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June 11th, 2010

Is Less Democracy Actually More Democracy?

By Nathan Tucker

Should this be the last year that the American people directly vote for their U.S. Senators? In the name of more democracy, several Republican nominees have recently expressed an openness to the idea of repealing the 17th Amendment, the 1913 amendment which replaced the original selection of senators by state legislatures with a direct vote of the people.

Ohio’s Steve Strivers and Idaho’s Raul Labrador, both Republican nominees for the House, have indicated that they are sympathetic with the idea. One of the Tea Party candidates who defeated Senator Robert Bennett (R-UT) last month, Tim Bridgewater, has argued that “if the states elected their senators, legislative monstrosities like ObamaCare or [No Child Left Behind], with their burdensome mandates, would never see the light of day.”

That, precisely, was the reason why our country’s Founders provided states with a voice in the federal government. Because they knew that constitutional limits on federal power were meaningless if the courts refused to enforce them, they also devised institutional checks and balances in the structure of the federal government so that, as James Madison wrote, each of the “constituent parts may…be the means of keeping each other in their proper places.”

Politicians are, collectively, addicts to power, and history has shown that they know no self-control. Because, as Lord Acton aptly noted, “power tends to corrupt, and absolute power corrupts absolutely,” the Framers of our Constitution feared giving too much power to the federal government and instead made it one of specific and limited powers.

Since politicians cannot be trusted to keep themselves within their constitutional bounds, the Founders made some of them directly accountable to the states, a constituency which had the ability and the will to resist any encroachment on their constitutional prerogatives. By this means, the ambition of the states would check the ambition of the federal government.

If the states ever lost their voice in the federal government, the Founders knew that they would eventually become mere handmaidens of unrestrained national power and that federalism, that great preserver of the greatest amount of liberty for the American people, would be dead.

James Madison wrote in The Federalist Papers that the election of Senators by state legislatures was necessary to “giv[e] the State governments such an agency in the formation of the federal government as [to] secure the authority of the former.” Roger Sherman argued at the Constitutional Convention that, “[i]f the State [governments] are to be continued, it is necessary in order to preserve harmony between the Nation and State [governments] that the elections to the former [should] be made by the later.”

George Mason stressed at the Convention that without adequate protection “the national Legislature [would] swallow up the legislatures of the States. The protection from this occurrence [would] be the securing to the state legislatures the choice of the senators of the United States.”

Alexander Hamilton, strident nationalist though he was, noted in The Federalist Papers that, without the election of senators by state legislatures, “it would doubtless have been interpreted into an entire dereliction of the federal principle, and would certainly have deprived the State governments of that absolute safeguard which they will enjoy under this provision.”

The fears of the Founders came to pass, however, when the country passed the 17th Amendment in 1913 and radically and fundamentally changed the structure of our government from a limited, federal institution to a national, all-powerful one. Though on paper the Constitution still reads as a grant to the federal government of limited, enumerated powers, the reality has become that, without the institutional check that state representation in the Senate provided, the federal government does as it pleases save for the extremely rare and almost extinct judicial check on its authority.

It is long past due for federalism to be restored and the 17th Amendment repealed. It is only by giving up the direct election of our senators can we ensure the return of a Constitution with teeth and a greater degree of liberty that is off-limits to Washington.

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About the Author

Nathan W. Tucker
Nathan W. Tucker is a Davenport attorney and author of We The People: The Only Cure to Judicial Activism. He can be contacted at nathanwt@juno.com.




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