The Seventeenth Amendment Is Under Attack By The Right

What is the 17th Amendment?

 The Seventeenth Amendment to the U.S. Constitution:

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

The 17th Amendment removed a firewall of privilege — which is why the Right doesn’t like it

But Does the Amendment  ‘Harm’ the States?

Just after the 2010 election, Justice Antonin Scalia decided to explain the parts of the Constitution he doesn’t like.

“The 17th Amendment has changed things enormously,” Scalia said. “We changed that in a burst of progressivism in 1913, and you can trace the decline of so-called states’ rights throughout the rest of the twentieth century.”

A sinister “burst of progressivism” is unconstitutional — and so, Andrew Napolitano of Fox News insists, is the 17th Amendment itself, because it was added “at the height of the progressive era, when the government started telling us how to live.”

Today, far-right dogma insists that popular election of senators marked the end of their mythical Great Republic. Former Sen. Zell Miller explained that “instead of senators who thoughtfully make up their own minds, as they did during the Senate’s greatest era of Clay, Webster and Calhoun, we now have many senators who are mere cat’s paws for the special interests.” George Will wrote in a 2009 column that “the Framers established election of senators by state legislators, under which system the nation got the Great Triumvirate — Henry Clay, Daniel Webster and John Calhoun — and thrived.”

Did the 17th Amendment in some way harm the states?  The answer depends on what you mean by state. If by “California,” say, you mean the people of California, the answer is clearly no. Senators are still elected by state, and still work hard to represent their states on Capitol Hill. Senators consult with governors and state governments and advocate for their interests on the floor. The state governments maintain effective lobbying presences in Washington, and, as a result, general federal statutes often include provisions exempting state governments from their provisions or permitting state governments a significant say in how federal programs are administered. But the legislators don’t call the shots: senators must closely attend to what their people want if they want re-election. And special interests spend freely to influence elections, but it’s harder to tip a hundred thousand votes than to buy a hundred politicians.

When the far right says the 17th Amendment harmed “the states,” they mean it harmed state governments. But the state governments are not “the state”; they are simply another institutional player in our complex federal scheme.  The “state,” properly considered, is the people of the state. Who is the best judge of the people’s interests — the state legislative majority or the people themselves?

Properly viewed, governments do not have “rights.” A right is a prerogative that an individual can exercise exactly as he wishes. When you exercise your right to free speech, you can say silly things, or smart ones, or you can just keep your mouth shut. You aren’t accountable to anyone for the decision.

How can a state government have “rights” in this sense?  Should state legislators have the “right” not to approve a budget because they don’t feel like it — or, for that matter, not to elect a Senator because it’s just not convenient this year? State governments, like the federal government, have powers, and they derive their just powers from the consent of the governed.  Appropriate state powers are actually protected by the Constitution, and by decisions of the Supreme Court. The federal government can offer incentives to state governments, but it cannot reach down and tell a state legislature what to do. Congress does not send representatives to vote in state legislatures; state governments should have no corresponding right to control Congress.

The popular clamor against the 17th Amendment is worth studying.  It shows that much of the “constitutionalism” being peddled to the people is highly selective, and much of the history that supports it, like Will’s fatuous yearning for the “Great Triumvirate,” is a pseudo-patriotic fable.

The real reason the Scalias, Millers, and Wills of this world favor repeal is simply this: a legislatively appointed Senate could be relied on to block progressive legislation. Left to themselves, those idiot people might have another “burst of progressivism.” Right-wing objections to senatorial election (like so much right-wing “constitutionalism”) are a disguised way of saying they want the Constitution to ensure their side never loses a vote.

To hell with that.

This entry was posted in Congress, disenfranchisement, GOP and tagged , , . Bookmark the permalink.

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