Repeal the 17th Amendment?
2012-06-23 · Guest: Todd Zywicki (Professor of Law at George Mason University) · 50:34
The 17th Amendment and the Death of Federalism
Bob Zadek and Professor Todd Zywicki discuss the historical and constitutional impact of the 17th Amendment, which shifted the election of U.S. Senators from state legislatures to a direct popular vote. They explore how this change weakened federalism and paved the way for the expansion of federal power at the expense of state sovereignty and individual liberty.
Topics: 17th Amendment, Federalism, Constitutional History, Direct Democracy, Founding Fathers, George Mason University Speakers: Bob Zadek, Todd Zywicki
The Blackest Year in Constitutional History [00:00]
Bob Zadek: You’re listening to the Bob Zadek Show on NewsTalk 910. America, America. Welcome to the Bob Zadek Show every Sunday at noon at NewsTalk 910, 910 AM in the San Francisco Bay Area, www.newstalk910.com. Anywhere else in the civilized world? I’m your eponymous host, Bob Zadek. Thanks so much for listening. We are the leading libertarian talk radio show live in the Bay Area and around the country. We are the show of ideas, not attitude.
What was the year when it all changed for libertarians? What was the year when federalism died? What was the year that paved the way for Obamacare, the New Deal, Medicaid, No Child Left Behind, national drinking age, national speed limits, safe communities, unfunded mandates? What was the year when it all happened? Answers, class, raise your hands. The blackest year in constitutional history. Boo hiss, boo hiss, but also the year in which the 17th Amendment to the Constitution was passed. The amendment that changed everything.
To explain the importance of that year, the 17th Amendment, to explain America’s overinfatuation with, of all things, democracy, I’m delighted to welcome to the show Professor Todd Zywicki. Todd is a professor of law at George Mason University School of Law. Todd has written extensively on the subject of the 17th Amendment. You—if you haven’t spent every day planning the repeal of the 17th Amendment, then this show is crucial to you. You will become so much more interesting at cocktail parties. You will become a sought-after after that speaker, and you will understand the damage caused in 1913 to us and to our country. Todd, welcome to the show.
Todd Zywicki: Thanks, Bob. And I guess I’ve been the master of cocktail parties for quite some time now, then, huh?
Bob Zadek: You have been. You’ve been writing about this. You’ve been writing about the subject of the 17th Amendment for—I guess your first law review article was back in the mid-1990s, when nobody else—
Todd Zywicki: 20 years ago. And I must say, in your footnote, where you thanked all the folks who helped you, including Professor Boudreaux and lots of others at GMU, I was so envious that you had the opportunity to work with these wonderful professors and scholars at GMU, although you weren’t at GMU at the time, I don’t think.
Todd Zywicki: Not at that point.
Bob Zadek: And what’s interesting in your bio is you’re at GMU now, and you studied—I think you went to law school at the University of Virginia, which if I’m not mistaken is the college that Jefferson had a hand in.
Todd Zywicki: That’s right. He founded the University of Virginia; it’s on his tombstone.
Bob Zadek: So you were early in life getting the good vibes from some of our strongest founders—sorry. Now, Todd, the show is about the 17th Amendment. I rattled off a litany of hateful—for us libertarians, hateful—legislation and federal governmental policies. Tell us about the 17th Amendment and why everything from Obamacare to No Child Left Behind all has its roots in an amendment passed in 1913.
The Original Design of the Senate [04:15]
Todd Zywicki: Sure thing, Bob. The way the Senate was originally composed under the Constitution was that United States senators were elected by state legislatures.
Bob Zadek: Not by the people.
Todd Zywicki: Not by the people directly, right? Exactly. What the framers established was a constitutional republic, not a democracy. So they had a system where the various elements of the government would be drawn from different constituencies. They created the Electoral College for the president, the House would be elected directly by the people, judges would be appointed or nominated by the president, confirmed by the Senate without any direct democratic input, and the Senate would be elected by the state legislatures, who, of course, would be elected by the people of their states.
Bob Zadek: But, Todd—trying to interrupt—in other words, there was very little in the operation of our government that really had its roots in direct democracy. The founders were no fans of democracy. In fact, they feared it. And in our country, the people had only one branch of government elected directly by the people.
Todd Zywicki: Exactly. And the way Hamilton said it—and I believe he in one of the Federalist Papers—is dependence on the people is, of course, the foundation of a free society, but the experience of mankind has taught us the importance of auxiliary precautions: separation of powers, federalism, and that sort of thing. And the Senate was the linchpin; it was the key element that knitted this whole system together.
It did two things. First, by being elected by the state legislatures, it was the protection that was built into the Constitution for federalism. The framers clearly thought it would be both a necessary and sufficient condition for the states to be able to be part of the federal government directly, to be able to protect themselves from overreaching by the federal government.
