Wednesday, April 09, 2008

Decline of the Republic Day.

On April 8th in 1913, the 17th Amendment to the Constitution went into effect. To anybody concerned with checks and balances and separation of powers who had actually read the Constitution, it's hard to see how this could be considered a good idea. As a matter of fact, it's hard to see how it could not be seen as undermining the very concept of a federal republic.

I know some of you are clicking for Wikipedia right now, muttering to yourselves "Seventeenth? Is that income tax, or when they let y'all chicks vote? No, it's Prohibition, right?" No, the Seventeenth Amendment is the one that calls for direct election of Senators. What's so bad about that, you ask? (Go on, ask.) Well, let me tell you...

Understand this first: I'm not one of those people who think the Constitution is divinely inspired and the perfect governmental document. However, for setting up a limited federal government with strictly enumerated powers rigidly separated among different branches that acted as brakes on each other, it's really pretty clever. There was a lot of thought put into a careful system of counterweights and oversights, and if you change one bit of it, you can throw something completely unexpected out of kilter. And boy howdy, did the Seventeenth Amendment ever do that in spades.

Firstly, our bicameral legislature originally copied one redeeming feature from the English Parliament. The lower house was composed of representatives directly elected, one per every X number of the population. Because of their (relatively) small constituencies and their two-year terms, representatives had to be very aware of the popular sentiment of "John Q. Public" and respond to it, lest they be replaced. In the English system, the upper house was the House of Lords, with noble members who had a lifetime tenure. Although they couldn't permanently shoot down legislation, they could apply a temporary veto which could be overturned by a determined lower house.

Our upper house was the Senate, whose members served terms three times as long as those of the lower house. Since we had no hereditary nobility (and were prohibited one by the Constitution) each state's two senators were elected by the state government itself. Thus insulated from the constant pressure of needing to worry about re-election and the public whim of the moment, the Senate would serve as a brake against the spasms of popular fads, and prevent asshattery like legislation proclaiming the theme song from Friends as the national anthem or Britney Spears being voted Dictator-for-Life.

The second, even more important, function served by senators, was as representatives of their state or commonwealth government to the federal government in Washington. Whereas a representative from Dubuque or Des Moines would be voting the whims of their respective constituencies, the senator from Iowa was expected to represent the sovereign interests of the Hawkeye State. This has very specific effects on the separation of powers in the U.S. Constitution.

One of the most telling effects comes from the fact that the Constitution specifically delegates the power to ratify treaties to the Senate. This is important both in the nature of our federal system of government and in the nature of foreign treaties at the time the Constitution was written. In the late 18th Century there were no treaties designating United Nations World Heritage Sites or allowable levels of CFC emissions. Treaties involved war and peace, mutual defense, and the setting of national boundaries. By giving the Senate the power to ratify treaties, this was implicitly acknowledging the sovereignty of the individual states. A mutual defense pact with Absurdistan could not be entered into without at least a majority of the states feeling that they had sufficient ties to Absurdistan to make it worth defending. Likewise for treaties setting borders or ending wars; approval by the Senate was the de facto shorthand means of gaining the approval of every statehouse in the federation.

Once senators became directly elected, it effectively demolished the reasons for a bicameral legislature and the division of powers enumerated in the Constitution. The senator was now removed from his or her lofty perch and made as much a weathervane of the public whim as the representative. Further, the senator from certain states, those dominated by a single large city, no longer represented the interests of the state, but rather those of the small portion of the state in which the majority of the populace was concentrated. The Senate, originally a legislative buffer against the popular whim of the moment and the inexorable demographics of urban centers that dominate the House of Representatives, now became the very same thing it was meant to counterbalance, but with a six-year term instead of a two-year one.

