The Notorious Seventeenth

Setting aside any issues of taxation, one cornerstone of U.S. political failure can be readily identified in the Seventeenth Amendment.

This amendment, which provides for the statewide popular election of U.S. Senators, is what I submit to be a watershed in U.S. political, governmental, and constitutional history.  The day the seventeenth amendment was ratified marked a fundamental shift in the orientation of power in the federal government of the United States.

In order to completely comprehend the ramifications of the seventeenth, one must go back to the beginning.

What they don't teach in school these days is that the government of the United States is not a democracy, but is in fact a federation of constituent states.  The reason for oversight is simple enough: for the majority of the living generations, the government has always been as it presently is.  As such, the familiarity with the present arrangement leads inevitably to habit, from habit to complacency, and then from there to ignorance.  Adding fuel to those flames of said ignorance is the contemporary, nonsensical belief among educators that if a teacher is trained right, they can teach anything--though I would amend to that "even if they have no particular knowledge of the subject beyond a superficial familiarity and a handy outline written by someone else."  Of course, my qualification of that belief by educators reveals the nonsense of it.

So, what exactly does that have to do with anything?  Well, understanding what the government truly is facilitates a direct understanding of the rationality and reasoning behind its pre-Seventeenth structure and the upset of the balance that came from trying to tinker with that arrangement.  As Thomas DiLorenzo pointed out at LewRockwell.com, it was the Congress's decision to tinker with this balance of power right after the Civil War which ultimately placed federalism on the sacrificial alter of democracy.

The U.S. did not start out as one nation. It was, in fact, 13 separate and distinct sovereignties.  Consequently, one of the first actions of King George's court after the Treaty of Paris in 1783 was to appoint 13 ambassadors: one for each new country.  Whereas the 13 colonies had confederated by that point, each state retained "its sovereignty, freedom, and independence," as per the Articles of Confederation.

While the Constitution altered that confederation to an extent, it still maintained the importance of state governments in the newly instituted U.S. Senate.  The initial arrangement was one of popular legislation in the House, and one of jurisdictional, legal, and principally reasoned law in the Senate.  Thus, the characterization of the Senate by George Washington as a place to cool the passions of the people was apt when he imparted it to Thomas Jefferson, so the myth goes.  But we shouldn't stop there in our analysis of the Senate.

The practicality of the Senate in terms of the federation was one of an outlet for the state governments to maintain a degree of control over the federal government on terms of federal jurisdiction versus state sovereignty, and to what degree the two met, interacted, or intermingled.  One need only think about the implications of what direct representation of the state governments, via their senators, meant.  Before the seventeenth, the state governments had:

1) a vote over legislation that could potentially curtail a state's locally-created policies and programs; (e.g., the drinking age in South Dakota)

2) a vote over legislation that could potentially invite federal invasions of a state's jurisdictional control over a given topic; (e.g., the federal government's use of the interstate commerce clause to regulate any and all local activity which might merely affect interstate commerce)

3) a vote on the extent of the federal budget, the political strings attached to any federal spending, and on unfunded federal programs; (I maintain unfunded mandates cannot exist without the support of the seventeenth amendment)

4) a vote over treaties that might potentially repeal a state's laws; (e.g., how NAFTA once threatened to overturn California's ban on MTBE)

5) a vote of approval, by advice and consent, over the federal officers that would enforce federal laws and treaties; and,

6) a vote over the confirmation of federal judges who would both interpret the scope of federal laws and treaties, and rule on the constitutionality of such measures versus the sovereignty of the states.

One can clearly see just how much power over their own destinies the state governments ceded to the federal government as a consequence of the seventeenth amendment.  One could easily consider those powers to have been classified as those sacred instruments of American jurisprudence: checks and balances, albeit of the states over the federal government.  If only they had known...

Calls for the repeal of the seventeenth, such as DiLorenzo's, and of former Senator Zell Miller of Georgia, are wise, but they do nothing to address what is comprehensively needed in terms of Senate reform.  There are several other factors to address beyond just going back to a constitutional square-one.

Therefore, I submit the following outline for what a repeal of the seventeenth should entail:

1) An explicit statement of repeal of the seventeenth amendment.

2) A reduction in the size of the Senate: one state, one vote.  There's no reason to have two senators from each state, especially with the further reforms I propose below.  Also, any state with two senators of opposite party affiliation who consistently vote against each other effectively negates that state's say in any legislative deliberation.

3) An elimination of the six-year tenure of senators.  A senator should serve his constituent state legislature as long it approves of his continuance in office.  (Before anyone objects, keep reading, please...)  Additionally, if a state legislature believes in term limits, they can restrict their own choices in-house.

4) A plenary power of recall by the state legislature.  If a senator refuses to be accountable to his state legislature, it should have the complete power to remove him from office.  This is exactly equivalent to the President's ability to fire federal executive branch officers he believes cannot effectively carry out the responsibilities they hold.  The other benefit of this power of recall would appear at times when the state legislature changes hands from one party to another.  With a new majority holding the power of recall, they will not be stuck with their predecessors' appointment for the next two to six years.

5) A complete power for the state legislature as to how they appoint their Senator.  It is essential here to overrule Article I, Section 4, clause 1 of the Constitution as it was the avenue that inevitably lead to the seventeenth, as DiLorenzo explained in the above cited article.  Provided, however, that it is only the state legislature who selects the senator, and not a simple rubber stamping of the popular vote, as Oregon began in 1906.  It is vital here to realize that the senator need be accountable not to the people, but to the state legislature he represents; the legislature itself will be accountable to the people.

6) A power of the state executive to appoint a senator, after a certain reasonable period, in instances where the state legislature cannot come to a choice under its own rules.  The beauty of this contingency power would be that the Senate seat is not left vacant, and that the state legislature would still have a veto over the governor's appointment with their plenary power of recall.  Thus, if the governor makes an appointment with which the legislature does not agree, the senator will not be seated.

7) A removal of the source of salary payments for Senators away from the U.S. Treasury and redirected toward their state treasuries.  This reform is just to make it explicitly clear exactly for whom the senators are working.  It also removes one half of the congressional conflict of interest which arises from allowing Congress to set its own pay, the twenty-seventh amendment notwithstanding.

8) Finally, a provision for the transition of these reforms is needed.  Since the senators elected under the seventeenth are entitled to serve their six year term, I would suggest a provision that eliminates further popular election of senators while at the same time providing state legislature the ability to appoint a number of senators to a limit of where number of elected Senators plus selected Senators equals two, until the last popularly elected Senator either leaves office or finishes his tenure. At that point, the transitionary provision would become dead letter law.

Only such a system of reform can effectively return and fortify the system of federal checks and balances our founders envisioned, to include the checks and balances of the states over the federal government.