The Corner

Repeal the 17th Amendment?

One popular idea making the rounds among some conservatives and Tea Partiers is a call for the repeal of the 17th Amendment. From the LA Times:

A common theme among those in the “tea party” movement is that ordinary citizens ought to participate more in the business of government. Yet some tea party activists — and likeminded politicians and commentators — are espousing a return to the election of U.S. senators by state legislatures rather than the people. That would require repealing the 17th Amendment, which was ratified in 1913.

The “Repeal the 17th” campaign is rooted in a nostalgia for an era in which state governments exercised as much influence as the federal government — or more.

There’s a lot of truth to the argument that the enactment of the 17th Amendment undermined federalism. State legislatures have a greater institutional incentive to protect federalism than do the people of a state. The people of a state may want to expand federal program spending in order to get their share of tax revenues, even at the expense of greater national power over issues reserved to the states. Although they are also elected by the people, state legislators have more of an incentive to protect the original distribution of powers between the national and state governments.

Here is what James Madison had to say about the matter (during congressional discussion of the Bill of Rights in 1789):

[T]he 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.

The 17th Amendment weakened the states’ ability to resist the expansion of federal powers. The problem is that there is no point to trying to fix this problem — an effort to amend the Constitution will be fruitless. It requires two-thirds of the Congress and three-quarters of the states. The Tea Partiers would be well advised to devote their efforts to achieving significant limits on the federal government — such as limiting federal spending, cutting taxes, and reversing Obamacare — that don’t demand an amendment to the Constitution. They will have a limited political window to apply their political capital; constitutional amendments will only waste it.

John Yoo is the Emanuel S. Heller Professor of Law at the University of California at Berkeley, a visiting scholar at the American Enterprise Institute, and a visiting fellow at the Hoover Institution at Stanford University.

Most Popular

Culture

White Cats and Black Swans

Making a film of Cats is a bold endeavor — it is a musical with no real plot, based on T. S. Eliot’s idea of child-appropriate poems, and old Tom was a strange cat indeed. Casting Idris Elba as the criminal cat Macavity seems almost inevitable — he has always made a great gangster — but I think there was ... Read More
Politics & Policy

The White Ghetto

Editor's Note: In celebration of Kevin D. Williamson’s newest book, The Smallest Minority: Independent Thinking in the Age of Mob Politics, National Review is republishing some of our favorites of his from the past ten years. This article originally appeared in the December 16, 2013, issue of National ... Read More
Politics & Policy

The Other Case against Reparations

Reparations are an ethical disaster. Proceeding from a doctrine of collective guilt, they are the penalty for slavery and Jim Crow, sins of which few living Americans stand accused. An offense against common sense as well as morality, reparations would take from Bubba and give to Barack, never mind if the former ... Read More
Politics & Policy

May I See Your ID?

Identity is big these days, and probably all days: racial identity, ethnic identity, political identity, etc. Tribalism. It seems to be baked into the human cake. Only the consciously, persistently religious, or spiritual, transcend it, I suppose. (“There is neither Jew nor Greek, there is neither bond nor ... Read More
Health Care

The Puzzling Problem of Vaping

San Francisco -- A 29-story office building at 123 Mission Street illustrates the policy puzzles that fester because of these facts: For centuries, tobacco has been a widely used, legal consumer good that does serious and often lethal harm when used as it is intended to be used. And its harmfulness has been a ... Read More