In the years since 1913, the effect has become all too obvious. Treaties are ratified based on pressure from the media, not their agreeability to the sovereign states that are bound by them. There is no longer a legislative brake on popular fads or the whim of the moment. We've bounced from New Deal to New Frontier to Great Society to everything short of the Great Leap Forward. Commentators can make mouth noises about "We're not a democracy, we're a Federal Republic" all they want, wingnuts and moonbats can natter about wimmen voters and the Electoral College 'til the cows come home, but this nation became a democracy, for good or ill, with the passage of the Seventeenth Amendment. And we all know what the apocryphal quote says about democracies:
A democracy cannot exist as a permanent form of government. It can only exist until the voters discover that they can vote themselves largesse from the public treasury.


J. Sullivan said...

Great essay Tam.

Pop said...

Hi, Tam;
I'm glad you posted this; I was totally unaware of this entire situation. I guess 'history' and 'government' in high school let me down...

Anonymous said...

Bingo... You hit it right on the head. JimB

Earl said...

And I was sure it was when dueling was outlawed that the country went to the dogs...

Nice lesson, thanks.

Don said...

How'd you get so smart? I figured this was going to be snark about Ashton Kutcher getting caught doing Britney Spears' au pair or something.

Anonymous said...

Oh, where have you been all this time?!! FINALLY someone else who agrees wtih me on what to most Americans is a totally obscure point of governmental structure.

It was probably 40 years ago when I was hit on the head with that little piece of enlightenment and it has been a thorn in my side ever since.

Tam, you've made my day.

Tango Juliet said...

Yet more food for thought from Tam.

Fuzzy Curmudgeon said...

Pretty much every amendment since the 10th is teh sux0r. I'll grant dispensation to the 11th through the 14th, and to the 27th.

The rest we could probably have done without. The 15th should have been self-evident; the 16th and 17th should have resulted in rioting in the streets and the burning of Washington, D.C.; and the balance just plain suck, including the 26th. Just because you can be drafted at 18 doesn't mean you're smart enough to vote at that age.

The 27th is unusual because it was originally proposed in 1789...and wasn't ratified until 1992. And it makes good sense. Thus my dispensation.

Earl, FWIW, duelling is not unconstitutional -- it's just against the law. All we need to do is repeal the law :)

Anonymous said...

Excellent essay. Job well done.

All The Best,
Frank W. James

Anonymous said...

Very nicely put...I've been railing about this for decades, but no one seems to understand the point I've tried to make about the Senate formerly acting as a damper on popular "movements". Direct election of senators has been a disaster for the republic.

Anonymous said...

Tam, That is the most succinct and accurate discussion of the 17th A, Republics, and democracies I've ever read. Thank you.


Anonymous said...

Don Gwinn said...
How'd you get so smart?

I'll bite..... ....ummm, "Read a book. Repeat as necessary."?

Good stuff, Tam.

I've heard the failure of Democracy thing attributed to one Alcibaides of ancient Greece.... no matter, it holds true, whether it was said by a learned sage or Charlie frakin' Brown: A diamond is a diamond, whether it's in a Borsheim's Burgundy Box or a brown paper sack.

breda said...

this is writers' block?

Jeffro said...

I couldn't agree more. Very good essay.

Kevin said...

One word: "Amen."

Anonymous said...

Hey, Tam, you da man!

Rob K said...

Well written. I noticed that myself about the 17th amendment 10 or 12 years ago.

So, how do we get it repealed?

Slightly off topic, one thing I've noted about the 16th amendment-- if it didn't redistribute wealth from the fewer, more populated states (e.g. NY, CA) to the less populated states in the form of highway subsidies, farm subsidies, etc, it would be gone like an icicle in hell.

GeorgeH said...

It was the beginning of the end.

By the way, the House of Lords had the absolute power to block legislation till about 1911 when the Liberal Party overturned it.

The Raving Prophet said...

Don't forget that the Senators themselves have NEVER forgotten that they are the American equivalent to the House of Lords. No, they ignore that they are now a glorified version of the House of Representatives, and they act like they are the nobles of old.

About the only thing they've restrained themselves from doing is codifying the old jus primae noctis.

Anonymous said...

Because I am a professional historian, I frequently get bent with amateurs.

Not in this case.

