Wednesday, June 2, 2010

The Tea Party and the Seventeenth Amendment

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.


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Isn't the beauty of our Constitution the principles of separation of powers and checks and balances? What's more, faction is made to compete against faction. Multiple interests are made to compete against each other, be those interests within the government or about the people.

Citizens have an interest in the federal system. States, too, have an interest. Yet, given the Supremacy Clause, given Preemption, and given the almost-limitless reach of the Commerce Clause, what is the meaningful, structural constitutional check that States have to curb Federal overreaching?

My initial inclination is to support repeal. The goals of the faction know as citizens are represented and carried out by popular election to the House. The faction that is the States appears to have political power but is structurally neutered. Ironically, limiting citizen election of Senators might actually result in greater diversity of represented interests.

Posted by: Greg | Jun 6, 2010 8:00:55 AM

When I first began writing an article on the Seventeenth Amendment a decade ago, I thought it was an interesting study in inter-jurisdictional competition, likely never to arouse enough passion to be the subject of the popular press. Although the current attention to the subject will likely be fleeting and the repeal idea will fade, the Seventeenth Amendment discussion makes for a healthy debate on broader constitutional issues. Hopefully the way it reached the popular eye will not diminish the more serious constitutional discussion it should evoke.

For those interested, my article is on SSRN:

Donald J. Kochan, State Laws and the Independent Judiciary: An Analysis of the Effects of the Seventeenth Amendment on the Number of Supreme Court Cases Holding State Laws Unconstitutional, 66 ALBANY L. REV. 1023 (2003).

"To date, the literature on the effects of the Seventeenth Amendment has focused almost exclusively on the effects on the political production of legislation and competition between legislative bodies. Very little attention has been given to the potential adverse effects of the Seventeenth Amendment on the relationship between state legislatures and the federal courts. This Article seeks to fill part of that literature gap, applying positive political theory to examine the potential effects of the Seventeenth Amendment while remaining generally agnostic concerning whether the hypothesized decrease in state power represents a sound governing structure. This Article's main focus is on examining the institutional weapons available to state legislatures in the pre-Seventeenth Amendment world resulting from state legislatures' influence in Congress. It posits that these weapons could be used to influence outcomes at the Supreme Court and other federal courts if those courts threatened the institutional interests of state legislatures, mainly the durability of state legislative acts. This Article hypothesizes that the Seventeenth Amendment left federal courts free to hold state laws unconstitutional without significant fear that the institutional interests of the federal court system and the interests of individual judges would face retaliation for such holdings."

Posted by: Donald Kochan | Jun 7, 2010 11:22:21 PM

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