Debating the 17th Amendment

The New York Times' David Firestone takes a critical look at the efforts among some Tea Party activists to repeal the 17th Amendment, which provides for the direct popular election of U.S. Senators:

Allowing Americans to choose their own senators seems so obvious that it is hard to remember that the nation's founders didn't really trust voters with the job. The people were given the right to elect House members. But senators were supposed to be a check on popular rowdiness and factionalism. They were appointed by state legislatures, filled with men of property and stature.

A modern appreciation of democracy — not to mention a clear-eyed appraisal of today's dysfunctional state legislatures — should make the idea unthinkable. But many Tea Party members and their political candidates are thinking it anyway, convinced that returning to the pre-17th Amendment system would reduce the power of the federal government and enhance state rights.

That's precisely the point Judge Andrew Napolitano made when I interviewed him about his new book Lies the Government Told You. Here's his argument against the 17th Amendment:

Reason: You end the book with a call for a "major political transformation." What is the single most important reform?

Napolitano: I would repeal the 17th Amendment [which provides for the popular election of U.S. senators]. Can an amendment to the Constitution itself be unconstitutional? Yes, that one. If you read Madison's notes from the constitutional convention, they spent more time arguing over the make-up of the federal government and they came up with the federal table. There would be three entities at the federal table. There would be the nation as a nation, there would be the people, and there would be the states. The nation as a nation is the president, the people is the House of Representatives, and the states is the Senate, because states sent senators. Not the people in the states, but the state government. When the progressives, in the Theodore Roosevelt/Woodrow Wilson era, abolished this it abolished bicameralism, the notion of two houses. It effectively just gave us another house like the House of Representatives where they didn't have to run as frequently, and the states lost their place at the federal table.

That was an assault, an invasion on the infrastructure of constitutional government. Even kings in Europe had to satisfy the princes and barons around them. And that's how they lost their power, or that's how their power was tempered. Congress believes it doesn't have to satisfy anybody. Its only recognized restraint is whatever it can get away with.