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Senate Vacancies Raise Questions of Framers’ Intentions

First, if the primary purpose of the 17th was to eradicate corruption from Senatorial selection, it failed brilliantly at doing so. Far too many contemporary examples exist to suggest otherwise. Corruption will always be a part of politics and must be dealt with aggressively, but altering the foundational structure of the Constitution in order to wave a hand at corruption was profoundly misguided.

Second, the purpose of the Constitution is to establish a government of the people, by the people and for the people, but the framers did not intend to make the federal government an instrument of mob rule. The long history of failed civilizations taught them that democracy has practical limits, and those limits include a majority’s tendency to disregard minority views and financial bankruptcy.

The Senate was designed to serve the people, but not as a democratic body. Some have suggested that this was because the framers — as elitists — distrusted the people. There is little evidence to back this up. The framers each came from states where almost every feature of the state government — from the governor to the local magistrate — was democratically determined, and the framers made the will of the people well-represented in the House. It certainly was not the case that after fighting a war of independence from titled privilege, they wanted to secure a place for an aristocracy they all despised, as is suggested by others. The framers made the Senate a non-democratic body because they believed that when democracy’s limits are reached, citizens lose their liberty and governments go broke.

So what are the implications of the 17th on the 2009 vacancies? Consider Massachusetts. Without the 17th Amendment, the democratically elected Massachusetts Legislature could have met on the day following Sen. Edward Kennedy’s (D) death and selected his replacement at very little cost to the taxpayers of Massachusetts. The new (Democratic) Senator would be charged with representing the interests of the state government, including that government’s inclinations toward health insurance reform. In the course of the health care debate in the Senate, if the state Legislature came to believe that the financial burdens of national reform would affect the people of Massachusetts disproportionately — and thus unduly diminish the resources of Massachusetts — then the new Senator would be advised to advocate for a more just distribution of those costs. The Senator from Massachusetts would almost certainly vote against any provision (in any bill) designating unfunded mandates to the states. If the state of Massachusetts determined that the state government could provide better, more efficient managed health care than the federal government to the benefit of its citizens, it would have an immediate, significant voice in the Senate with which to say so. Without the 17th, the people of Massachusetts win.

By repealing the 17th, the nation would restore a meaningful part of the framers’ original design for federalism. The responsibility for the quick and just selection of Senators becomes that of a democratic body in each state, providing a meaningful check against hot-headed, confrontational government. It worked well for more than 120 years. What is the harm in reconsidering the framers’ original plan?

John W. Truslow III is director of the Campaign to Restore Federalism.

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