Sunday, March 05, 2006

An Unworthy Legacy to Abide?

Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched. They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I know that age well. [It] was very like the present, but without the experience of the present. [Let] us [not] weakly believe that one generation is not as capable as another of taking care of itself, and of ordering its own affairs.

-Thomas Jefferson, The Portable Thomas Jefferson, 552, 558-61 (M. Peterson ed. 1975).

Cass is hosting what is shaping up to be a real doozy of a conversation regarding the propriety of maintaining the Electoral College as the nation’s vehicle for the election of our Chief Executive. “Grim’s” comment to that discussion regarding the repeal of the Seventeenth Amendment to the U.S. Constitution, however, nudged a sleeping peeve of mine that, rather than clutter Cass’s comments with tangential matters, I'll plop as some Sunday Morning reading here in hopes that it will generate a parallel discussion on representative democracy versus popular rule. To wit, should the United States repeal Clause 1 of the Seventeenth Amendment?

Clause 1 of the Seventeenth Amendment provides

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.

A legacy of Jacksonian populism, the Seventeenth Amendment grew out of decades of wrangling between “progressive” Democrats, such as William Jennings Bryan (who also promoted Prohibition and railed against Darwinism), and “conservative” Republicans, such as Senator George F. Hoar of Massachusetts, and Elihu Root of New York. (See references below at ***.) The Seventeenth Amendment is clearly also the lesser-discussed of this nation’s wide-eyed constitutional blunders (the other being Prohibition). I scanned my two fat volumes of Constitutional Law, and was not surprised to see that nowhere in the combined four thousand pages is there even a mention of this controversial amendment.

In recent years, however, there is growing scholarly debate regarding the repeal of the amendment and the return to the prior system of having state legislatures appoint the federal representatives of that state (an important concept that is routinely overlooked by populist supporters of the amendment). One of the strongest and most independent voices to be heard from the Senate Floor in many years, former Senator Zell Miller of Georgia, declared in no uncertain terms that the Amendment should go, even going so far as to introduce legislation to that effect.

The question being asked is this: Has the Amendment’s goal of uncoupling the corruption of the Senate by monied special interests by providing for direct election of the state’s representatives to the federal government has so succeeded that its benefits outweigh the necessary concession of state authority under the federalist concept of our Constitution?

In my view, it has not, by any measure, so succeeded. But the question is an important one, and deserves healthy debate. As Jefferson said, nothing is constitutionally sacrosanct, and the blunders of our Fathers need not burden the nation forever.

I’ve given you some good stuff to read on a lazy Sunday, so pour yourself a Bloody Mary and get started. I hope I’ll hear how you would answer the question presented. No hurry, though. Right now, we've still got to figure out what to do about the Electoral College. I'll figure a way to put this bit back on the front burner every now and again.

Thanks, Cass, for the forum, and Grim for the inspiration.

***For those of you needing a quick refresher on the history of the amendment, I've located a brief PowerPoint presentation that gives you the bones of the matter. Wikipedia also has a nicely accurate synopsis. You’ll need to look elsewhere for the flesh, and there’s no better article to start with than Democratizing the Constitution: The Failure of the Seventeenth Amendment, by C. H. Hoebeke, (UVA! GO HOOS GO!). You’ll also find a good summary of the arguments for repealing the Seventeenth Amendment in Ralph Rossum's book, Federalism, the Supreme Court and the Seventeenth Amendment, and in his superb lecture The Seventeenth Amendment and the Death of Federalism.


Cricket said...

Well if the mistakes of the Founders need not burden the Republic any more, then I first vote for an amendment to make the Constitution a 'living, breathing document.' Or was that covered in the appropriate Jefferson quote?

spd rdr said...

Well done, Cricket. You've pointed out the enduring discomforture among Federalists (such as myself) who give great homage to the original idea of the Constitution, and yet at the same time argue for the remedy of past mistakes, enacted constitutionally and by popular demand. But I beleive that the Founders intended that the Constitution be a purposefully fluent idea, an one that should reflect the circumstances and convictions of the moment. There remains, however, a significant difference between the lawfully enacted misguidance by "the dead hand" of a popular society generations past, and the uncontrolled, unpopular nature of "a living, breathing constitution" that emanates from the lordly reaches of the Supreme Court. See, e.g. Kelo, Raiche.

