Wednesday, January 5, 2011

Restoring the 10th Amendment Balance

Guest post from Shorter Half (a.k.a. Geodkyt)

I think it is difficult to argue that the balance of power in the United States hasn’t gotten out of whack. Whether you’re a liberal who feels that Chimpy McBusHitler and Darth Cheney abused the system to install an Imperial Executive who ruled by fiat and ignored the law; a conservative who feels the same about almost all Democratic presidents since Comrade El Presidente for Life FDR wheeled into the Oval Office*; or a guy who spent $30,000 Rogaining himself into a Wookie birthday suit, calls dollar bills “Federal Reserve Notes” that aren’t actually “dollars”, feels that the tipping point was when Washington decided to crack down on moonshiners, and proclaims that a standing army larger than the faculty at West Point is militaristic tyranny; there is a general feeling the system is badly in need of an overhaul.

Quite a few people have discussed the idea of a Constitutional Convention to “hit the reset button” on our democratic Republic**, to restore the ideals of the Founding Fathers.

Others (less radical) have proposed simply repealing the 17th Amendment, giving the control of senatorial selection back over to the legislatures of the several states (who could, if they wish, choose to select their senators by popular vote.)

Some think we need a recall procedure or term limits on the judiciary, including the Jedis of SCOTUS.

Let’s go over these options for a minute ...

Constitutional Convention? Look, you (regardless of political leanings) almost certainly think of yourself as a reasonable, responsible person. It’s those other guys who can afford (because they have no life and plenty of rich, uninhibited, power hungry nuts just like them to underwrite their living expenses) to sit around, day in and day out, arguing for months about the shape of the table, until all the reasonable, responsible people have had to go home. So, imagine a constitution written from scratch by the most bitter, partisan, and nutball types on the opposite end of the political plane from you. A Constitutional Convention is a last resort, suitable for a post-revolutionary period, or when you realize the government you just created is completely unsuitable to your needs.

Repeal the 17th Amendment? Well, it would likely restore some of the 10th Amendment balance that’s been lost – appointed senators who do not have to stand election may well be more directly responsive to the legislature that appointed them, and look out for the perceived interests of their state rather than public opinion. Of course, this overlooks the fact that the legislature itself has to stand election. Another difficulty is it simply isn’t going to happen – 2/3rds of both houses of Congress plus 3/4ths of the states are not going to vote to strip the American people of their direct election of Senators. (In all honesty, while I am in agreement that the 17th Amendment was a mistake in that it effectively gutted the 10th Amendment, I prefer to err on the side of the ballot box.)

Term limits and/or recalls for the federal judiciary? Maybe recalls of some sort, the same procedure to recall Sotomayor can be used to recall Thomas. As for term limits, what is a judge to do when he is running up against a Constitutional limit on his career? If he’s a crappy enough judge that you don’t want him on the bench, are you really getting warm fuzzies about the thought of him looking forward at his post-judicial career and figuring he better not offend any future employers, like any Congressman turned lobbyist?

Well, I was at the local Tea Party meeting, when this little gem of an idea was announced:

The Repeal Amendment

"Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed."

Note what this proposed amendment doesn’t do –

• It doesn’t give the state legislatures the ability to create federal law.

• It doesn’t give the state legislatures the authority to override courts decisions they don’t like.

• It doesn’t alter the Constitution every time the people wish to stop something stupid.

• It doesn’t strip away any democratic procedure.

• It doesn’t allow individual states to just pretend to ignore federal laws they don’t like.

• It doesn’t permanently prevent the law from being reenacted if the people decide they prefer it after all.

• It doesn’t risk the complete reorganization of the Constitution.

• It doesn’t create an additional incentive for judges to issue biased rulings to set up his second career.

All it does it give the several states a veto. If a federal law or regulation is so abhorrent that 34 out of 50 state legislatures all reject it, chances are it was a bad idea. Since Congress can vote to reinstate the law under the usual legislative procedures if they feel the state legislatures are out of touch, all it really does is force everyone to slow down and take a second look at it.

