New Patch on Old Cloth?

October 30, 2010

(Or do I just want to teach an old dog an old trick?)

The Constitution originally provided that, while the members of the House of Representatives would be elected directly by the people, members of the Senate would be chosen by state legislatures.  This part of the Constitution remained unchanged for most of our country’s history.  Then, about a hundred years ago, the Seventeenth Amendment made senators directly elected, like congressmen.

I remember getting the impression, from high-school history class, that this was just part of the (perhaps inexorable) march of progress, the perfecting of our democracy—as our more enlightened age gradually succeeded a more benighted one, we threw off old prejudices against the masses and made our system that much more democratic, perhaps fulfilling the ideal that our imperfect, culturally blinkered forefathers had nonetheless pointed us toward.

From the Wikipedia article on the history of the Seventeenth Amendment, one could be forgiven for getting the impression that it was all about corruption—it’s easier to bribe the members of a small state legislature, but difficult to bribe the entire electorate of a state, and so the amendment solved the (widespread?) problem of buying senate seats.

One explanation for the original provision that I never heard until law school is that it may have been an important, carefully considered part of the larger constitutional system of checks and balances.  We all learned in elementary school that there are three branches of government—the legislature, the executive, and the judiciary—and we may have learned that part of the theory behind this separation of powers was that it prevented the concentration of too much power in too few hands.  Our system in some measure sets the branches against each other; thus, men’s tendency to expand the scope of their own power, instead of resulting in an increasingly powerful and tyrannous govenrment, makes the different parts of the government strive to limit each other.  As Number 51 of the Federalist Papers puts it, “Ambition must be made to counteract ambition.”

This is also that same Federalist which gives us (in the same paragraph) these excellent observations:

It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

Three paragraphs later, the author makes it explicit that this theory of checks and balances applies not only to the three branches, but also to the separation of powers between the federal government and the states:

In the compound republic of America, the power surrendered by the people is first divided between two distinct governments [state and federal], and then the portion allotted to each subdivided among distinct and separate departments [the three branches].

On this theory, the Senate is not just a more deliberative (as opposed to representative) legislative body, and certainly not an arbitrarily less democratic one, but a real way for the states to protect their interests against encroachments by the federal government.  Think about it:  Now that we have direct election of senators, what means do the states have to check the federal government?  Suing in court every time Congress does something unconstitutional?  Good luck!

And indeed, since the Seventeenth Amendment was passed (1913), the federal government has grown out of control, whether you want a quantitative measure or a theoretical one:  The “commerce clause”—one of the few, enumerated powers of Congress in the Constitution (“The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”)—was originally supposed to mean things like preventing states from enacting protectionist tariffs on “imports” from other states, but nowadays is interpreted to mean that Congress can do pretty much whatever it wants.

Interpreted by whom?  Well, by the courts, but I don’t think that’s the main problem; is it practical or even possible for the judiciary to decide the exact contours of Congress’s commerce-clause power through the resolution of individual court cases?  Congress and presidents also tend to interpret the commerce clause to mean anything goes—and yes, I think that is a dereliction of the oath they all had to take to uphold the Constitution, as far as that goes—but how much can we blame them?  We’ve known for centuries that they were apt to expand the scope of their own power as much as they could; that’s why we made the Constitution in the first place.

So I think we need a structural safeguard, rather than a legal one, if that’s the right way to say it.  I don’t think Washington would be dictating education policy, welfare policy, etc. to the states if they once again had some meaningful check on federal legislation.

Actually, to the extent that the purpose of having senators chosen by state legislatures was to let the states protect themselves against Washington, I don’t know whether any amount of bribery and corruption would defeat that goal—it might be unfair that the rich and well-connected and unscrupulous got all the Senate seats (by buying them), but those spoiled senators would still make sure to vote in a way that wouldn’t annoy the state legislatures they had just bought off, thus fulfilling their purpose—but no one likes corruption, and anyway I doubt the electorate would be receptive to repealing something like the Seventeenth Amendment

So instead, I think we should try a new amendment, offering a new way for states to check the national government.  Perhaps existing offices (such as state governors and state legislators) could be given a new power to veto legislation otherwise adequately supported by Congress and the president—for example, a majority of (majorities of) state legislatures, or a majority of state governors, might be enough to veto a bill passed by both houses of Congress, unless they passed it again with two-thirds supermajorities, just as they would have to do to overcome a presidential veto.  If that makes the veto seem too easy to achieve, perhaps a majority of both together could be required—that is, there are fifty state governors, and fifty state legislatures (counting both houses, in a bicameral state, as a single legislature for purposes of this discussion, because I’m just sketching out the basics of the idea); perhaps it would take a majority, any fifty-one, of those hundred entities to effect this veto (which, I think, might make it fairly difficult to get, but not impossible).