Spot on, and very well done. I'm somewhat uncomfortable with the elitism involved, but the essentialness of the checks-and-balances involved override that. However, I do not think we are ever going to see the situation reversed.

the pawnbroker said...

okay, so writing about what think and know is at least as special as what you think and do...beautiful, cogent 3 frickin' a.m.?

i prefer to try to recollect points instead of callin' up ol' google all the time, so i'll ask you...

didn't carpetbaggers play into this passage? if the senators were to advocate for the (national interests) of the home state, what method could ensure which home state they advocated, since the state governments had become concentrated self-interests themselves, as they were riddled with carpetbaggers too (esp. in the south; in the 40-50 years after the CW the vacuum in southern statehouses sucked in a lot of riff raff with a lot of agenda)?

so popular election of senators was seen as the method of returning more say-so to you say, not the best outcome when commoners have a hand on the pursestrings of the treasury, but was it better for outside vested interests to vote their proxies?

yes, on a national scale, it would have been better to leave it alone to improve through attrition...the original document was imperfect, and the first amendments were clarifiers...then after a point it was more about attempts to usurp the amazing insight and enlightened self interest that those framers embodied...

leave well enough alone...wise words then and now...jtc

Anonymous said...

It got changed as part of the "progressive" movement ... mostly a reaction against the political machines running some states.

The idea was to get the local machines out of the Senator appointing business ... but making them elected was an extreme over-reaction.

Unknown said...

Thank you for that! I was not aware of this due to my publik edjookasun.

John B said...

any senator who votes for the FRIENDS theme to be made into the national anthem will suffer a legal assault upon his wealth. I keep Rottweilers in my house, and lawyers out in the dog run, check my loveslaughinglocksmith that is a good story....

though I think the lowest populated state should adopt the CHEERS theme as it's state song....

Washington State's theme should be THE WALL.
"We don't need no Education!!!!!"

Anonymous said...

I have a different take on this.


* The extreme computerized gerrymandering of state legislative districts means that most state legislators are elected in the primary of the party that owns the district.

* ... which means they are generally more extreme, i.e. far from the median voter.

* ... which means that the majority of the state legislature is from the extremes of one party.

* ... and so direct election of senators will result in senators voting closer to the average voter from the state.

So, even though it was a bad idea when ratified, the 17th amendment may give us a better government under current (highly gerrymandered) conditions.


perlhaqr said...

I've long felt the same way about the 17th Amendment, but never expressed it as well as you have here.

Drang said...

Three thoughts:
1) Keep this up and there'll be a Draft Tamara For President movement.
2) And if this is Writer's Block, where do I get me some?
3) What are your thoughts on the Electoral COllege?

Ken said...

+1 to kristopher. The Progressives characterized some of the state legislatures as being in thrall to various trusts. Proving that even a blind squirrel finds an acorn now and again, they appear in at least some cases to have been right.

However, I do not think we are ever going to see the situation reversed.

Probably not. There are, in fact, only two ways it would be reversed: Constitutional convention (I've been willing to roll the dice on that one for a few years now), or something far less desirable and pleasant.

Jeffro said...

Thought this was apropos, considering the timing:

“I’d rather play a senator than be one.” Charlton Heston

Armed Texan said...

Amen Tam. This is the first time I've read your blog (as a suggestion from Google Reader) and you hit on a topic that I've given a lot of thought to, despite my publik edukashun. Repealing the 17th and 16th amendments would go a long way in fixing our federal government.

Anonymous said...

Talk about Singing for our Supper!!!!

You couldn't be more right, or more eloquent, about how messed up our system has become. (Y'all been takin lessons from Marko?)

Rick R

I think it was Voltaire who said " The best form of government is democracy tempered with assassination."

Word verification jbwuzef: John Browning would understand zero effort firearms.

Anonymous said...

Remember, ex-Sen. Zell Miller (D-GA) dropped a bill in 2004 to repeal the 17th Amendment. It got one sponsor--him--before it died at the end of the Congressional session that year. His arguments for the bill were the exact same ones you espouse.

For that one act, he wins my award for the best Democratic Senator of the last quarter-century. --PB, Arlington, Va.

jdege said...

