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 influence.
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.