Thursday, June 24, 2010

Repealing the 20th Century

One of the more little noticed ideas being pushed by the Tea Partiers is a proposal to repeal the 17th Amendment to the Constitution. If you are like most Americans, you had to stop just now and think, "OK, which one is that?" I'm an American historian, and I had to. The 17th Amendment, ratified in 1913, changed the way we elect senators. Originally, the Constitution gave state legislatures the power to choose the senators, and the amendment created the current system of direct election by popular vote.

So why do some elements of the Tea Party oppose direct elections for senators? One blog dedicated to the idea calls repeal the "first significant step to remove the domination and unmistakeable corruption deriving from the federal government." The irony here is that that is precisely the reason the 17th Amendment was passed in the first place.

The 17th Amendment was part of the third major wave of revision of the original Constitution. The first was what we call the Bill of Rights, the first ten Amendments. The second was during Reconstruction, which saw the passage of the 13th, 14th and 15th Amendments to abolish slavery, guarantee due process, and extend the right to vote to all adult men. The third wave was part of the larger era of Progressive reform. Four amendments were ratified in the space of seven years. The 16th Amendment established the income tax, the 18th was prohibition, and the 19th guaranteed women the right to vote.

Like the others ratified in the 1910s, the 17th sought to adapt the Constitution to modern times, addressing problems either unforeseen or unappreciated by the founders. In this case, the problem was the inordinate influence of concentrated wealth on politics. Reformers argued that senators no longer were the dispassionate debaters of old, but the servants of the robber barons produced by the industrial revolution. Their election by state legislators was no guarantee of probity in an age in which the financier Jay Gould was said to be guilty of "the wholesale bribery of the New York State legislature."

By the 1890s, it was common knowledge that certain senators were not only serving business interests but were essentially on their payroll. One of the most infamous was Rhode Island Senator Nelson Aldrich, who served the Sugar Trust. In 1894, the New York Times ran an expose that showed the senator had become a multimillionaire (at a time when senators made $5,000 a year) in part due to direct payments from the representatives of the Sugar Trust, whose bidding he did in setting tariff rates.

For progressive reformers, the solution to this rampant corruption was to make the senators directly answerable to the people, thus producing the 17th Amendment.

Modern day reformers want to fix today's much milder corruption by returning to the state of things that produced far greater corruption in the past.

There is another element to the desire for repeal. Much Tea Party rhetoric calls for a return to the original Constitution, and certainly repeal of the 17th Amendment fits nicely with that goal. But it goes beyond that--it reflects a desire to roll back the larger growth of federal power. According to a New York Times article, the "basic argument is that the amendment effectively eliminated the only real oversight that state legislatures had over Washington, which in turn has encouraged Washington to pile unfunded mandates onto the states."

The assertion that the founders intended the election mechanism to protect states rights has some historical basis. James Madison made that argument during the ratification debate, saying that the direct election of senators would create a consolidated government. But Noah Webster, also arguing for the Constitution, made the opposite argument and said that the Senate would be where "we may find the general good the object of legislation" and that senators would "act impartially for the whole collective body of the United States." And Alexander Hamilton wrote in Federalist 27 that since they would be chosen by "State Legislatures, which are select bodies of men," senators "will be less apt to be tainted by the spirit of faction." In other words, they would be independent actors rather than anyone's servant (Hamilton was no great fan of state power).

There was also some concern for the anti-democratic potential of the senate. The Antifederalist Samuel Bryan noted that a senate chosen by state legislators "will be composed of the better sort, the well born." He warned that a senate so chosen might, in conjunction with the president, create "a permanent ARISTOCRACY." The state of New York, concerned about that potential, proposed that the Constitution be revised to allow for the recall of senators by state legislatures and limiting any one person to serving only six out of any twelve years. In this case, as in just about every other one, there is no single "original intent."

Some of the people calling for repeal seem not at all concerned about creating a less responsive senate--rather, that is what they want. A Republican state senator in Utah who is pushing for repeal says: "Direct democracy is the worst form of government possible because it relies on 60-second sound bites and the ability of the ad firm that can best make an impression on the voters." It's amazing to me that anyone could call direct democracy "the worst form of government possible" after the totalitarianism of Hitler, Stalin and Pol Pot. Nonetheless, it is a telling statement. Like reformers of old, today's proponents of repeal are attempting to deal with new forms of corruption or the perceived distortion of the system through a change in governmental process.

Tinkering with process is what we Americans do. The entire debate over the Constitution was about which process would produce the best results. (See also California's recent decision to change its primary elections to a non-partisan "top two" system). But there is no reason to think that repealing the 17th Amendment will serve of any of the goals of its advocates. Corruption of the political system is an ever-present problem whose real solution is public vigilance. The growth of federal power over the last century was due to large historical forces, not the 17th Amendment. You can, in theory, repeal the 17th Amendment, but you can't repeal the 20th century. The answer is not to return to the 19th century, but to move forward with new answers to new problems. But all the Tea Party seems to do is look back.

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