Because governors and state legislators already have plenty of business to occupy them, I’m sure, the veto could be entirely optional on their part—they would not have to ratify or sign a bill that comes out of Congress, as the president must do, but would be allowed a reasonable amount of time after passage to exercise their collective veto, if they actively chose to do so.

Of course, to the extent that this would add another layer or hurdle to the already (intentionally) complex and difficult process of passing federal legislation, it might to some extent fossilize the law where it happens to be at this moment in history—in which the national government has grown out of control—and thus be self-defeating.  That is, Congress wouldn’t be likely to initiate bills that constricted its own power, and the new state veto would at best only be able to limit further expansions of federal power from where it already is.

Still, I think it might be worth a try.  Thoughts?

7 Responses to “New Patch on Old Cloth?”

  1. Sharon Angle Says:

    Your suggested amendment is simply untenable. First and foremost, such an amendment would complicate the legislative process immensely. Federal lawmakers would not only have to navigate through the complex procedural hurdles already in place in Congress, but would now have to consider the demands and threats of state lawmakers (or governors), which would in effect make the legislative calculus nearly unsolveable. Imagine that a bill has the support of Congress and the President, but 26 states want to veto it. At this point Congress would have to tweak the bill the the satisfaction of at least half the states. But each state is vastly different. Thus, a tweak that may benefit one state will hurt another, and consensus would never be reached. I submit that if such an amendment were ratified, no federal legislation would ever get passed.

    But the true danger is not in having an inoperable Congress, it is the pervasion of special interests. Congress itself is already dominated by special interests, in effect making the legislative process a game of plutocratic warfare. But if you throw state lawmakers into the mix, the special interests will begin to attack them too. Thus, imagine if there is a 25-24 split on a piece of legislation, and a single state governor’s decision will determine the fate of the bill. Imagine how the special interests will go after that one governor!

    I could continue on for pages with a parade horribles so hideous that even the corporations would be appalled. But I think the foregoing two points suffice, your suggested amendment is not a good idea.


    • I agree that your first point is a good one, and I acknowledged in the original entry that the proposed amendment might set the bar too high for new federal legislation. On the other hand, as proposed, it’s a little bit of a two-edged sword: Congress would sort of need a consensus of half of the hundred state legislative and executive branches to pass a bill, but the would-be opposition would also need the consensus of as many actors (half of the hundred) to veto it; in fact, because the proposed system adds a veto, a negative, rather than another body that must (like the Senate and the House) positively approve a bill, the path of least resistance would be for them not to stand in its way. If their use of the veto is unpopular, they will be politically accountable for the decision to use it, but if the bill they choose not to veto is unpopular, to some extent, they can persuasively say that it wasn’t their idea, it wasn’t any of their business, etc.

      For your second point, to some extent, similar thoughts come to mind: If it comes down to a single governor, for example, sure, there may be incentive to bribe him, but at that point, he’ll have an awful lot of public scrutiny on him, and there will be plenty of incentive for him not to do something that the people don’t want just because it’s to his advantage (whether there’s any illegal or unethical corruption or not).

      Interestingly, this National Review article I’ve just discovered (see link to explanation below) argues for repealing the Seventeenth Amendment entirely, and right out of the gate, one of the two reasons he gives is that he argues it would significantly reduce the influence of special interests. Later in the article, after incorporating James Madison and a Federalist Paper, he summarizes, “By resting both houses of Congress on the same constituency base — the people — the Seventeenth Amendment substantially watered down bicameralism as a check on interest-group rent-seeking, laying the foundation for the modern special-interest state.”


  2. […] else had also been writing about repealing the Seventeenth Amendment (requires subscription).  (I wrote about the problem of the Seventeenth Amendment just this past Saturday.)  Of course Mr. Zywicki’s article is longer and more erudite than […]


  3. […] talked before (here and here) about the possibility of a constitutional amendment to address the structural problems with our […]


  4. […] I think a revival of federalism would be a very good thing for the country; barring a constitutional amendment, having a pro-federalism president might be the best thing for […]


  5. […] suggested before that possibly this trajectory can be altered only by repealing the Seventeenth Amendment […]


  6. […] Advanced-level bonus points:  He also managed to mention that we should repeal the Seventeenth Amendment. […]


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