Conservatism / Constitutional Rights / Politics

Why 17 Is A Corrupt Number

Greetings and salutations dear conservative reader.  The author of Hard/Right has invited me to join him in this blogging adventure, and I thank them kindly for the opportunity to reach out to you about those things that are near and dear to my heart concerning conservative values, the constitution, and politics in general. I am what some might refer to as a heart-on-the-sleeve conservative.  I am passionate about my conservatism, so be prepared to read much of that in my prose.  I am also a considerate conservative by which I mean that I consider my positions from multiple viewpoints and where possible try to approach them with both passionate and logical voices so prepare also to read somewhat of that in my postings.  Hopefully we together, dear reader, will explore the various ways to be conservative , become more informed about conservatism, and along the way enjoy each others company and have a bit of fun.  Most first posts to blogs, or to facebook pages or books or other forms of communication begin with simple concepts.  However, since you dear reader are clearly a more advanced audience, I will start with something a bit more advanced and a bit more complex, because I believe that you dear reader are here for a bit more in depth look than the fare you have digested so far.  Rather than start with an aperitif let us begin with an entree.

Today’s foray into the conservative body politic begins with an egregious error committed by the urgings of one of the worst and most progressive presidents this country has ever had.  A Democrat with socialist tendencies that would have made the current occupant of 1600 Pennsylvania Avenue blush, 28th President of the United States Thomas Woodrow Wilson. He was aided and abetted by the media of his day, and by his party, certainly, but also by those who should have been holding the banner of conservatism high, Republicans, who would have had Lincoln spinning in his grave, in both the House and the Senate.  Most importantly though in the Senate and you will see why momentarily.  This egregious error I speak of today is an abomination that somehow was adopted into the fabric of our society and reached in to the body of the federal constitution and removed with a grasping tearing hand one of the political voices of the country, one of the very pillars on which the country was founded.  I write to you today of course on the subject of the 17th Amendment.

I will provide for the reader the text of Article I Section 3. Then I will provide the reasoning given by one of the founders for the system that existed from the ratification of the federal constitution until 1913 and then I will provide for you dear reader the mythological and often illicit reasons given for the passage of the 17th amendment.  First the text of Article I Section 3:

The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.

Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.

No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

The Vice President of the United States shall be President of the Senate but shall have no Vote, unless they be equally divided.

The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

This section describes who can be a senator, how old they must be how long they have to be a resident of the state in which they represent how long a term lasts, how many senators from each state and whether or not each state has equal representation in the senate and what the process is when there arises a vacancy. It then goes on to describe the powers and duties given to the least numerous branch including impeachment (elsewhere in the constitution is described the authority to advise and consent on ambassadors appointed officials justices and other official choices of personnel by the sitting administration.

I would also have you dear reader consider the fourth section of Federalist Papers #62 authored by Madison as that goes directly to the changes made in 1913:

The number of senators, and the duration of their appointment, come next to be considered. In order to form an accurate judgment on both of these points, it will be proper to inquire into the purposes which are to be answered by a senate; and in order to ascertain these, it will be necessary to review the inconveniences which a republic must suffer from the want of such an institution.

First. It is a misfortune incident to republican government, though in a less degree than to other governments, that those who administer it may forget their obligations to their constituents, and prove unfaithful to their important trust. In this point of view, a senate, as a second branch of the legislative assembly, distinct from, and dividing the power with, a first, must be in all cases a salutary check on the government. It doubles the security to the people, by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one would otherwise be sufficient. This is a precaution founded on such clear principles, and now so well understood in the United States, that it would be more than superfluous to enlarge on it. I will barely remark, that as the improbability of sinister combinations will be in proportion to the dissimilarity in the genius of the two bodies, it must be politic to distinguish them from each other by every circumstance which will consist with a due harmony in all proper measures, and with the genuine principles of republican government.

Second. The necessity of a senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions. Examples on this subject might be cited without number; and from proceedings within the United States, as well as from the history of other nations. But a position that will not be contradicted, need not be proved. All that need be remarked is, that a body which is to correct this infirmity ought itself to be free from it, and consequently ought to be less numerous. It ought, moreover, to possess great firmness, and consequently ought to hold its authority by a tenure of considerable duration.