We passed three stupid amendments in a row - the 16, the 17th, and the 18th.

To date, we've repealed only one of them.

The other two both have to go.

Anonymous said...

Bravo! I've been thinking that the 17th is one of the worst Amendments for some time now, but this essay explains it better than I could have.

Now if we could just get a few million people print it out, mail it to State rep's and senators en masse, and ask for a new Convention to repeal..

Anonymous said...

For a strong visual impression of the effect of the 17th:
1) go to a law library
2) find the shelves with the "U.S. Statutes at Large"
3) take note of the dividing line between the volumes covering the ~124 years prior to the 17th and the ~95 years after
4) note _huge_ imbalance.
5) find the _rows_ of shelving dedicated to the "Federal Register" (essentially law)
6) note that it came into existence in the 1930's

If that isn't enough to convince you that the 17th was a (very) bad idea then nothing will.

Stan said...

Though I'll admit flaws and serious flaws with direct elections, I could not disagree more.

That'd be all we need, more elected officials unaccountable to the people directly.

Anonymous said...

Excellent essay, Tam.

It's been said that a monarcy is tyranny by one, an oligarchy is tyranny by a few, and a democracy is tyranny by the majority. In our present Congress, we can see this coming true each and every day.

Tam said...

"Though I'll admit flaws and serious flaws with direct elections, I could not disagree more.

That'd be all we need, more elected officials unaccountable to the people directly.

The thing to do then would have been to either abolish the Senate entirely and roll its duties into the House and the Executive. Or write a more comprehensive amendment saying "Senators shall be directly elected, and because of this, the powers granted the Senate are altered thusly..."

You can't just change one thing and expect the rest of the system to remain the same and function right. The Constitution was written with statehouse-elected Senators in mind. You might as well swap the propeller engine on a Cessna with a jet and then wonder why the plane doesn't fly when you've left everything else intact...

The Vegas Art Guy said...

You also have to remember WHY it was proposed and ratified.

Corruption on a massive scale. While I'm not thrilled with this amendment you still have to remember how hard it is to get a senator kicked out of office. The fact that it's a six year term means that they have plenty of time to recover from any missteps.

It was a very informative and enjoyable read either way and certainly made me think.

Stan said...

The thing to do then would have been to either abolish the Senate entirely and roll its duties into the House and the Executive. Or write a more comprehensive amendment saying "Senators shall be directly elected, and because of this, the powers granted the Senate are altered thusly..."

Um no. Simply changing the manner in which Senators are elected does not change nor obstruct their constitutional roles. They still are elected very differently from House representatives... At large, every six years, in three classes... Tell how a direct election fundamentally corrupts the nature of the role of a Senator.

Here's the problem with your argument: you don't like who the people elect so you want to change the constitution. Why don't we just change the people? That'd be a much more legitimate and worthy objective in a free society, wouldn't it?

Engineer-Poet said...

Agree with the skeptics.  As a counterexample to those touting repeal of the 17th as a cure for what ails us, I cite the European Union and its appointed legislature.

If only cutting out the rot was as easy as passing one change and going back to ignoring things....

Anonymous said...

Doesn't the EU have a six-month rotating presidency?

smitty1e said...

Yeah, but the whole seniority racket kinda undermines your argument.
We can expect that dynamic duo, Kennedy and Kerry, to add whatever value it is that they add until they such time as they depart this mortal frame.
It's not even slightly in the interest of the Bay State to vote either of them out.
(I think I filtered out all of the pejoratives)

Tam said...

"You also have to remember WHY it was proposed and ratified.

Corruption on a massive scale.

The more I read on it, the more skeptical I am on that point. That's like saying the 18th Amendment was passed because of drunkenness on a large scale.

"Um no. Simply changing the manner in which Senators are elected does not change nor obstruct their constitutional roles. ..."

Um, yes. For instance I think I pointed out rather clearly that the Senate's power to ratify treaties stems directly from their role as ambassadors to Washington from the several states.

