I have read alot about the 17th amendment and it’s repeal. I use to support it’s repeal as a valid form of decentralization but I am just not so certain anymore. I was reading the legislative history of the United States Congress leading up to passage of the 17th and it seems like the Senate did not act as a defender of limited federal power. For instance the Sherman anti trust act was passed, the pure food and drug act, the interstate commerce comission, the Erdman act etc etc. Also the National Bank and the Alien and Sedition act were passed when the senate was new and overwhelmingly elected by the state legislatures. Not to mention the Federalist party still was able to get it’s share of the federal budget sent back to their states for local projects. That being said alot of the legislation before the 17th amendment that I mention above dealt with things that are interstate not intrastate and left much of the internal policies of the state alone. But still this was a centralization of power that seems to contradict the current idea amongst libertarians that repeal would help in limiting the growth of the federal government. At this time it seemed the Supreme Court did a better job limiting Federal power then the Senate as the court struck down or handicapped most of the legislation mentioned above. Is there something I am overlooking or not seeing here? It seems to me that most of the current constitutional crisis in the United States comes from the New Deal and the 16th amendment not the 17th. I would appreciate your thoughts on this topic.
I think you’re looking at it too directly. No change is going to get the Senate to act as a defender of limited federal power. Prior to the seventeenth amendment the Senate acted as a defender of state power. The presumption being that the states would tend to act as a check on the federal government. Sometimes it worked and sometimes it didn’t. Now the check is gone altogether. The fact that they saw fit to do away with the check suggests that it must have been some impediment to them.
The elimination of the “previous question” in the Senate in 1806 is as much responsible for the Senate’s “impeding” behavior as anything. For many years in the Senator, one Senator could keep the Senate tied up in knots. What is often lost in the shuffle is that the cloture rule was first adopted in 1917, shortly after the adoption of the 17th Amendment. That rule required a two thirds majority to invoke cloture, later lowered to three fifths in the early 1970’s. Until 1917, there was no way at all to stop debate in the Senate.
Which leaves a very interesting thought. If the progressives come to power in November, which I think highly likely, it could result in a paradigm shift of power. Assume for this scenerio that Obama wins, Democrats pick up 20 to 40 seats in the House and 8 in the Senate, and that figure is an excellent possibility by my projections. It would result in a progressive President, a House with a solid progressive majority and a Senate where progressives would be exactly one seat short of invoking cloture. The first time one of their little programs is blocked by a Senate filibuster, I think they will go to the “nuclear” option, essentially using a parliamentary maneuver to change the rules of the Senate to allow a plurality to invoke cloture, and then formally changing the Senate rules to bring back the “previous question”. This would essentially allow the Senate to slam through legislation as fast as the House. The last check against overweening government will be gone.
I actually support repeal of the seventeenth amendment, however, in the long run the Senate’s arcane rules are much more significant in judging its past and present actions.
Those are both good points. The supreme court was meant to enforce constitutionality after legislation had filtered through the house of reps, then the senate (council of states), and then the quasi federal quasi national president. After taking a second and more detailed look at the legislative period I mentioned above the system worked relatively well. It prevented going in the level of centralization we have now at least. Of course it did not work perfectly but as long as states had a say (and all the other elements) there was always room for correction, which did happen frequently in the next senate election when state governments angry at their senator’s votes would kick them out of office and demand new legislation. Sometimes since a senator’s term is six years the supreme court got to the legislation before the state’s could elect new senators to form a new coalition to overturn the legislation. All in all it did work along the lines the Founders wanted.
Also the Senate would pass legislation but would deny it enforcement power so it would essentially nullify the unconstitutional bill and it did this on several occassions notably the Interstate commerce commission and the Edman act. This angered some members of the House of reps sometimes but they begrudingly gave in and compromised with the Senate. Thereafter the Supreme Court (with appointments approved by the senate) would simply nullify outright or take the remaining few teeth completely out of the legislation as it did with the Interstate Commerce Commission, Sherman Anti-trust act, and Erdman act. These programs existed on paper but in reality were paper tigers. They did not get real enforcement power until after the 17th amendment when senators had no incentive to weaken federal legislation anymore and they started to pass legislation RIGHT after the 17th to give these essentially fake federal programs real power. Just check the details it is all there.
That being said even if some super socialistic federal program did come about in this scenario it would still be nice to have the state governments have some sort of oversight ability on Federal programs and maybe demand diversity and more flexibility from these programs.
For instance the Erdman Act established a weak form of voluntary arbitration that could only be binding on the employers and unions engaged in interstate commerce that both agreed to it’s use. On top of that it’s enforcement powers were VERY weak though it did demand that employers who used it’s arbitration courts could not use “yellow dog” contracts with it’s employees. The Court struck the whole act down because they believed it was one sided and was against the fifth amendment.
The Interstate Commerce Commission was explicitly denied authority in it’s own founding legislation to enforce on it’s own and the Supreme Court said it could not set rates on it’s own either thereby leaving a nearly hollow threat totally hollow.
Last but not least the Sherman Antitrust Act. This legislation only dealt with monopolies in interstate commerce and was intentionally very vague and with much room for exceptions and exemptions (it was later near to post 17th amendment legislation that clarified and got rid of the “loopholes” to this bill). The Supreme court then saved whole sections of the economy (manufacturing, labor, agriculture) from potentially being touched by an already limited bill.
Now as far as the Pure Food and drug act and meat inspection act it is worth pointing out that more and more Senators were being directly elected in their own states before the 17th was passed which must of had an effect on the changing nature of the senate. On top of that these were acts that had much mass hysteria behind them so it is possible the overwhelming majority of society thought they were very needed. The fact is though a certain number of states would still of had oversight on the implementation of this program through the senate though that was not to last. It is possible that if the senate somehow was dominated again by state appointed Senators this legislation could have been overturned. Also these acts once again only applied to Interstate commerce not intrastate commerce.
Well, while I know Neal Boortz is a “Fair Tax”-supporting neoconservative, he put forth an interesting argument for abolishing the 17th Amendment in Sombody Gotta Say It. He points out that since the United States of America was originally a confederacy, having direct election of senators would be analagous to having direct election of the UN Ambassador. He says, for example, that the Utah senators should be similar to Utah’s “ambassadors” to the United States.
Appointment of Senators would probably not keep the federal government in check any better than direct election. Suppose that the legislatures of the northern states decide that they would like to impose tariffs and build internal improvements benefiting the northern region of the country at the expense of the southern states. They can appoint Senators who are willing to do that. This happened in the 1800s.
Also, if the people are ideologically socialist, they will tend to elect socialist state legislators who will in turn appoint U.S. Senators favoring socialism. For instance, suppose that a state legislature wants to impose a minimum wage, but knows that if it adopts such a state law unilaterally, industry will flock to other states, where labor is cheaper. Will it not seek to appoint U.S. Senators who favor a federal minimum wage?
The only times appointment of Senators works to our advantage are when the people are statist and their representatives support liberty. But there are times when the situation is reversed. For instance, the majority of Americans favor allowing medical cannabis, but the U.S. Congress opposes this reform.
In short, I think repealing the 17th Amendment is unlikely to advance our cause. The case might be different if our state legislators were more economically literate or supportive of freedom than the general public, but I’m not sure this is so.