Effects of 17th Amendment have not all been wonderful

Liberal Democrats like Sen. Michael Bennet are worried — worried I tell you — about what might happen to the Constitution if people like Ken Buck are elected.

Yes, the same group of people who have been feeding James Madison’s handiwork backward through a paper shredder over the last two years are suddenly concerned conservatives might have a different take on the document and changes made to it.

Appointed-Sen. Bennet’s campaign has been running ads all aquiver over remarks by District Attorney Buck on the wisdom of having changed the selection method for United States senators in 1913 by the adoption of the 17th Amendment.

Explaining a lot about Bennet’s lack of success running the Denver Public Schools, his campaign has been framing the discussion as wanting to “rewrite” the Constitution. There must not be enough Scotch tape in his office to put the Constitution back together to see the original method of choosing senators was selection by state legislatures.

Amendment by turn-of-the-century progressives was what changed the Constitution. No one has rewritten it, only amended it, and short of a constitutional convention, there is not really a way to rewrite the Constitution.

This may sound strange to some, since it took congressional action and three quarters of the states ratifying an amendment just to regulate alcohol consumption. Yet now folks in Bennet’s party think a faceless bureaucrat at the EPA can simply sign a document to regulate carbon dioxide and our whole way of life.

What’s interesting about the change in the selection of senators is that it probably is where the Constitution’s Ninth and 10th amendments, protecting the rights of the individual states, began to become uncoupled from legislative action. The framers had good reason for wanting the Senate to be chosen by state representatives. It was precisely to keep the interests of the states balanced against those of an overbearing federal government.

Senators representing interests of the states would be unlikely to vote for programs and federal requirements that would mandate state governments implement federal laws and pay for their operation purely out of state coffers. We refer to these things today as “unfunded mandates,” and they would certainly be less prevalent if senators had to return to state legislatures and explain votes that forced state governments to raise taxes to pay for federal programs.

Each state was, to a large extent, free to be its own constitutional laboratory. Deviations from rights guaranteed in the body of the Constitution had to be prevented and the country fought a terrible Civil War over departures from those unalienable rights of man. In general however, the broad operation of the states and the economies they manage are not meant to be unduly interfered with by the federal government.

Senators, whose number is not proportional to the population of their states, were there to preserve that protection. Each state was to receive equal representation in the Senate to protect the smaller states’ interests from being overrun by the more populous. Bills connected to spending and raising money were to originate in the proportionally represented House, to prevent smaller states from taking advantage of the Senate’s disproportionate representation in the assessment and distribution of taxes.

Proponents of changing the selection of senators to direct election pointed out there was a great deal of graft and vote-buying going on in legislatures choosing senators, and often there were long vacancies in the Senate when state legislators could not agree on representation.

Unfortunately, direct election has not removed the influence of money from the selection of senators, nor done away with vacancies as recent vote-counting difficulties only seem to multiply. Instead, it has created a sort of super House of Representatives, with six-year terms and wildly non-proportional representation.

Progressives have taken advantage of this result to chip away at the framers’ elegant system of checks and balances in creating a constitutional republic of united states. They have attempted to substitute a top-down system of control, where states are little more than functionaries of the national government and senators are national politicians infrequently returning to their states to boast of their success in redistributing taxes and receive donations from out-of-state interests to assist in their re-election.

While it is unlikely we will be able to go back and tweak the 17th Amendment, examining its aftermath is a worthwhile endeavor.

Rick Wagner offers more thoughts on politics on his blog, The War on Wrong.


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