Third. Another defect to be supplied by a senate lies in a want of due acquaintance with the objects and principles of legislation. It is not possible that an assembly of men called for the most part from pursuits of a private nature, continued in appointment for a short time, and led by no permanent motive to devote the intervals of public occupation to a study of the laws, the affairs, and the comprehensive interests of their country, should, if left wholly to themselves, escape a variety of important errors in the exercise of their legislative trust. It may be affirmed, on the best grounds, that no small share of the present embarrassments of America is to be charged on the blunders of our governments; and that these have proceeded from the heads rather than the hearts of most of the authors of them. What indeed are all the repealing, explaining, and amending laws, which fill and disgrace our voluminous codes, but so many monuments of deficient wisdom; so many impeachments exhibited by each succeeding against each preceding session; so many admonitions to the people, of the value of those aids which may be expected from a well-constituted senate?

A good government implies two things: first, fidelity to the object of government, which is the happiness of the people; secondly, a knowledge of the means by which that object can be best attained. Some governments are deficient in both these qualities; most governments are deficient in the first. I scruple not to assert, that in American governments too little attention has been paid to the last. The federal Constitution avoids this error; and what merits particular notice, it provides for the last in a mode which increases the security for the first.

Fourth. The mutability in the public councils arising from a rapid succession of new members, however qualified they may be, points out, in the strongest manner, the necessity of some stable institution in the government. Every new election in the States is found to change one half of the representatives. From this change of men must proceed a change of opinions; and from a change of opinions, a change of measures. But a continual change even of good measures is inconsistent with every rule of prudence and every prospect of success. The remark is verified in private life, and becomes more just, as well as more important, in national transactions.

To trace the mischievous effects of a mutable government would fill a volume. I will hint a few only, each of which will be perceived to be a source of innumerable others.

In the first place, it forfeits the respect and confidence of other nations, and all the advantages connected with national character. An individual who is observed to be inconstant to his plans, or perhaps to carry on his affairs without any plan at all, is marked at once, by all prudent people, as a speedy victim to his own unsteadiness and folly. His more friendly neighbors may pity him, but all will decline to connect their fortunes with his; and not a few will seize the opportunity of making their fortunes out of his. One nation is to another what one individual is to another; with this melancholy distinction perhaps, that the former, with fewer of the benevolent emotions than the latter, are under fewer restraints also from taking undue advantage from the indiscretions of each other. Every nation, consequently, whose affairs betray a want of wisdom and stability, may calculate on every loss which can be sustained from the more systematic policy of their wiser neighbors. But the best instruction on this subject is unhappily conveyed to America by the example of her own situation. She finds that she is held in no respect by her friends; that she is the derision of her enemies; and that she is a prey to every nation which has an interest in speculating on her fluctuating councils and embarrassed affairs.

The internal effects of a mutable policy are still more calamitous. It poisons the blessing of liberty itself. It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?

Another effect of public instability is the unreasonable advantage it gives to the sagacious, the enterprising, and the moneyed few over the industrious and uniformed mass of the people. Every new regulation concerning commerce or revenue, or in any way affecting the value of the different species of property, presents a new harvest to those who watch the change, and can trace its consequences; a harvest, reared not by themselves, but by the toils and cares of the great body of their fellow-citizens. This is a state of things in which it may be said with some truth that laws are made for the few, not for the many.

In another point of view, great injury results from an unstable government. The want of confidence in the public councils damps every useful undertaking, the success and profit of which may depend on a continuance of existing arrangements. What prudent merchant will hazard his fortunes in any new branch of commerce when he knows not but that his plans may be rendered unlawful before they can be executed? What farmer or manufacturer will lay himself out for the encouragement given to any particular cultivation or establishment, when he can have no assurance that his preparatory labors and advances will not render him a victim to an inconstant government? In a word, no great improvement or laudable enterprise can go forward which requires the auspices of a steady system of national policy.

But the most deplorable effect of all is that diminution of attachment and reverence which steals into the hearts of the people, towards a political system which betrays so many marks of infirmity, and disappoints so many of their flattering hopes. No government, any more than an individual, will long be respected without being truly respectable; nor be truly respectable, without possessing a certain portion of order and stability.

This reasoning as you can see is fairly logical and gives the disadvantages of other choices for the election of senators as well as the advantages to the chosen system. Now I will embark on the 17th amendment and why its passage and ratification were egregious and damning mistakes (entirely avoidable) and then on to some of the more well known myths concerning its passage. The text of the 17th amendment modifies Article I Section 3 by changing the way they are elected:

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect that the election or term of any Senator chosen before it becomes valid as part of the Constitution.

