As I was preparing to write a column on the ludicrous maligning of the Tea Party
movement by liberals, Democrats and the mainstream media (which I hope to write next
week, instead), I started thinking about one of the key objectives of the Tea Party
people the strict enforcement of the 10th Amendment ("The powers not delegated to
the United States by the Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people").
As an early 1960s vintage member of the then-new conservative movement,
I remember us focusing on the 10th amendment during the 1964 Goldwater
campaign. It has been a staple of conservative thought, and the
continued dormancy of 10th amendment enforcement has been one of the
failures of our now half-century-old movement.
But just as the Tea Party movement in so many ways seems to represent
the 2.0 version of our movement, so I again thought about the 10th
amendment anew. After about 10 seconds' thought, it struck me that the
best way to revive the 10th Amendment is to repeal the 17th Amendment
which changes the first paragraph of Article I, Section 3 of the
Constitution to provide that each state's senators are to be "elected by
the people thereof" rather than being "chosen by the Legislature
thereof." (As I Googled the topic, I found out that Ron Paul and others
have been talking about this for years. It may be the only subject that
could be proposed and ratified at a constitutional convention with
three-fourths of the state legislatures.)
At first blush, this might seem counterintuitive, as the 17th Amendment
was brought about by a populist movement supercharged by muckraking
articles in the newspapers of William Randolph Hearst. Those articles
exposed corporate bribery of state legislators to control senatorial
votes. As the direct election of senators by the people was a reaction
to the corrupt lobbying of state legislatures that so aggrieved
late-19th-century Americans, it might seem odd to recommend its repeal
now when again, corrupt lobbying and the aggrandizing of excessive
government power over the people is part of the fuel that is driving the
tea parties. It certainly seems particularly odd for me to suggest this
just a week after the election of Scott Brown to the Senate by an
aggrieved public that has just overwhelmed with their individual votes
the Boston Democratic machine.
But in my defense, let me initially note that the 17th amendment has not
yet ended the legal but appalling bribery of U.S. senators it has
merely moved it to Washington. Senators today succumb far too often to
such influence whether from the White House, the leaders of the
Senate or national lobbying forces. Moreover, it has been since 1913,
when the 17th Amendment was enacted into law, that the 10th Amendment
increasingly began to be ignored.
The nature of our government is largely a product of political power
being applied to lawmakers and executors. The U.S. Constitution remains
in force to the extent that its arrangement of political power tends to
be the happy byproduct of power's self-interested exercise. The genius
of our Founding Fathers was to recognize the inevitable victory of power
over principle and to so arrange the distribution of power that in
that exercise of self-interest, offsetting forces would keep
constitutionally guaranteed rights in existence nonetheless.
With episodic waxing and waning, that arrangement has worked reasonably
well for over 200 years as among the separated powers of the three
federal branches: Congress, the presidency and the Supreme Court.
It has almost completely failed as between the once sovereign states and
the federal government. The sovereignty of the state was overturned (or,
if one prefers, disproved) with the conclusion of the Civil War. The
remaining states' rights began to be undermined with the post Civil War
14th Amendment. Through expansive interpretations of the 14th Amendment,
the Supreme Court progressively reduced states' rights by nationalizing
the Bill of Rights, starting in 1897 (Burlington & Quincy Railroad Co.
v. Chicago); continuing in 1947 with Justice Hugo Black's famous dissent
in Adamson v. California; and concluding in 1961 when the court in Mapp
v. Ohio totally incorporated the Bill of Rights to the states through
the 14th Amendment's due process clause.
For about a hundred years after the Civil War, defense of "states'
right's" was most conspicuously made to defend continuing limitations on
the rights of blacks. Thus, states' rights were seen as a mere euphemism
for a repugnant and retrograde proposition, and were therefore a weak
banner under which to defend more noble political propositions.
As federal power was expanded at the expense of state rights in order to
vindicate the rights of blacks (and, less visibly, to aggrandize other
powers in Washington), a dangerous constitutional imbalance came into
being regarding all federal/state jurisdictional matters.
The most efficient method of regaining the original constitutional
balance is to return to the original constitutional structure. If
senators were again selected by state legislatures, the longevity of
Senate careers would be tethered to their vigilant defense of their
state's interest rather than to the interest of Washington forces of
The Senate then would take on its original function the place where
the states are represented in the federal government.
Senators still would be just as likely to be corrupted. But the
corruption would be dispersed to the 50 separate state legislatures. The
corruption more often would be on behalf of state interests. And its
remedy would be achievable by the vigilance of voters for more
responsive state legislative seats (typically, about less than 50,000
residences per state legislator), rather than Senate seats (the entire
population of the state usually millions.)
Only by changing the architecture of power will we change the shape and
exercise of power.