Jefferson admonished us each to receive, embrace, and grow the Constitution in a manner that best reflects the current societal circumstances. The mechanics of that covenant, however, require that such change not only reflect immediate popular sentiment, but invlove determined debate and persistant resolve. The Equal Rights and Flag Burning Amendments are prime examples of reacitonary and unsustainable popular sentiment that have failed to find enshrinement in the nation's foundational document. And for good reason.

But, hey, everybody makes mistakes. That is what Jefferson, Madison, and Hamilton meant for us to understand.

1:24 PM

Grim said...

As a Zell Miller Democrat from the Great State of Georgia (originally; currently in VA), I have to admit that my own awareness of the issue comes from that very speech of Sen. Miller's that you mention. I've only been thinking about it that long myself.

But what's a political tradition for, if you can't learn from your predecessors? Senator Miller is mine, and Jefferson was his (through James Jackson and a host of other Georgia Democrats). We can rethink things as we need to do, precisely because of the the tradition of which we are a part.

spd rdr said...

Well said, Grim.

I've been looking for a quote (instead of raking the winter detrious from the gardens) and finally found it.

From Judge Learned Hand, outside of Robert Bork, the most qualified Justice never to serve on the Supreme Court (thank you, Mr. Roosevelt):

"For myself it would be most irksome to be ruled by a bevy of Nine Platonic Guardians, even if I knew how to choose them, which I assuredly do not."
-L. Hand, The Bill of Rights, 73 (1958).

Cricket said...

You know, as I look at this and the one on Cass's blog about the Electoral College, I find myself reading carefully
and have another question: What 'societal concerns' could the Founders
have sought for future generations to
correct? Ferinstance: I don't see that promoting the general welfare is to rob Peter to pay Paul. Kelo vs. New London is a variation on a theme...the little guy gets it in the teeth, courtesy of the feelings of the SC.

spd rdr said...

The absolute brilliance of the Constitution, Cricket, is that, writing more than two hundred years ago, the authors recognized the insignificance of their current circumstances (as famously significant as they proved historically) and sacrificed their hubris to the sense and enlightenment of generations yet to come. So generous is their legacy that we argue over, not the document's substance, but its inuendo, its message, its feel in a world far removed from the dark days of the War of Rebellion. What the Consitution means to "us" is the never-to-be-finshed work of our Republic. How thrilling that we may be part of this living, breathing, heritage.

It's good to be alive, and American.

Cassandra said...

While I don't have time to wade into this, I recommend to you an opinion piece that, ironically, was written by Fritz Hollings, a Democrat who occasionally makes sense, in Feb 19th's WaPo in which he comments:

...almost one-third of a senator's time is spent fundraising. The Senate schedule calls for morning-long committee hearings (which many times extend into the afternoon). In the afternoon, there is debate on the floor and votes. Little time is left for talking to the staff or to constituents, answering mail, phone calls, etc. Every evening there is an average of three receptions or fundraisers, followed by three breakfasts or fundraisers the next morning. A senator has so many committee assignments that there is no way to attend all the functions he or she should. He's constantly asking the staff or a colleague, "What happened?"

The lobbyists don't bother with the senator; they take the staff to lunch. Legislation is not drafted in the Senate but in the law offices. Staffs are queried to make sure the senator is favorably disposed and once there are enough senators so inclined, the measure moves to the party leadership's staff. The next thing you know, the measure is a party position and becomes "must" legislation. Sometimes a senator is on the way to the floor to vote on it, asking his staff, "What's this all about?" and the staff replies, "You're for this, vote 'aye,' or you're against this, vote 'nay.' "
The money crowd has the money, and representatives and senators need the money. But no one wants to touch the reason for the ethical misconduct. Excise the cancer of money, and most of the misconduct will disappear.

You can find it at:

I also, FWIW, happen to think repealing Clause I of the 17th is not a bad idea, but that is not surprising given that I'm such a stick in the mud about the Electoral College.