Is it perfect? Probably not. For example, it could be worded so that the repeal would have to be overridden in the same manner as a Presidential veto ... but then, this amendment is unlike a veto as it can be used on laws already in effect, and it can be used on non-legislative regulations. I’d rather have this than risk swinging the pendulum so far over we have reduced the federal government to a shell of impotence, like the Confederate States of America, Articles of Confederation, or the Polish Parliaments of the 17th and 18th Centuries. Likewise, I wouldn’t mind being able to veto Senate confirmations or ratifications – but since confirmations and ratifications generally take effect immediately, just how long should treaties and officials such as federal judges be held vulnerable to a ex post facto veto?

For more details, I can recommend the WSJ article, The Case for a 'Repeal Amendment'.

* Well, except for Carter ... even the most rabid Dittoheaded Pajamahadeen sworn to the eternal service of Ronaldus Maximus will readily proclaim that Carter wasn’t even competent enough to function as an effective autocrat.

** Yes, the capitalization style is deliberate – North Korea is a Democratic Republic, Nancy Pelosi wants a Democratic republic – this nation is a Republic whose representatives are chosen by the people (democratic).


  1. Repealing the 17th Amendment does not mean that it would be exclusively an indirect election, through the state legislative body, it could also be direct as it was in 33 states prior to 1913. But what it would do is to restore the balance of power and the federalist system that has been lost because the 17th, by giving the states a seat at the federalist table, where as today it is special interest groups who have the place. It would be for the individual state to decide whether it was going to have an indirect or direct election.

    One thing missing that would have to be added is a recall clause, which the Articles of Confederation had but was left out of the Constitution. It would be needed more so now because then senators had a sense of honor and would leave the position if their views opposed their states. Sadly this isn't the case today.

    Check out my weblog "Repeal the 17th Amendment" for more information about the history and effects of the 17th, the repeal movement and the shenanigans in the US Senate.


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  3. Brian,

    I explictly pointed out that the several state legislatures could choose to continue direct election if the 17th Amendment were repealed.

    Of course, direct election of senators by act of the state legislature is no different in effect on the political process than direct election mandated by the 17th Amendment. If 33 states again decide to revert to direct election for themselves, well, you have the same problem as now.

    It also doesn't address the fact that a repeal of the 17th Amendment is easily demonized as the nefarious scheme of a cabal of nefarious elitists who feel the American people aren't smart enough to be trusted with selecting their own leaders. (Likewise any attempt in a post-repeal world to reverse the direct election process in a state which decided to allow it after the 17th Amendment was struck.)

    It doesn't deal with the blatant and rampant corruption of senators who, rather than campaign openly, only have to buy off an influencial enough slice of a state legislature (generally not even a plurality). Say hello to patronage and machine politics being enshrined in the Senate. By the 1850's, the idealistic intent behind legislative appointment of senators had dissolved into massive corruption.

    You thought Rod Blagojevich created a circus? That sort of thing had become SOP in senatorial appointments, only it was diffused throughout multiple legislators rather than concentrated in a single high profile (and thus easily caught) target like the governor.

    Do you think Scott Brown, Joe Lieberman,Mark Warner, Jim Webb, or Mark Kirk would be senators today if their seats were filled by their state legislatures?

    Giving the states the ability to repeal federal laws and regulations, without requiring any action on the part of any of the three branches of the federal government makes the state legislatures even more directly involved in looking out for their own states, but without the weaknesses and difficulty inherent in repealing the 17th Amendment.

    Only one amendment has been repealed -- an amendment that was so widely disapproved of that the general population almost openly ignored it from the beginning. They repealed an amendment that, frankly, NEVER had truen majority support of the people. . . but the Temperence managed working majorities in the legislative bodies because they could play the religious guilt card AND the wartime patriotism card simultaneously. Yes, Prohibition passed after WWI. . . but the foundation was laid during the war. Congress passed it and 14 states ratified it while the war was still going on.

