum, a once in a century wipeout.
 

Bart,

Compared to predictions made by many conservative commentators (including a certain citizen pamphleteer), the gains were moderate and changed leadership in only one chamber.

Tsunamis are terrain-altering events. Ringing in the new decade with two years of political gridlock is no tsunami; failing to win the Senate is enough to make historic gains relatively inconsequential. This is more like a very large wave at the end of a set.

Repealing the health care reforms, for example, will be quite a challenge without the Senate and the White House. What a tsunami!
 

True then, false now. The states" are not the "people"

"The states" are entities that include the people. The state legislature is not alone "the state" any more than the people who inhabit it. "The state" is a united group. The only question is who votes its interests: the people directly or indirectly.

institutional incentives actually MATTER.

Right. The 17A was passed because the institutional incentives, as Dilan suggests, mattered negatively. That is, corruption and so forth.

The 17th amendment altered institutional incentives in a bad way.

Such is the claim.

But, the "bad way" you underlined, again, is wrong. You didn't show why the people in the states do not serve as a check. Repeatedly, federal power was blocked because the people voted in representatives, including senators, who blocked it.

And, yet again, who do you think voted for state legislators? Do you think they were some sort of independent actors that didn't act pursuant to the demands of the people who voted for them? Why is such pressure only important in respect to senators/state legislators?

You selectively look at the evidence and then rail against judges who ignore original understanding. Again, this is both not atypical and a tad ironic.
 

Was our former Backpacker's tsunami parted in Colorado? "Buck, Buck, how many fingers have I got up?" And I can't hear the Tancredo Tom-Toms. Why our former Backpacker must be a jinx. It seems the Tea Party reduced OUIs/DWIs in CO, such that our former Backpacker must be relying upon his royalties-advance.
 

To me, this is the most important line:

"Between 1874 and 1912, Congress received 175 petitions from state legislatures calling for direct election of Senators"

The direct election of Senators is simply a natural consequence of Americans' change in attitude from a state-based identity to a national identity. The Reconstruction amendments reflect this shift. It's the old Shelby Foote hypothesis thing - before 1865, everybody said "the United States are", after 1865, everybody says "the United States is..."

The major reason why the 17A thing will not get anywhere is because we, as Americans, don't identify with our State citizenship like we did pre-civil war. Blaming the Amendment on the progressives is missing the forest for the trees - national unity was not solely felt by the Progressive movement.
 

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1484731
 

This is a wonderful post. The things given are unanimous and needs to be appreciated by everyone.
--------
dwilson1707
Law Society Find A Solicitor
 

It's the old Shelby Foote hypothesis thing - before 1865, everybody said "the United States are", after 1865, everybody says "the United States is..."

Shelby's wrong about this, doubly so, in fact. First, it's pretty easy to find counterexamples. Second, he misses the reason for the original usage and subsequent gradual change: from British English to American. Even today, the Brits will say "Manchester United are...". They simply treat group nouns, even if singular, as implied plurals. We did that too when we spoke British, but we gradually moved away from it. There's no political message, it's just grammar.
 

Personally I think that repealing the 17th Amendment would be a mistake, but I agree with many of Mr Zwicky's points. Indirectly elected senators raises a number of problems that I am not sure how to resolve including the fact that partisan politics often lead to problems confirming senators prior to the 17th Amendment.

Perhaps a better approach would be to require that treaties be ratified and judges confirmed not by the Senate but by the governors of the several states. That would restore the separation of powers without leading to the issues that indirect election creates. Maybe we could also allow recent legislation (say, passed within the last three months) to be vetoed if a substantial majority of governors vote for such a veto. For discussion purposes let's say that means a 60% majority required to exercise such a veto.

Would this raise the same concerns in peoples' minds? After all can it be fair that if a state is in a legal battle against the federal government, the judges are those chosen by the federal government without any accountability to the states?
 

Chris, all these "federalism" arguments were made and refuted by Madison and Hamilton at the time of ratification. Yes, it's fair that the federal judiciary decide these disputes -- that's inherent in the Supremacy Clause. And the judges were chosen with input from the states: the Senate confirmed them.

It's bad enough that the Senate is gerrymandered to a 70/1 ratio; we surely don't need to give local interests any more veto power over national concerns. Was Madison just talking to the ether in Federalist 10?
 

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thinkprogress has this headline for a post:

"Scalia Jumps On The Anti-Seventeenth Amendment Bandwagon"

that closes with this:

"It’s puzzling why Scalia, or anyone else for that matter, would suddenly take a swipe at this entirely uncontroversial amendment — although the Wonk Room offers one possible explanation. Before the Seventeenth Amendment was enacted, corporate interest groups were able to lean on state lawmakers and thus effectively buy U.S. Senate seats. In other words, repealing the Seventeenth Amendment 'would be like Citizens United on steroids.'”
 