The text changes the “voice” of the senate. Prior to the passage and ratification of this amendment, the senators provided a “voice” that came from the state governments (and it should be noted that it also held check on outside influence as well as kept the senators feet on the straight and narrow path when it came to the wishes of the legislatures of the Individual States). After passage and ratification it became a voice for the people (or more appropriately it became a voice that could argue against the States and this as we shall see tends to corruption and frustration of the political Representative Republican Government). That is a good thing right? Wrong! Here is why. Our federal government is comprised of competing voices, voices that provide tactical and strategic counters to the other voices of government. The House has a voice The Senate has a voice The Executive has a voice, and the Judiciary has a voice. But have you ever asked yourself for whom  each of those voices speak?  Let us see if we can determine that.

Let us start with the executive branch of government. The President.  That position which takes action and enforces the law.  From the powers and authorities listed in the constitution it seems to me that he speaks for the nation as a whole,  where one voice is needed, or where many voices might be too slow to respond properly. He speaks to other countries on our behalf. He commands the Armed land and naval forces. He can make treaties can approve pardons for federal crimes. Can any of the other voices do those things and more importantly should they? The clear answer here is no they cannot nor should they for the powers of the Executive branch are plenary in nature and often require swift decisive actions to be taken.

On to the judicial branch. They have a voice as well but for whom do they speak? The robed members of the Supreme Court of the United States supposedly speaks for and on the Constitution. They give voice to the text of that document and they provide (or are supposed to provide) learned and wise interpretation of the intent and text of the federal constitution as well as determining whether or not legislation passed by Congress and Signed by the President is in line with the spirit and letter of the federal constitution.  Oddly enough the thought was that the Supreme Court (along with the inferior federal and state courts) were not given either plenary nor economic powers.  On actions they were not even given the authority to enforce their own opinions.  This is because of the nature of the judiciary.  Because the members of the Supreme Court are appointed for life terms while they continue in good behavior, they are not impacted directly by the electoral process.  This puts them out of reach of the people, but that is probably a good thing.  Simply because to have it otherwise might put pressure on the members to align with one party or another to retain themselves and their position.  Their real purpose is not to be answerable to the people, nor even to the law, but to represent the voice of that blindfolded gal with the scales.  Justice.  They speak for or against the laws that are passed by the other branches on the merit of the law and of that merit exclusively.  This makes them, were they given the power to enforce, the most powerful branch of government, and that the founders realized was incorrect and that it would quickly tend toward corruption and tyranny from the court (Roe vs. Wade, Plessy v. Ferguson, Brown v. Board of education are all examples of mistakes and tyranny made at the judicial branch that have altered the face of the Republic in which we live and to which we owe allegiance and fealty).

Lastly we come to the legislative branch. Congress has a voice as well and they speak for? Well that is an interesting question isn’t it? Because now presumably they speak for the people. Certainly the people need a voice.  Hold on a second though let us ask a question that I think many of you dear readers have on the tip of your tongue. If there is only a need for one voice, that of the peoples, why are their two houses?  Why does Article I set them at odds to each other by allowing one house to preside over and advise and consent on treaties ambassadors Secretary of State, Defense, etc and justices, and the other is given power over the purse (by ensuring that all bills that appropriate money from the federal government arise first in The lower most numerous branch of congress)? Those seem like pretty much opposite authorizations to me.  Opposite voices.  If they are so different then why should those voices come from the same head?  How can one be accountable to the people and the other also accountable to the people.  Why not just have one that is accountable to the people?  Unless…Is there a voice we have missed?  Is there a party to the constitution that we have not heard from?

If both houses of congress are indeed speaking as voice for the people, Why not do away with one or the other house and save ourselves some time money and effort not to mention either 100 or 435 (depending on which house you get rid of) salaries at the federal government?

I think I know why and if you have been alert throughout this soliloquy then you have already seen why. But just so we are clear: The reason that there are two houses in congress is that there exists a voice that under our current system is not represented or very poorly represented. That voice of course is the one party to the compact that next to the voices of the people should be as loud and as well understood as the peoples voice. Larger than the voice of the people individually through the House.  More powerful than the voice of the people as a whole backed up by the power of the sword, and able to take swift meaningful action when necessary, the President. This party to the contract needs to be at least as powerful as those other voices.  It is the voice of the States.

You see it is not just a compact between the Federal Government and The People. It is a compact between the Federal Government The States and The People. It is this section of the 17th Amendment that is problematic: “The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. ” Elected By The People. But isn’t the people’s voice in the law and the creation of laws already heard in the form of The House of Representatives?  Why then should The States give up their voice so that The People should get a second one (really a third voice if you consider the President to also be a voice of the People)? The obvious answer is that they should not. The States should not cede power of that nature nor the duty to exercise it to either The Federal Government or to The People (who when taken collectively are already represented by the Executive Branch and taken individually by The House of Representatives).

