Repeal the 17th Amendment!

Count me with Ilya Somin as someone who has never really agreed that eliminating the 17th Amendment is going to rebalance our federal system away from federal power. Professor Somin writes:

The claim that senators chosen by state legislatures would act to curb the feds relies on the assumption that state governments oppose federal power. In reality, however, they often have a strong interest in supporting it, a point John McGinnis and I drive home inthis article. For example, state governments love federal grants that go to them and constantly lobby for additional federal funds. They also like federal regulations and spending programs that reduce competition between state governments and benefit interest groups that have influence at the state level.

I think there’s a tendency among folks to wish there was a simple, clean fix to the problem. “We just have to change this one thing, then everything would be fine.” or to retrospectively look back on history and say “Ah ha! Here’s where we went wrong.”

But political systems are really only as good as the people who participate in them. If the history of freedom and liberty in this world has taught us anything, it’s that the struggle to preserve it is unending and relentless. There is no easy fix. No magic cure that can automatically rebalance everything for us. If we want small government, we have to struggle for small government, and never stop. More importantly, and this is where Libertarians have fallen down, we have to struggle for it in a serious way that recognizes the reality of the system we’re working in.

The fundamental reason we got big government is the people stopped believing in small government. You won’t get small government back until you recognize that’s your starting point.

27 thoughts on “Repeal the 17th Amendment!”

  1. Tiahrt is a funding rider, which is preventing the government from releasing trace data to, say, Bloomberg. Funding riders also prevent NICS being used to create a back door registry. The whole deal to prevent the military from destroying brass? Also a funding based restriction.

    There’s probably more, but these are the ones I know of off the top of my head. Obviously, we’d rather get these codified into law at some point, but for now we’ve been able to get these inserted into the budget for a number of years. If you give the President a line-item veto, you put all of these at risk.

  2. Yeah, the anti-17th Amendment folks kind of lose me with the argument that popular election of Senators is the reason the Federal Government dwarfs the states. The real reason is that Federal revenue dwarfs state revenue. The feds do everything because they’re the only ones with the resources to do most things. I don’t know how you’d fix that problem, though a stricter interpretation of interstate commerce would be a good start.

  3. Ironically, the 17th Amendment was an attempt to fix problems caused by state legislatures choosing Senators (or failing to choose Senators, in some cases). The solution fixed many of the original problems, but seems to have created a different set. Like Sebastian said, there’s no easy solution.

    As far as the line-item veto goes, remember the DC voting rights bill? Unless you restrict it to funding bills, that unconstitutional law would have passed, but the gun rights amendment would have been vetoed out of it. I’m sure others can think of more examples using bills that did pass.

  4. I am for “Individual Rights” not State rights. States can be as, and in many cases, more abusive of rights than the Federal government.

    I am of the opinion the Federal government is responsible for protecting our borders and ensuring that no state tramples the fundamental rights of the individual. It serves no real purpose beyond that – or it shouldn’t.

    I am rather fond of Heinlein’s proposal. The House of Representatives would pass laws with a 2/3 majority. Because if you can’t get at least 2/3 to agree on it, than it’s probably a bad law.

    Where as the Senate would not pass any legislation. Rather, they would revoke legislation. With a requirement of a mere 1/3 to revoke a law. Because if more than a 1/3 don’t approve of a law – it’s probably a bad law.

  5. But why is it the right thing to do? Passing an amendment is a herculean task. I wouldn’t suggest repealing one lightly. We’d probably be better off passing an amendment that clarifies Congress’ powers over interstate commerce.

  6. Lots of reasons. I could list them, but…

    Of course there is plenty of ways to screw things up after a repeal, even if I snapped my fingers and mafe the 17th disappear like magic right now. Still, it brings the structure of the federal gov’t more in line with the original checks and balances.

    I don’t see a repeal being such an advantage to one-issue voters interested in strengthen gun rights, particularly.

  7. Hello, has anyone stopped to consider what the founding fathers were trying to do when it came to states rights?

    One house to represent the people, the other to represent the State.

    Citizens had the option of replacing their Representatives every two years, the State had the option every six years. If a Representative of the people died or retired while in office an election by the people would be held. If a Senator was extinguished then the Governor of the Senators State would appoint a replacement.

    Go back and read Article 1 Section 4, and then ask yourself if the 17th Amendment holds true to the instructions given in the Constitution as to the SENATE.

    Had I been alive up to 1912 and read the Constitution in the light of day I would have understood Article 1 Section 4…….Congress will keep its stinky hands off where the Senate is elected. Yet in 1910 the Federal Government pulled a fast one on the States and circumvented the Constitution and allowed the Congress to pull the off the 17th Amendment……Remember, Congress was forbidden in the Constitution to change the place of election, ergo if forbbiden then Congress was barred from voting the 17th into Law even if all the States had voted it up. Article 1 sec 4 is a true STALEMATE in Congress.

    I will not bore you with the fact that if we kick out the vote of a non State (W. Virginia) in 1912 That the Admendment would have failed…..What do I mean NON STATE…State admitted outside the parameters of the Constitution…..darn Civil War and BONUS points to the person who remembers how long it took West Virginia to really become a valid State.

  8. First, state do NOT have rights, they have powers. Now back to the main topic.

    The big problem with repealing the 17th amendment is It becomes cheaper to become a senator than to run for representative.

    This was the original problem in the early 20th century. Rather than go though the cost, time and hassle of running for state representative, powerful men would just “convince “ their buddies in state govt to appoint said powerful man. One guy even delivered monogramed envelopes of cash to “convince” people in another state to appoint him.

