There’s a difference between history and nostalgia, and nowhere does this appear in more stark contrast than in the musings of radical conservative columnists. We don’t have to burrow through the ideological muddle of Justice Scalia’s mind to find examples, we can simply pick up a copy of the Elko Daily Free Press and find one of their columnists opining about repealing the 17th Amendment.
The 17th Amendment calls for the direct election of U.S. Senators, removing the power of the state legislatures to appoint them to office. By the ultra-conservative lights, however dim, this is the source of all evil, the font from which the liquefaction of Federalism flows. The first clue that this argument is based on nostalgia not history are the citations from authority – such as George Mason and James Madison. The Senate shall be, in their 18th century view, the bulwark of state’s rights, and the state’s rights will be protected by the state legislatures. It just didn’t work out that way.
A system designed in the late 18th century to preserve a fragile union, with an eye toward the southern states’ inclination to maintain their “Peculiar Institution,” devolved into a license for corruption by 1913. Author David Gans explains:
“Election of Senators by state legislatures was a disaster. Far from being “good politics” or “good constitutional design,” the system led to rampant and blatant corruption, letting corporations and other moneyed interests effectively buy U.S. Senators, and tied state legislatures up in numerous, lengthy deadlocks over whom to send to Washington, leaving those bodies with far less time to devote to the job of enacting the laws their states needed for the welfare of the people. These ills made the case for bringing the election of Senators in line with the Constitution’s fundamental values of protecting democracy and securing the right to vote to all Americans a very strong one. Once the Senate relented and approved the Seventeenth Amendment, the States ratified the Amendment in less than eleven months.”
That last sentence is important – far from being an imposition of the national government, the approval of the direct election of Senators came from the state legislatures themselves, and in only eleven months. Something must have been going very wrong.
Here are a couple of examples which may serve to demonstrate why the state legislatures were none too impressed with the 18th century system:
“ In 1899, the Montana legislature sent William Clark to the U.S. Senate after he personally contributed $140,000 to the legislators of Montana. A decade later, the Illinois legislature elected William Lorimer – known as the “blond boss” – to the Senate after bribes offered to state legislators helped break a deadlock in the state legislature. Clark ultimately resigned his seat; Lorimer was expelled by the Senate after the Chicago Tribune unearthed the critical facts.” [USCon.Org]
If we are worried about the influence of money in politics in the wake of the Citizens United decision, imagine how much more money might be effectively expended by very-special-interest in state races in order to buy-in a Senator? Nostalgia tells us that the legislative appointment of Senators would allow the flowering of originalist federalism; history tells us that there’s a reason why only 11% of Americans like the repeal idea. [HuffPo]
There are two other considerations, the first being the concept of counter-balance. Big Money has greater influence in smaller elections, like those for state legislatures. Secondly, there’s the problem of stalemates and this did turn into a political reality in the early 20th century:
“A deadlock delayed the selection of New York’s senators in the First Congress, and the phenomenon became more and more common as time wore on. Between 1891 and 1905—a period of only 14 years—there were 45 deadlocked senatorial elections in 20 different states!” [Const.org]
Obviously, while the legislature is deadlocked the state is under-represented in Congress. It’s one thing to embrace the bucolic nostalgia for a simpler time and country, and quite another to face the historical fact that money + small political bodies = big problems.
By Tea Party understanding, the loss of Federalism (or the demise of States’ Rights – a term which has acquired a tainted meaning in the wake of the modern civil rights movement) has created such evils as the New Deal, Motor Voter Laws, No Child Left Behind, and Medicaid. Controversial as those laws may be, the Tea Party seems to have no problem with such incursions into States Rights as the Hyde Amendment, the rejection of state campaign funding reforms, or the efforts of major energy companies to defeat state’s efforts to control air and water pollution. In short, the modern advocates of repeal are often highly selective in terms of the list of evils the loss of States’ Rights has engendered.
What might be alarming is that the fringe Right has some critical allies. ALEC once gave serious consideration to supporting model legislation to repeal the 17th Amendment, and then dropped its advocacy in the face of significant opposition. [HuffPo] There are still bastions of support. Still those who would trade the nostalgia of yesteryear for the reality of 21st century America – and give yet more power to the corporate interests who have the money to go for the glory.