The short answer to the question above is: Yes.
Here is the back story. The elections this past November were
truly historic for those who love freedom. The Tea Party, a
grassroots libertarian insurgency cobbled together from disaffected
Republicans and libertarians, managed not only to strike fear into
the Establishment, but actually to throw off the Establishment’s
hand-picked candidates in favor of those supporting limited
government. The Republicans were able to ride this wave, taking
control of the House and achieving a filibuster-positive number in
the Senate. What many voters may not have known, though, is that if
the Constitution we cherish were still in its original form with
respect to the Senate, they would never have been able to vote for
Rand Paul or Marco Rubio, and that would have been a good
thing.
The 17th Amendment to the Constitution, which provides for the
direct popular election of senators, was enacted in 1913, at the
height of the Progressive Era. Originally, the Constitution had
provided for state legislatures to appoint U.S. senators, a
realistic reflection that the Constitution was a compact of
sovereign states. It meant that senators would not be focused on
public campaigning; they could do what they were elected to do.
They would represent the interests of the states that sent them —
not the people in the states, but the states as sovereign
entities.
The Founding Fathers’ original intent in providing for indirect
election of senators was to place a strong check on the power of
the federal government. At the federal table, the people were to be
represented by the House of Representatives, the nation as a nation
was to be represented by the president, and the states as sovereign
entities were to be represented by the senators whom the states
sent to Washington. The beauty of this federal table concept was
the veto the states had on the encroachment of their sovereignty by
the feds. The 17th Amendment killed that veto, took away the
states’ place at the federal table, unleashed the feds’ appetite
for power, and assaulted the delicate constitutional framework the
founders gave us.
Consider the ways the process of recalling a rogue senator
differs between then and now. Before 1913, if a senator were to
assault state sovereignty, the people of that state were able to
exert influence on the state legislature, which is held accountable
every two years by a popular vote. The state legislature would be
able to recall a senator immediately, thus sending a powerful
message that those in the highest seats of federal power could be
instantly dethroned.
Now, only the voters of 18 states have the power of recall. And,
you must remember, the senator will likely have enough of a
constituency, dependent on the largesse she provides, that will
have an interest in keeping her where she is. Since 1913, there has
never been a senator recalled.
This is not a dead issue; it is one that has been picking up
steam. Sen.-elect Mike Lee (R-UT), who was swept to power in the
recent elections, advocated the Amendment’s abolition during his
campaign. Think about it: If it weren’t for the 17th Amendment,
President Obama’s health care legislation would never have come to
pass because senators who were held accountable to their states
would never have agreed to impose an unfunded mandate on them.
As the Tea Partiers educate themselves about what is good law
and can stay, and what is bad law and must be purged, I would urge
them to take a second look at the 17th Amendment and consider
whether more democracy is what we want, or if it’s really more
checks on the voracious federal appetite for power that we
need.
