From The Volokh Conspiracy and Alliance Defense Fund:
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The Relationship Between the 17th Amendment and Other Parts of the Constitution
Todd Zywicki • November 2, 2010 10:07 am
Several commenters on my post that I have a new article on the 17th Amendment in National Review argued that rather than repealing the 17th Amendment they instead would prefer more vigorous enforcement of the Commerce Clause and 10th Amendments, which would (they presumably would argue) bring about many of the same benefits without offsetting costs. This is certainly a reasonable position and actually raises some interesting issues in its own right.
First, I don’t think this would accomplish the ends of constitutional design as effectively as repealing the 17th Amendment. One of the arguments I emphasize in the article is that for the Framers the importance of indirect election of the Senate was to further the system of bicameralism (and thereby to frustrate rent-seeking) as much as it was to promote federalism. (None of my critics in the comments addressed this argument although they must be fast readers though because they had apparently already read the article and were criticizing my argument within minutes of my post.) The other proposals for increased judicial review would potentially protect federalism but would do nothing about strengthening bicameralism as a check on rent-seeking.
Second, with respect federalism, there is embedded in this argument a more important point. As I read The Federalist and other debates of the time, what jumps out at me is that the Framers believed that appointment of Senators by state legislatures would be both a necessary and sufficient condition for the preservation of federalism. So the basic idea seems to be that it was not thought necessary to create other formal mechanisms for the protection of federalism. So they did not build in a lot of other supports for federalism because they did not think it necessary. And, in fact, the original Senate did seem to produce this result.
This meant two things.
First, during the 19th century there was rarely a need for the judiciary to intervene to police overreach by the federal government, such as an aggressive assertion of the Commerce clause by Congress. Why? Because legislation that would stretch the reach of the Commerce clause simply was not enacted in the first place. This also meant that when Congress did in fact start stretching the Commerce clause to the breaking point during the New Deal, the Supreme Court lacked a robust and coherent Commerce clause doctrine that could police the boundaries on the federal government. For the first century and a half of the Constitution the Supreme Court didn’t really need to be the business of policing limits on the federal government because those limits were rarely tested.
Second, to my mind, the enactment of the 17th Amendment does mean that it becomes more important for the courts to be more aggressive position in exercising judicial review of federal powers, such as the Commerce clause and the 10th Amendment. Let me explain.
As I read the history of the 17th Amendment, its supporters simply intended to replace the old system of election with a new system. They did not intend to repudiate the constitutional principle of federalism in the process. So that what they intended to do was to preserve federalism as a constitutional principle but simply change the method of Senate selection. The problem is that state legislative election of Senators was the only real structural support for federalism in the Constitution. So once that pillar was knocked out we were left with the continuation of the constitutional value of federalism but without any good structural support for that value.
Which implies to me that if federalism is still a constitutional value but the structural means of enforcement has been eliminated, then it is appropriate (and perhaps necessary) for the judiciary to increase its role in policing the federalism boundary, such as by more vigorous enforcement of the 10th Amendment and Commerce clause. I noted that a contrary argument would be that the 17th Amendment was intended to kill federalism as a constitutional value. I don’t read the debates that way. My sense is that the death of federalism was an unintended consequence of the 17th Amendment, not an intended result.
I believe that judicial review under the 10th Amendment or Commerce clause would be useful to try to restore federalism as a constitutional value (as opposed to a mere political expediency as it is today). But I don’t think it would be as effective as repealing the 17th Amendment in providing a structural protection for federalism as a constitutional value. The original structure of the Senate provided an ex ante protection against “mischievous” legislation by placing the federal-state balance at the heart of prudential questions. This would be replaced with an ex post system of judicial review. It would also take what was a combined prudential/constitutional question and make it entirely constitutional. Thus judicial review while it would provide a useful backstop, I think that it would draw the line on the federal-state balance in a different (and less desirable from a perspective of competitive federalism) place from where it would emerge from the give-and-take of the legislative process.
Finally, there is an argument that democracy is a sort of one-way ratchet, and that once selection of a political office is made democratic there is no going back, so that the whole argument is Quixotic. That is a strong argument and it is, in fact, difficult to see how we repeal the 17th Amendment. But I’m not persuaded that this renders the argument moot.
First, the 18th Amendment was repealed by the 21st Amendment, so it is not unprecedented to argue for the repeal of an amendment.
Second, it is not the case that citizens cannot be persuaded to move from democratic to less-democratic means of political selection. For example, today Nevada voters will choose whether to replace democratic election of judges with what is often called a “merit-selection” regime. Nevada voters might vote it down but it illustrates the proposition that it is entirely plausible to ask voters to reconsider democratic election of political actors. Nor is the tide of democracy inevitable–although many states have some sort of popular election of judges, there was never a serious effort to amend the Constitution to provide for democratic election of federal judges. Indeed, as I note in my article, it remains puzzling to me that many of those who express the greatest shock at proposals to reinstate indirect election of Senators are often those who are also most strenuously attached to the much more anti-democratic process of appointment of federal judges. They seem to understand that the real question is not whether an institution is more or less democratic but rather which method of selection will best equip that body to fulfill its functions within the constitutional scheme.
The bottom line question is what system of selection of political officers will best further the goals of the Constitution. I happen to think that the original framework was a pretty good balance of creating a republican government that would tame agency costs by political actors, preserve individual liberty, and frustrate special interest rent-seeking. Non-democratic appointment of judges with shared authority between the President and the Senate, direct election of House members, state election of Senators, and the elaborate state-based architecture of the Electoral College* strikes me as an ingenious and well-balanced system. These are all the “auxiliary precautions” that Madison touts in federalist 51 as providing the bulwarks of the constitutional republic.
*Although I do think that the version of the Electoral College as it has evolved of essentially state-by-state popular election of Electors is probably an improvement over the original scheme, although I think there is some systemic value in preserving the basic anti-democratic structure of the state-based Electoral College rather than a national popular vote. But I haven’t thought about this particular issue closely enough to have a definitive opinion.