Bob Zadek: And Todd, just for the audience, when Todd and I talk about federalism, what we are talking about is—our country is—the principle of federalism is coequal centers of power both at the states and at the federal government. And federalism assumes the states to be the governmental agency most responsible for the health and welfare of the people, and the federal government was a convenience in order to carry out those governmental roles that the states could not do acting alone. When we talk about federalism, we talk about a state-centric system of government. I’m sorry, Todd. Go ahead.
Todd Zywicki: That’s right. And of course, what they created with the federal government was a government of enumerated powers, powers that were given to the federal government with the repository being in the states. So first was the linchpin of federalism.
The second thing that it was was an important component of the bicameral system. So we have separation of powers between the president, the legislature, and judiciary. And if you read what Madison said about this, Madison said the branch of the government to be feared the most after the experience prior to that was the legislature. And so in order to try to rein in the legislature, not only do we create separation of powers between the three branches, but we divide the power of the legislature into two different bodies, elected by different groups, and thereby kind of put checks on the legislature running amok as well.
And the purpose of that was primarily to frustrate special interests. And so the key to understand this—why the framers constructed a constitutional republic and not a democracy—is they were not about maximizing democracy. They wanted to do two things. They wanted to preserve and further individual liberty, first, and second, constrain the power of special interest and the politicians themselves from commandeering or taking over the government and using it for their own purposes. They were not the democrats.
Bob Zadek: I want to be sure that our listeners out there, Todd, grasp the importance of what you just said. To the founders in building a government, first and foremost was individual liberty, which to them meant freedom from government. Now, that was what the founders had in mind. They did not have in mind, “Let’s build a pure democracy.” Democracy to the founders was simply a tool to protect us from an overreaching government. It was not the end in itself, so that the founders would never have created a government where the goal was pure participatory democracy because they feared it. It wouldn’t have worked. And when the founders designed government, they interjected democracy only as a check on overreaching government. It was not the end in itself.
Todd Zywicki: Exactly right, which is that they knew from history that democracy could be a threat to liberty as well as preserving liberty. And so they were concerned about having democracy and having the people be involved in order to preserve liberty, but also acutely aware of the power of the majority, the power of special interest factions to be able to manipulate the power of government in order to restrain liberty. Throughout what we see is what they were concerned about was preserving liberty, and democracy was just one means among many that they chose in order to bring that result about.
Bob Zadek: This is Bob Zadek. I’m talking with Professor Todd Zywicki. We are talking about the 17th Amendment when it all changed, 1913.
The 1913 Shift and the Ratchet Effect [11:39]
Bob Zadek: We are talking today about the 17th Amendment when it all changed, 1913. I’m delighted to be joined by Professor Todd Zywicki from George Mason University School of Law. We are talking about the 17th Amendment. Was it a mistake? Should it be repealed? Uh, before the break, uh, Todd was uh sharing with us the very carefully thought out uh balance of power, the system of checks and balances that the founders designed to control governmental power and to preserve liberty. And like any well thought out machine, that design, that governmental design had lots of parts, all of which were dependent upon each other. And the system worked. And for about a hundred years, everything worked amazingly, just like the way the founders designed it. Then in 1913, it all changed. Todd, what happened to this well designed machine that worked just the way it was supposed to for a hundred years?
Todd Zywicki: Well, what we saw during the 19th century, Bob, was is as you said it worked exactly the way it’s supposed to, which is there were things that the federal government was supposed to do—an army, a navy, uh um, you know, uh things like things like that—and everything was else was left to the states. And even when we would see the government expand, for instance, uh in times of crisis or wars or whatever, what would generally happen is that the government would retrench at you know, when the federal government would grow, what would happen is that the government would retrench back to its original size primarily and bring back this sort of this this balance. We didn’t have what Bob Higgs has called the ratchet effect of uh of the government growing and then staying staying large. Then what happened in 1913 under s sort of the uh um the onslaught of uh of progressivism uh and uh you know the rise of national interest groups and that sort of thing was we got the one-two punch that you described. You got the 16th and the 17th Amendments together, which is the 16th Amendment then basically unleashed the taxing power of the federal government to be able to reach into our pockets and take uh money away from us. And the 17th Amendment basically unleashed the regulatory and spending power of the federal government, which is it basically took the took away the one institutional check that we had for the states, uh and the an important institutional check against special interest manipulation of the federal government and basically turned it over to the honor system, uh, which is now uh elected national politicians give lip service to ideas like federalism, but there’s no constitutional protection for it. There’s no institutional protection for it. It’s purely a political uh contingency, and what we see is is that our senators, just like members of the House, are willing to sell out federalism in a m in a in a second if they think it’ll help them get re-elected.