    The only real flaw inherent in our government (via the Constitution) is that it is easier to pass a law than to repeal a law. If it did not take so much political capital to repeal a law, then many bad laws would be taken off the books.

  9. “The only real flaw inherent in our government (via the Constitution) is that it is easier to pass a law than to repeal a law. If it did not take so much political capital to repeal a law, then many bad laws would be taken off the books.”

    I agree. I propose a constitutional amendment that reads. “No law made by Congress, shall be effective for more than 25 years after the date it becomes effective, without it being approved by Congress again at that time, and continuing every 25 years after that. This shall include laws which create regulatory agencies, or direct how such agencies shall use their powers.” This would essentially give all federal statutory laws a sunset clause, meaning that bad laws could simply be repealed by failing to renew them.

  10. “Sunset would be easily defeated by routine reauthorization of everything, much like military reauthorization.”

    Of course it could, but if congress at least has to look at laws every 25 years, then there is more opportunities for opponents to come forward and make their case that the law is bad. They’d benefit from having actual evidence collected, not just theorizing about what the law could do. Under the current system, a bill to repeal something can also be quietly killed in committee, or become the victim of a Senate filibuster, even if it might achieve a majority in both house. Under a sunset clause, such parlimentary tactics would work for repeal, not against it. Also, even if the vast majority of laws were routinely reauthorized, then congress would spend more time on those that could not be used creating new laws, which ought to have some benefit in itself. But I think if a law was routinely reauthorized, it’s probably quite popular anyway, so I’m not sure there is a good way to stop it.

  11. I vote for repeal of the 17th because of the bread and circuses promises campaigns use to obtain the people’s votes. The Founders felt that State Legislators would be more resistant to such blatant politicking and more inclined to choose someone with a loyalty above his own interests in power and wealth.

    I like the 2/3 and 1/3 idea. The harder it is for Congress to add more 2000 page statutes (they’ve never read) to the books, the better.

    Re: the sunset clause, thank God there was one attached to the Clinton AWB!


  12. “The real reason is that Federal revenue dwarfs state revenue. ”

    Exactly. Which indicates that it’s the 16th Amendment we need to repeal.

  13. Do I think it would fix everything? No.

    Do I think it’s likely to happen? No.

    I think the federal graduated income tax is unlikely to be repealed in my lifetime, too, but that doesn’t keep me from saying that I think it licks sweaty donkey ‘nads, either.

  14. “but if congress at least has to look at laws every 25 years”

    Sorry it won’t work.
    The first five minutes of day one of the 2050 congress with have a vote to re-approve ALL laws from 2025. Do you really think the power hungry sumbitches are going to discuss each law over the next year? They don’t even do that now!

    The problem you want to solve so badly is why that solution will not work. And I wish I was wrong.

    Furthermore, why wait 25 years?

    A system needs to be able to repeal a bad law the day after it is passed to be useful.

  15. Interesting point about funding riders, but how many of the ones we care about were actually signed by anti-gun Presidents who might otherwise have line-item-vetoed them? The Tiahrt Amendment is permanent law now; every preceding appropriations version was signed by GWB.

  16. “Furthermore, why wait 25 years? A system needs to be able to repeal a bad law the day after it is passed to be useful.”

    True. But it’s better to have a system that can make it easier to correct at some point if a bad law is passed. And we know sunset clauses have worked with some laws. Also, many times laws aren’t obviously bad until years after they’re passed, but at this point they’ve already developed constituencies that will lobby strongly to keep them. So what we need is a way to make it easier to repeal bad laws. I’m not really seeing anything else useful other than the 2/3 and 1/3 idea.

  17. “The first five minutes of day one of the 2050 congress with have a vote to re-approve ALL laws from 2025.”

    There’s a simple fix for that. Require that every proposed law, and every proposed regulation that will have the force of law, be read, in its entirety, before a quorum of both chambers, twice. That is, make the first and second readings of the bills be actual readings of the bills.

    If we have to live by them, the least they could do is listen to them read.

    And then we limit the session to July and August, every other year, and outlaw air conditioning in federal buildings in DC.

  18. That’s a formula for fewer pages on the law books, not for better laws. Don’t assume fewer laws means more individual liberty; it does not. A legislative body that is rushed for time and forced to read everything is less likely to pass an extensive bill reading “No personal shall possess a firearm in a restricted area without sufficient cause. For purposes of this article, ‘restricted area’ means blah blah blah, “sufficient cause’ shall mean yadda yadda. It is in affirmative defense to a violation of this article if blah blah blah blah friggin’ blah” and more likely to throw up their hands and adopt a much shorter, simpler one like “no person shall possess a firearm.”

  19. Let me see…

    A good idea that won’t work because people will try to cheat it, can be made to work if only there is enough complexity added to the issue that compliance becomes impractical. After all, is the law is to too complex to obey, it must be even harder to break.

    Good thing we are talking about congress here. Not like they would pass a law bypassing anything. [sarcasm]

    You do realize that bills can be read aloud when few if any reps are there to hear them, don’t you?

  20. I’m all in favor of repealing XVII (and pretty much the rest of the post-Reconstruction Amendments as well) but I’m not naiive enough to think it’s a panacea.

    It would be a start, not an end.

  21. 17th amendment *trailed* public opinion, IIRC. IE, it was (in essense) already being enacted at the state levels (legislatures binding themselves to appoint the winner of a popular vote) prior to ratification of the amendment. Repeal of same won’t fix the problem – which is an omni-present federal bureaucracy and omni-intrusive federal rulemaking. I was on a bus nominally belonging to a state college and noted a sign that said (paraphrased) “it is a vilation of federal law to stand ahead of the yellow line while the bus is in motion.” That won’t be fixed by changing how senators are put in the Senior Chamber…

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