Tuesday, September 24, 2002
With regard to Todd Zywicki's calls to repeal the 17th Amendment (an idea I've certainly entertained) I note that most places with bicameral legislatures try to get them elected or selected in different ways, in order to get "ambition to check ambition." Germany relies on something like the pre-17th Amendment system; the upper house represents the state governments directly (so that when a state government changes party hands, the state's representation in the upper house changes immediately--unlike the pre-17th US Constitution, in which Senators were elected for a stable seven years.) The House of Lords has now become almost-entirely an appointed body without any real organizing principle. The Canadian Senate (as I underwstand it, which is not well) is similar. The Australian Senate is elected on a proportional basis, unlike the single-transferrable vote rules for the lower house, which translates into small parties often being able to pick up one or two of a state's six senators despite being shut out of the House. In high school they taught us, more or less, that it was an inevitable result of "democracy" that eventually Senators came to be elected as if they were running for particularly large (and unequally-populated) House seats. This appears not to be so. On the other hand, many of the upper houses I mentioned have gradually become much less powerful than the Senate, and much less powerful than their lower counterparts. (The Canadian Senate matters even less than the House of Lords does, these days.) Without the 17th, the Senate might have gone the same way-- resulting in the loss of real bicameralism instead of the salvation of real federalism. As Tocqueville knew, the pressure for democracy in a democratic age is powerful. We shouldn't assume that its consequences can be treated as mere intellectual mistakes, even when they are intellectual mistakes. It's a real surprise that the United States has managed to hold onto as much federalism as it has, onto two-Senators-per-state, onto a very powerful independent judiciary appointed for life (at least at the federal level), and onto pretty genuine bicameralism and separation of executive from legislature. Even if the original 1787 apparatus were clearly better as a matter of constitutional engineering than the current mechanism, it might have been too politically fragile. If it had not bent with the 17th amendment, it might have broken later say, during the Terrible Twenties and Thirties when constitutional democracies were swept away by populist-authoritarianism in much of the world, and we had Longs, Coughlins, and Roosevelts of our own. A defense of the 17th along these lines is kind of like a defense of the 1937 "switch in time that saved nine" by the Supreme Court, not because the switch was constitutionally correct, but because it did manage to "save nine"-- that is, to save substantial judicial independence from a court packing precedent that would have left us with New Deal constitutional revisionism and with a cowed, subservient judiciary and with a precedent for presidents changing the constitutional rules whenever they weren't getting their way. But the defense of the 17th isn't quite that bad, because the old Senate wasn't abolished in the heat of some particular political argument about what it was doing, and so accepting the 17th wasn't quite as shamelessly opportunistic. CORRECTION: D'oh! Senators were, of course, elected for six years-- typing "17" so many times put "seven" onto my brain. Thanks to the readers who pointed this out.
Posted by Jacob T. Levy at 1:52 PM