Bob Zadek: And what’s important to understand is uh Todd mentioned before the break that one of the important byproducts of the system of government which the founders designed, and by the way, it should be mentioned that when the founders discussed direct election of senators uh as compared with what they and drafted, which was indirect election through state houses, the founders there was no disagreement. I think James Wilson was the only founder who tossed out the idea, what about direct election? Uh there was a straw vote or voted down 10 to 1, and that was the end of it. It was so obvious to the founders that you had to have, you couldn’t have both houses of Congress elected by the people because then it empowers special interests. The founders, the genius of them was they could anticipate the um adverse effect of special interest, and they they removed the threat. And so for over a hundred years, the government was not totally free. It never could be. The railroads were special interest in the 1870s, and they got some benefits. But by and large, the govern—the federal government system was free of special interest. In fact, there was one statistic, I think, Todd, that you quoted in one of your articles, where while the House being responsive to the voters, uh passed I think in 1912, they passed, I think your number was 21 or 22 very pro-labor pieces of legislation, and all but six of them were not passed in the Senate, because the Senate was the more deliberative body, and they weren’t responsive to labor or anybody else. They were answerable to the states. That was their constituency. So the system really worked. And then what so if we had a system, Todd, that worked, what was the political climate that caused it all to change?
The Progressive Mindset and the Elixir of Democracy [17:15]
Todd Zywicki: Well, it’s it I think it’s a variety of things, Bob. I mean, I think first it was um this elixir of democracy, you know, this uh this idea that uh just this sort of naive faith in democracy, uh, that that people, that many people still have today, a uh a century after uh the after the 17th Amendment, uh people just it seemed to just be sort of a rising tide of democracy. I think the second thing though, that perhaps was even more important, was the rise of the progressive mindset. Uh and basically the way I think about it is what the framers had was a system that was quite clearly skeptical or uh um concerned about what happens when you put too much power and too much in the concentrated hands of uh of people through democracy and their the officials who wield that power. And so the way I think of it is that what one of the things that the framers were concerned about was preventing bad people from doing too much bad, uh uh preventing putting too much power in concentrated hands where people could could hold sway. And what they really had is a corollary to that was a faith in the ability of states and local governments and people acting through private organizations and charities and civil society organizations in the market to be able to solve a lot of their own problems. What we saw with the rise of the progressive movement, however, was this idea that the that the Constitution was antiquated, that what it really—the problem was that it stood in the way too much of good people doing good. And essentially what we wanted to do was get these sort of elite experts, give them the power they needed to remake society, uh, and basically get rid of the separation of powers and the checks and balances were built into the constitutional system. I think history has told us that was naive, uh and that the framers were right in being skeptical about what happens when you concentrate power in people’s hands with only a check of democracy without the other precautions we see in the uh the Constitution. And second, I think they’re exactly right in fearing that the overall impact of that would be to empower special interest and to empower uh our you know, our government officials themselves.
Bob Zadek: In discussing democracy, uh one of the founders, Todd, and you may know the exact quote or close to it, you’re gonna come closer than I will. But one of the founders often observed in commenting on democracy that it’s no better to be dominated and ruled by a majority of people than it is to have your liberty being deprived by a monarch. Whether it’s one person depriving you of liberty or a majority, if you are deprived of liberty, the feeling is the same. And that was a founder commenting, I don’t remember who it was, but that was a founder commenting on how the tyranny of the majority is just as much tyranny as is the tyranny of a monarch or a dictator. So that summarizes their concern about democracy. But democracy was a very potent tool to control the accumulation of power. So democracy is not an end, it’s a tool. And what’s important is that another importance, and the founders knew it, Hamilton and Madison both knew it, that the reason the indirect election of senators was so important is that with the Senate having as their constituency the states, the Senate would make sure that there was no accumulation of power by the federal government at the expense of the states, because the senators represented the states. Bicameralism was brilliant. And in 1913, Todd, as you pointed out, with no discussion of the loss of federalism, there was no discussion of that. There was a discussion of democracy. There was a discussion of corruption in senators buying seats in the Senate, but no discussion of federalism, and it’s the loss of federalism that gave us all of this obnoxious legislation we have now.
Todd Zywicki: Yeah, that’s right, Bob. In in the genius of the framers, I think is really captured in Madison’s Federalist 51, which is he has this great passage that really pins us down where he says is in order to preserve constitutional government, you must have the interest of the man aligned with the constitutional rights of the place.
Aligning Incentives with Federalism [21:40]
Todd Zywicki: The interest of the man must be aligned with the constitutional rights of the place. It’s not good enough to just send senators off to Washington and say, “Think about federalism every once in a while when you’re doing it.” If you want senators to protect federalism, you’ve got to reward senators for protecting federalism. And they understood that. They made the interest of the man aligned with the constitutional rights of the place. They would be elected and re-elected based on their ability to represent the views of the states as states and the state legislatures, and as you said, protect the states from being swallowed up by the federal government.
