Conclusions of Jay S. Bybee – Ulysses at the Mast.
Rodney Dodsworth – December 2, 2019
Bybee’s 1997 work was my first scholarly exposure to the 17th Amendment. At the time, I admit to no concern whatsoever over popularly elected Senators. Bybee opened my eyes to the central and indispensable place a Senate of the States held in our Framers’ system. Failed democratic republics litter history and as Western democracies today fail to perform their first purpose, defense of their borders and culture, we may find James Madison prescient when he warned that “Democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security of the rights of property; and have in general been as short in their lives as they have been violent in their deaths.” America, circa 2019, operates on borrowed time.
For its defenders, the Seventeenth Amendment was the “wildest and widest revolution.., since the Constitution of the United States was adopted in 1787.” To its detractors, it was “the total product of those who believed in the illusion of reform. In some respects, the Seventeenth Amendment represents both a significant change in the structure of the Constitution and a failed reform of a system gone awry. Far from bringing the process of government close to the lay voter, the Seventeenth Amendment may well have insulated the voter even further from his government. In the end, the Amendment may have served neither the purposes of federalism nor the ideals of democracy. In New York v. United States, Justice O’Connor observed:
The Constitution does not protect the sovereignty of States for the benefit of the States or state governments as abstract political entities, or even for the benefit of the public officials governing the States. To the contrary, the Constitution divides authority between federal and state governments for the protection of individuals.
If the Seventeenth Amendment represented the failure of state legislatures, did the people acquire anything in the exchange?
At one level, they gained unmediated control over their senators. At least they acquired “control” in the sense of electing a senator every six years. There is, unfortunately, no mechanism for the people to exercise any direct control over their senators in the interim. To put it another way, there is no means for senators to give an accounting of themselves-other than through the mechanism of an election. That would seem to suggest that we have less control of senators than previously. The Seventeenth Amendment answered the people’s craving for the reins of democracy, but at the level at which senators operate, democracy is a poor master. During the debates over the Seventeenth Amendment, one representative asked, “to whom [is] a Senator … responsible? Is he responsible to the Legislature that elected him? … [T]o whom is he responsible after it expires?”
Another argued that “the constant shifting of the membership of State Legislatures removes any possibility of accountability to the body which elects. But what was the alternative? Were the people a more stable body and better positioned to demand accountability? The people only appeared to be more stable because they were more faceless than the legislature; it was precisely because the people could not be identified that senators felt beholden to the people as a body. It is easy to say that one is answerable to the people when the people have no effective means of calling their representatives to accountability.”
It is unclear that the Supreme Court should be responsible for guaranteeing the role of the states and protecting the people from themselves. The Seventeenth Amendment took the power to elect senators from state legislatures (which, after all, represent people) and gave it to the people (who would now represent themselves). It seems to me that states as political entities in a federal system were more aggressively represented in Congress through their legislatures, but since the Constitution now provides otherwise, the people cannot complain about the Supreme Court when the people demanded control of the Senate and then failed to exercise it with the same vigilance as their legislatures.
If we are genuinely interested in federalism as a check on the excesses of the national government and therefore, as a means of protecting individuals, we should consider repealing the Seventeenth Amendment, limiting the terms senators serve (irrespective of whether we also impose term limits on our Representatives), and giving state legislatures the power to recall their senators.
Reestablishing the position of state legislatures, together with recall authority, would effectively return the practice of instruction and engage state legislatures as a serious and proximate check on Congress. Limited terms would encourage the kind of natural ambition among state legislators that would command their attention to national affairs, while the flow of state legislators (or other state officials) to the Senate, with the foreknowledge that they would be returning to the state as citizens would reinforce the interests of the state.
The Senate’s slide to popular democracy unyoked states and the national government in a way that has left the states nearly powerless to defend their position as other legitimate representatives of the people. As the United States moved into the Twentieth Century, it was inevitable that Congress would aggressively exercise power over matters such as commerce and spending for the general welfare in ways that no constitutional prophet would have foreseen. The lack of foresight of the circumstances under which Congress would exercise its powers did not excuse our failure to maintain those constitutional structures that assure the tempered, essential use of such powers. When we loosed ourselves from the mast to answer the Sirens’ call, we unleashed consequences only Circe could have foreseen.
Reference: Bybee, J. S. (1997). Ulysses at the Mast: Democracy, Federalism, and the Sirens’ Song of the Seventeenth Amendment. Scholarly Commons @ UNLV Law, 501 – 567.