"Here's the problem with your argument: you don't like who the people elect so you want to change the constitution."

I'm not the one who wants the Constitution changed. I'm the one who thinks the Constitution would have been better left alone.

"As a counterexample to those touting repeal of the 17th as a cure for what ails us,"

I don't think it would be a cure for what ails us. I think what ails us is too far gone. We could repeal it tomorrow and the bus is still going off the cliff. "Everybody raise your hands if you think the driver was an idiot when he made that left turn beck there," ain't gonna get us back through the guard rail.

Anonymous said...

A view from Canada... We have an appointed Senate, where members are appointed by the Prime Minister for a lifetime, supposedly to act as a "Sober Second Thought" to the elected House of Commons.

However instead the senate has become a way for the Prime Minister to give his friends a cushy job with a salary supplied by the tax payers.

Senate reform is a recurring issue in Canadian politics, although nothing major has changed since the inception of the country.

Just something to think about, at least you get to kick out your crooked senators out after 6 years!

Ken said...

Just something to think about, at least you get to kick out your crooked senators out after 6 years!

In the states with term limits for state legislators, it is likely that at least we would see some turnover in the venal hacks sent to the U.S. Senate, rather than the same venal hack for 40 years.

Anonymous said...

While I do agree with most of your points I would beg to differ on one issue. I know I will hear outcries about this (As I have since I was thirteen and began expressing this) but I think the major turning point was the civil war.

During the civil war, many powers were removed from the states and given to an increasingly powerful and centralized federal type of government. It is not without reason that before the civil war people referred to these (independent but) United States of America and afterwards as "The" United States of America.

The Federalist papers and many other historical documents warn us about not only the dangers of attempting to turn this nation into a democracy but also of a centralized and all-controlling federal system of government such as we have now.

As for the comments by D W Drang on the Electoral College, it was established as part of the prevention to keep the larger states from having more control in the Limited federal system than the smaller and less densely populated states had.

Rich D said...

Great Essay. This hit the same year the fed was founded. Truly a bad year for America

Anonymous said...

Good thought provoking post.

I wonder how much of a difference it would make in many states however. Living in CT with a Dem super-majority in both state houses, would they be electing different Senators?

I like to think term limits would help with some of the problems in DC, but have nothing strong to base it on.

Anonymous said...

Georgeh said: "By the way, the House of Lords had the absolute power to block legislation till about 1911 when the Liberal Party overturned it."

Another reason to like the 1911 !!!

[not a political statment; just liked the coincidence ;-) ]

NotClauswitz said...

Thanks for this post and starting such a good discussion, I learned a lot. My Americna History lessons were woefully deficient, but the problems seems very indicative in microcosm of California itself and our legislature.

Anonymous said...

Damn good.

parselmouth said...

The problem with many states, as Tam has mentioned is the dominance of urban areas on the rest of the state. In my home state of IL, essentially both senators are elected by Cook County/Chicago.

Cook county accounts for nearly 1/2 of the population of the entire state. Senators elected in IL and similar states don't really represent the entire state, they represent only one or two cities in the entire state. Coupled to this is the vast representation in the House, as well and it leaves the small town and rural population feeling more than a little disenfranchised.

The Founders were wary of democracy because it can easily become tyranny of the majority, hence the delicate balancing of powers between more and less populated entities. The 17th didn't completely break this balance, but it did do it substantial harm.

Tam said...

I see that, while Illinois does have a bicameral legislature, the state senate is elected based on population, too, rather than one per county or one per fixed geographical district.

No wonder y'all are boned; there's no legislative counter to Chicago.

Note that Georgia, while dominated by Atlanta, has a geographically distributed senate, ensuring that small towns and rural areas are represented too.

Anonymous said...


Remember, though, that the real acceleration of the power shift didn't occur until the 17th Amendment passed.

Before then, if a federal law was proposed that would take power from the states, the state legislatures could yank the leash on their federal senators and kill the bill.

That check/balance b/w the states and the feds is gone.

Unknown said...

yes...Wilson was right...unfortunately...