So why then the 17th Amendment? The answer is not obvious until you see the results.

Prior to the passage of the 17th in 1913 there existed several political parties. Republican, Democrat, Whig, Federalist, Anti-Jacksonian, Jacksonian, Jefferson Republican, Pro Administration, Anti Administration.

After Passage of the 17th in 1913 you were either Democrat or Republican or you caucused with one or the other parties (this includes the Farm Labor Party and the American Labor Party during the Roosevelt/Truman/Ike Years)

Why the shift to two parties? Because it is much easier to hide wrongdoing ineptitude arrogance, fecklessness, corruption, tyranny and other uniquely undesirable traits by having both a co conspirator in wrongdoing AND a patsy to point the finger of blame at. If there isn’t a third party in the room to call you on it then you are much more apt to be successful in your corruption and tyranny.

Myths about the 17th Amendment:

MYTH: By instituting direct elections of senate seats the people’s voice grew stronger and so there is more chance at limiting the power of the Federal Government.

Reality: One party or the other will dominate and gain advantage by direct elections. The reasoning is simplistic but true. Money talks BS walks. Since one third of the Senate is elected every two years and there are three classes of senators that means that senators from each of the three classes will be elected every two years. The way the senate classes are broken out no state has an election for both seats in the senate in any two year period unless a vacancy occurs in the same year as the election. Before the election but after the last general election a state that has one senate seat up for election under normal circumstances will not have the other seat up for election for at least two years, and if both senators from a state have been up for election in successive elections the following election cycle will not see that state vulnerable to change of party for a further two year period. If the state legislatures elect the senators this protects the voice of the outgoing party of that state for a minimum of two years (the length of time of a state legislature election cycle) and a maximum of six years.  This protects the voice in Congress of that state (it is also why Article V of the constitution compels the equal suffrage in the senate of every state).  If it is done by the people or by or through political parties though those with the most money and influence on a national scale can decide who the senator for a given election cycle for a given state will be by feeding money to that candidates campaign. If you can outspend and out-campaign your opponent then you can defeat him. If you get that money from another state or from overseas? It doesn’t really matter does it?  Well in reality it matters a great deal.

MYTH: The 17th was really just an acknowledgement of the process in most of the states by that time anyway.

Reality: The party that controlled the state legislature chose who got to go to Washington. However, Party infighting intrigue and variation of views, and the fact that the state legislatures were beholden more closely to the people than at the federal level, assured that the system in place prior to 1913 was the better choice (even in light of Montana Copper Mine Baron’s and Teapot Dome Scandals shenanigans) and there was a deal more variation than the myth asserts.

MYTH: The 17th protected the vote of the people.

Reality: The 17th hurt the voice of the people by not allowing the fourth voice in the compact (The States) to speak. By robbing the compact of that fourth voice The federal government must grow in power and expanse. You get corruption of the political process.  You get more You get what you have today.

Conclusions:

The political process wrought by the founders can be thought of as a kinetic sculpture that expends energy but that does not get much done.  Each of the branches exists as both a help to and a frustration of and a filter for the other branches, such that those actions that are taken, those laws that are written and those opinions that are rendered, are the best possible actions, laws, and opinions that the system can produce.

The political voices that are heard are those of the people as a whole a majority of the people yet with care that the liberty of the individual is not thwarted.  We do not live in a democracy.  Nothing further from that was the vision of the founders.  They knew that a true democracy was chaos that would soon be supplanted by tyranny.  So they eschewed a democracy as our form of government.  They instead opted for a Constitutional Republic that sought through the mechanism of self interest and differentials to thwart mob rule or Representative Democracy (a nicer term than Oligarchy which is what a Representative Democracy is)  where the majority rules, and to set up for us a Constitutional Representative Republic that would have as its singular reason to exist as a protection of the liberty of the individual, while giving all individuals and groups a voice and a duty and responsibility in the management of their selves and their country.

By removing the voice of the States from the table we remove that check and balance against the tyranny of the majority.  We also corrupt the political process, to such and extent that the public soon loses its responsibility for and duty to the protection of those liberties of the individual in favor of benefits granted to them from a federal government that is no longer restrained by the superior power of the states.

To my mind he best way to prevent the current political corruption and nascent tyranny from maintaining a stranglehold on We The People as individuals is to allow the voice of the States to be heard again.

Repealing the 17th amendment and obligating senators to the States would go a long way to correct the ills that beset us on all sides now.