Wednesday, June 2, 2010
There has been a spate of coverage in recent days of Tea Party calls for repeal of the Seventeenth Amendment--the 1913 Amendment that replaced the appointment of U.S. Senators by state legislatures with popular election. Just to cite a few pieces in just two outlets: David Firestone opined yesterday in the NYT; Ashby Jones responded in the WSJ Law Blog; Matt Bai wrote in today's NYT; Jones came back in today's WSJ Law Blog.
There appear to be two primary arguments against the Seventeenth Amendment. First, the Seventeenth Amendment took away the states' primary political check on the federal government, leading to a vastly oversized federal government that freely tramples the states and their "rights." Next, the Seventeenth Amendment took away the appointment of U.S. Senators from responsible and accountable state legislatures and put it in the hands of special interests (who pull the strings in state-wide senate elections). As a result, Senators represent Big [Fill in the Blank], and not the states. (The links in this paragraph go to The Tenth Amendment Center, a site full of material on "states' rights.")
Both arguments seem surprising in this political climate, where "states' rights" get frequent attention and where "states' rights" advocates seem to enjoy at least some political power at different levels of government. (Don't the arguments fold back on themselves if "states' righters" are able to elect their own senators? And if they can't garner the political support to elect their own senators, doesn't that say something about the voters' views on federal power and "states' rights," effectively negating the arguments?)
In any event, the issue has appeared in a handful of races this year, but has sometimes backfired. "Repeal the Seventeenth Amendment" doesn't appear to be a particularly effective rallying cry, for good reasons. First, there's no particular reason that voters should trust state legislatures more than themselves; repeal thus may sound anti-democratic and even elitist. Next, repeal isn't a particularly durable position: When the politics change, positions on repeal will, too. (If state legislatures were to appoint Senators who do not (by advocates' reckoning) sufficiently respect "states' rights," repeal advocates might call for reinstatement!) Finally, repeal of a constitutional amendment is a particularly difficult (and uncertain) way to achieve the result that advocates seek; they might much more easily promote the election of candidates favorable to their own positions. The call to repeal thus may sound to many voters like a political gimmick, not a serious constitutional position.