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Repeal the 17th Amendment!
It made the Senate more democratic — and that’s not good.


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In our grubby, unhelpful political lexicon, certain words exist solely to end conversations. The most prominent such word is “racist.” Less popular, but by no means less potent, are “democracy” and “rights.” When welded together as “democratic rights,” the pair becomes all-powerful — strong enough to send grown men spinning for the exits and to render eloquent speakers mute.

For a good example of this principle in motion, witness the orthodox reaction to anyone who calls for the repeal of the 17th Amendment. (Direct election of senators, if you’re wondering.) Removing this ugly violation from the Constitution it so corrupts is an idea that has long lingered on the fringe (there’s another of those conversation-terminating words) and, until the massive expansion of federal power that marked the past decade and woke up the sleeping libertarians, it seemed destined to remain there in perpetuity. Even now, to declare in public that you think the whole of 1913 was one long, ghastly mistake is to be looked at as if you have just announced that the United States should consider restoring the British monarchy.

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Providing what may be the Platonic ideal of such dismissals, Salon’s Alex Seitz-Wald reacted to the renewed interest by declaring in 2012 that, because any increase of democracy was “unquestionably positive,” any modifications were tantamount to “doing away with rights.” America, “we’re told from a young age, is all about democracy,” Seitz-Wald wrote, “and democracy is all about choosing whom you want to be your representative and holding them accountable.” This, he added, “seems like an entirely uncontroversial idea.” I cannot account for Mr. Seitz-Wald’s grasp of America’s history, beyond saying that if he has indeed been told “from a young age” that America is “all about democracy,” then he must be forgiven for believing it. Still, whatever his schools might have told him, the United States is not in fact a democracy but a constitutional republic, and her virtues lie as much in her undemocratic institutions as in her ample provisions for self-rule — more, perhaps.

Doubt it? Look around. Despite the violence that the 17th Amendment did to it, the Senate remains a partially anti-democratic institution; the Supreme Court is an entirely undemocratic institution; the Constitution is undemocratic, too, requiring for any changes to its structure the consent of a supermajority and containing the Bill of Rights, which is as elevated and explicitly counter-majoritarian a component of national law as you will find. The strong American protections of free speech, freedom of religion, the right to bear arms, due process, privacy, and the right to a jury trial are triumphs of minority rights. How about the absence of a state church? Not for nothing did Patrick Henry cry ardently for “liberty or death.” It is liberty, not democracy, that is America’s highest ideal.

Walter Lippmann famously observed that, at some point in their history, “the American people came to believe that their Constitution was a democratic instrument, and treated it as such.” The New York Times’ David Firestone appears to be one of these American people, arguing as he did in 2010 that “a modern appreciation of democracy” makes the idea of directly electing senators “so obvious” that any proposal of change is “unthinkable.” Putting to one side for now the narrow procedural majoritarianism inherent in his definition, Firestone’s thesis runs into two problems: America is not “modern” and it is not a “democracy.” Perish the thought.

Instead, the American system was deliberately designed to balance power between the various branches of government and to guarantee individual rights against majority rule, thus protecting the people from tyranny whether they liked it or not. The United States government was arranged in this way as a permanent bulwark against federal encroachment. “Changing times” was no more a strong justification for the undoing of this system in 1913 than it is now. And whatever the Wilson-era progressives might have held, the federal government was not intended to be a wholly separated layer of government. Instead, it was to be intertwined with the states to such an extent that it could not ride roughshod over their interests without pushback. As James Madison resolved during the debate over the Bill of Rights:

The state legislatures will jealously and closely watch the operations of this Government, and be able to resist with more effect every assumption of power, than any other power on earth can do; and the greatest opponents to a Federal government admit the State Legislatures to be sure guardians of the people’s liberty.

It is exactly here that America’s democracy fetishists go wrong. As Madison makes clear in the Federalist Papers, in order to defend the vertical checks and balances that allow America’s federal system to function, senators would be “elected absolutely and exclusively by state legislatures.” The Senate was not intended to be the people’s representative body, but that of the states. Lest the federal government “swallow up the state legislatures,” George Mason insisted to his fellow convention delegates in Philadelphia, “let the state legislatures appoint the Senate.” The delegates backed him unanimously.



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