Don’t Add Amendments, Repeal Them

Darrell Dow

“Conservatives” claim to revere the Constitution, and yet they always seem to be carrying around a bag full of amendments they would like to tack on.  So I was shocked, shocked I say, several months ago when “pro-family” conservatives and prominent spokesmen on the religious right began agitating for a constitutional amendment to define marriage.   (Not all conservatives bought into this, by the way.  Read Tom Fleming, Dave Black, and see this piece on Judge Roy Moore). 

That the Constitution already provides a mechanism for congress to circumscribe the appellate powers of the federal judiciary, which is the root of this particular problem, and that a constitutional amendment had no chance of passing anyway, did not matter to these savvy and shrewd strategists.  With geniuses like this leading the “movement,” it is no wonder that the Left, whether called Democrat or Republican, continues its political and cultural hegemony. 
 
My mailbox has been stacked to the gills lately with email “alerts” from Focus on the Family, the Christian Coalition, and others urging me on to fight the good fight restoring civilization by sending a fax, email, or letter, to Dick Lugar and Evan Bayh encouraging them to “stand up for marriage.”  Oh, and one more thing—could you please send us a check.  For Christians, this is what the cultural mandate, the command to subdue the earth for Christ, has been reduced to.  
 
In any event, I don’t really want to rant and rave about gay marriage, reigning in the imperial judiciary, or the sad state of the Church. There will be plenty of time for that on other occasions.  Rather, I would like to make the case that instead of adding amendments to the Constitution, authentic conservatives should be working for the repeal of existing monstrosities. 
 
For example, let’s repeal the 17th Amendment!   Huh, you say?  The 17th Amendment?  What’s Darrell been smoking, anyway?  What’s wrong with the direct election of senators?  Do you hate democracy?
 
Well, frankly, there is quite a lot wrong with the direct election of senators if you recall that the Founders were most interested in preventing the flow of power to a centralized state.  Though today an insatiable judiciary and an overweening executive branch largely govern us, the original intention of the Founders was to make the law-making legislature the preeminent institution of the new government.  Even here, however, they were interested in limiting power.  While the House of Representatives was elected directly by the people, senators were selected by individual state legislatures.  The assumption was that if two bodies, serving two different constituencies (“the people” and the individual states, respectively) with two different sources of power, could concur on legislative matters that the eventual outcome would be in the public interest.
 
James Madison, in Federalist 10, put it this way: “In republican government, the legislative authority, necessarily predominate. The remedy for this inconveniency is, to divide the legislature into different branches; and to render them by different modes of election, and different principles of action, as little connected with each other, as the nature of their common functions and their common dependencies on the society, will admit.”
 
Overturning this system took quite a long time.  There was a clamoring in some circles for the direct election of senators as early as the 1820s, but the change did not take place until the “Progressive Era” in 1913.  The conventional wisdom is that the 17th Amendment was needed because the political process had become increasingly corrupt and because “the people” had no say in whom their senators would be.  In fact, candidates for state legislatures usually declared whom they favored for the U.S. Senate. 

Moreover, it was moneyed interests that most benefited from the 17th Amendment.  The Framers initially set up our system to thwart factions from controlling the legislature.  Under the original framework, special interests had great difficulty influencing the system because they could not easily manipulate multiple state legislatures.  It turns out that it is far easier to control the political process by appealing directly to the electorate.  Direct elections advanced the interest of the elite because it maximized the value of that ever so important element in mass electoral politics—money. 
 
It is also obvious that the change was a detriment to the states and an important part of dramatically changing the role of the federal government.  Though critics of the modern welfare-warfare state usually blame LBJ or perhaps FDR for the radical increase in the size and scope of government, it is actually the 17th Amendment, along with the income tax and the creation of the Federal Reserve, both also in 1913, which were the driving force behind federal expansion.   Not coincidently, shortly after these two amendments, Wilson dragged the U.S. into the “war to end all wars.”

If Republicans and conservatives really want to restore constitutional principles, let them repeal unnecessary, harmful amendments rather than adding them.

July 19, 2004

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