Ah, yes, it's simply inadmissible that anyone thinks the 17th amendment was a mistake, even in hindsight, and thinks it ought to be repealed for THAT reason. Good faith is only to be found on the left, apparently...
 

Brett with this:

" ... even in hindsight, ... "

continues to look through the wrong end of the telescope to 1913 when the 17th was adopted. (Remember the Athenians above?) What next, a "good faith" reconsideration of the 14th Amendment (adopted only 45 years earlier) by Justice Scalia? Oh for the good old Dred Scott days! How far back in years can such "good faith" go? Perhaps Brett - and Scalia - would re-condemn Copernicus for looking through the proper end. No, the constitutional universe does not revolve around Justices Scalia and Thomas.
 

Mark-

I was not insisting that Foote's hypothesis was an absolute (nor the only cause of the shift) but simply as a statement of the idea of Union. There are a number of contemporaneous examples demonstrating some proponents of the grammatical shift were not just because of some Brit/American difference, but an intentional rhetorical change to emphasize Union. See
http://itre.cis.upenn.edu/~myl/languagelog/archives/002663.html

My point was not that Foote's statement was right, and that in 1865 everybody changed how they spoke, but that following the civil war, the American People's understanding of citizenship and identity was profoundly changed. The grammar is a small, but certainly accurate, reflection of that. So while Foote's contention is certainly overly broad, so is yours - there was, for some at least, a political reason for the change to the singular.
 

Nerp, the site you link seems to support my comment. At least as I read it.
 

Mark-

I disagree. Your claim was:
"There's no political message, it's just grammar."

However, in the author's article he cited a Washington Post column from 1887 claiming the singular change was the result of the war. Contrary to your argument, there were people who felt the change was symbolic of a new nationalism. And even though the author, like yourself, argues Foote's absolutism is wrong, even he acknowledges at the end - while noting how Bierce was wrong on the use of the plural - that while the grammar was heading in that direction, "grammar has more than a speaking acquaintance with politics."

Again, this is kinda a trivial thing. My overarching argument has very little to do with the empirical truth of Foote's truthiness - after the civil war, the US had a national identity that was significantly different, and that change in identity helps to explain why the direct election of Senators became a popular goal, and the federalism-based defense of the original method of selection of Senators fell on deaf ears during the progressive era. Whether or not the language changed overnight is beside the point - but your claim that its all grammar is incorrect.
 

As I read the link, Foote's claim was originally made by others not long after the Civil War, but then rebutted by Foster in 1901.

In any case, the reason I say it was grammar is that Foote doesn't account for the fact that, in the US as opposed to England, all such nouns get a singular verb. In England, all such nouns still get the plural (as they did in the US in the 18th C). If the change had affected only references to the "US", that would be important. A change which affected all nouns equally cannot, IMO, be attributed to the War.

I'm nitpicking to some extent, because I agree with you that the Civil War did change attitudes towards the nation vis a vis the states exactly as you say. I just don't think the verb tense change was caused by that, even if an entirely independent change does reinforce it.
 

PMS_CC:

Tsunamis are terrain-altering events.

Wave elections are simply historically large shifts in partisan representation, with a tsunami being a once in a century level event. Realignments are terrain altering events. See FDR 1932 and Reagan 1980.

We shall see if the 2010 tsunami ends up being a realignment. The GOP is on probation.

The key will be whether the previously Dem leaning white working class continue to vote GOP. Their defection from the Dems was what made 2010 larger than 1994. If the white working class vote has actually realigned, the Dems are only a minority (% not race) urban left party.

This is more like a very large wave at the end of a set.

Agreed. This is the last and largest of four conservative rebellion waves - 1980, 1992-94, 2006-08 and 2010.

Yes, 2006 and 2008 was a conservative rebellion wave. Progressives like to selectively forget that the Dems who just lost their seats ran for election in 06 and 08 as gun totting fiscal hawks cleaning up the GOP profligacy and corruption under a campaign plan devised by Rahm Emanuel. Likewise, Obama ran a campaign promising tax cuts for nearly everyone and a "net spending cut" where he would shrink government to pay for his proposed programs. Of course, 2009 and 2010 demonstrated they were all lying, but the lie worked long enough to get them in power.
 

Shorter former Backpacker:

"Surf's up for Republicans!"

Usually a rising tide lifts all boats. But a tsunami can swamp them. Liberals and progressives will not drown as a result and Republicans have to watch out for the fins that will be circling them as their feet get too close to the water on their surfboards.

But the political weather map suggests the tsunami circumvented Colorado so our former Backpacker continues to tread water wearing water wings.
 

Just was reading something about the repeal of the 18A. A core concern was federalism -- federal control of what is a state concern.

The repeal was the sole use of the convention method. The people, not the state legislatures, were used to ratify an amendment in part in place to protect state power.

In fact, some put forth a general principle -- this included many conservative leaning types -- that popular conventions were constitutionally necessary to change state/federal balance in this fashion.

"Repealing National Prohibition"
by David E. Kyvig.
 

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