  4. (Con't)

    The Temperence movement was clever enough to present it as partially a patriotic act, both anti-German (German-Americans were largely opposed to Prohibition) and pro-soldier (in a war where food rationing was universal, they proclaimed the useful savings of grains that could be used for feeding the Army.)

    And don't overlook the religious aspect. Temperance leaders included major religious figures who would more than willingly overlook a politician drinking who voted "with good Christian values" to ban Demon Rum. Contrawise, any politician who voted against Prohibition was marked out as an agent of Satan, even if he personally didn't drink. (Hypocracy, thy name is Moral Prohibition. As the joke goes, "Jews don't recognize the Resurrection, Catholics don't recognize Sola fide, and Baptists don't recognize each other in Hooter's."

    There is no such groundswell against direct election of senators -- instead of an amendment to EXPAND freedom, and amendment to repeal the 17th is an amendment to RESTRICT the freedom of the people, by forcing them to plead with a politician to select someone who will look out for the voter's perceived interests.

    Enshrining nullification through super-majority gives the states their seat at the table WITHOUT opening up new avenues of criminality. Since the people (and the several states) are more likely to be harmed by an unpopular federal law than by the lack of a popular one, it works well for balance.

  5. I can see one, albeit small, problem: Law of Unintended Consequences. What if congressmen decide that they don't need to vote just for good laws but any politically expedient laws expecting the states to police their sloppy work? Then we would get a whole basket of crappy laws and then repeal by the states would be slow and cumbersome. I like the idea in general; I just don't think that it's the perfect solution.

  6. Justin,

    Given the 2/3rds requirement, that's not too much of a real threat.

    Of course, if Congress realizes that the states just aren't repealing bad laws fast enough, they always have the option of repealing the bad laws themselves -- which they can do with a simple majority (or at worst, a 3/5 supermajority cloture vote in the Senate).

    Besides, if Congressmen end up INTENTIONALLY voting for laws so bad that they both want and expect 34 state legislatures to vote to repeal them, you don't think that any of those Congresscritters in a competitive district can't figure out they are going to be unemployed in the next election cycle? The strength of the state political parties is realistically in the legislature, and they can be expected to have closer ties to the state legislature than to the state delegation in Washington.

    Grassroots organizers are also more tightly involved in the state legislatures than Congress.

    Worse, sufficiently annoy your home state legislature, and you probably won't enjoy redistricting at the beginning of the next decade, even if you are of the same party. . .

  7. I agree that it's not much of a threat, I just wanted to point it out. After I posted my first comment, I thought of another problem. 2/3rds of Congress probably wouldn't support such an amendment. They have traditionally resisted giving their powers away such as line item veto power to the President. This amendment would give the states veto power as well. Considering no amendment has been done by convention, I think getting this amendment past Congress is a long shot.

  8. Maybe. Depends on the Congresscritter in question -- and we got a lot more "decentralizers" this last go around.

    Betcha didn't think that we'd ever get the 27th Amendment in place? When the 17th Amendment was first thought of, no one thought it would go anywehre. . . eventually it did, when victories at the state level somewhat equivalent to the Tea Parties of today changed enough of the Senate that it passed. People didn't think it would EVER be possible to repeal the 18th Amendment.

    I would ADAMANTLY oppose any attempt to enact a Constitutional Convention.

    Remember that the plain text Article V of the Constitution doesn't indicate that you can call one limited to a single proposed amendment (and, if you think of how legislation works, even if it's your book club using Roberts Rules to decide when to have teh annual dinner get together, how could it be limited to a specific amendment -- the reason to have the COnvention is to debate the words you're going to propose!) So, the states call for a Convention, but once the Convention opens, it is ENTIRELY open for any amendment(s) that may come out of it.

    the other thing to recall is that teh Constitutional Convention that created our current Constutitution was created in order to propose LIMITED amendments to tweak the Articles of Confederation -- instead they did a 100% reboot.