And they understood that aligning those incentives was the cornerstone of an “invisible hand” sort of logic—having to pursue their own interest in re-election ends up furthering the goal of protecting constitutional government. And so where we have the most obnoxious bits of legislation for us libertarians—Obamacare and Medicaid—those statutes could never have been enacted if the senators were answerable to the states, because both of those statutes and many, many more represent the federal government telling the states how to run their states. And if any senator would have supported that, they would have been yanked. They would have been fired by the states. Because the states would have said, “What in God’s name are you doing, man? You work for us and preserve our power.”
And things like unfunded mandates, where the federal government says, “We order you, the states, to do these things, and by the way, find the money to do it.” No one out there in the audience believes that a senator who is answerable to his state would vote for that. So the founders, in their genius, they anticipated all of this and got it right.
Bob Zadek: This is Bob Zadek. I’m talking to Professor Todd Zywicki. We are talking about the 17th Amendment, 1913—the year when it all changed.
The 17th Amendment and Special Interests [24:30]
Bob Zadek: This is Bob Zadek back with The Bob Zadek Show every Sunday at noon at 9:10 AM. Today we are talking about the 17th Amendment passed in 1913, right after the “boo-hiss” income tax amendment—1913, when it all changed. Sorry, sorry, 17th Amendment, 1913. Sorry, Todd.
The 17th Amendment was the amendment to the Constitution that changed the delicately crafted design of our government and created the direct election of senators by the people rather than the indirect election through state houses. Now, the importance of this structure given by the founders is that if you have the two houses of the federal legislature—one elected by the people, one elected by the states—one would be a check on the other. And you would not have senators directly acting as the people seem to want, but rather they would be acting looking out for the interests of the states, and they would be a check on the excesses of the—of the House.
The House runs for election every two years, and therefore they are far more responsive to the whims of the public, to the anger of the moment. The Senate would be a more deliberative body, not responsible for their jobs on keeping the people happy, only keeping the states happy. It was a very delicate balance, but one that worked. And as Todd has pointed out, it was in 1913, when this was all changed, the very carefully crafted balance was changed.
Todd mentioned before the break the importance of special interests. And what you will learn from Todd is that once the system of government changed to direct election, that opened the floodgates to special interests. So anybody who wishes special interests were not so important has the—the 17th Amendment to thank. Now, Todd, before we speak to the interest of special interests, we have a caller, Jim in Concord. Jim, thanks so much for being patient on the show. And what’s your question this morning for Professor Zywicki?
Jim: Oh, yeah, hi Bob. I always enjoy your show on Sunday, and this is kind of indirectly related, and it’s probably an earlier show. I have this idea how we can help elect a more libertarian president. I’m saying perhaps there should be like one round where the best of the Democrats, best of the Republicans, and best of the Libertarian or any other party are—you know, we vote for them, and then the—the top two vote-getters then will go for the final round. That way people who are afraid that somebody they don’t want—you know, like right now there’s a lot of people, probably on the Republican side, who wouldn’t mind voting for a libertarian, the—the current one that you have. I forget his name from New Mexico, Governor… is that Governor Gary Johnson?
Bob Zadek: Right. He sounds like such a… anyway, Jim. Yes sir. Don’t forget his name. But go ahead.
Jim: Anyway, perhaps you can articulate the idea better, but that’s the idea—that way, for that matter, some years back when Nader was running, I’m sure a lot of Democrats wouldn’t have minded voting for him if they felt comfortable that somebody—somebody else wouldn’t get the vote, like the third person. So in this case, if you—you know, we need it down to two people, and let’s say if you want to go for either Romney or Gary, then either one wins, then you don’t mind. You’ll vote for them.
Bob Zadek: We are going to have, Jim—stay tuned. Coming attractions, which I normally don’t give on my show, but I will because you invited it. We will do an entire show, which will be—if my shows had titles—the title of the show would be “A Vote for Governor Johnson is Not a Wasted Vote.” And I will explain to the audience the importance of not—of disabusing yourselves of the fact—if you are sort of anti-Obama, if that’s your mindset—that you tend to say, “I’ve got to vote against the guy, so I don’t want to waste a vote.” We will do an entire show and explain and set forth in great detail how a vote for Governor Johnson or a vote for libertarians is not a wasted vote. So, Jim, your idea is a good one. You’ll have to stay tuned, watch the trailers for my show, because we will cover that for an entire show. Thanks so much for your thoughts, Jim, and thanks for being a listener.
The New Deal and the 17th Amendment [30:15]
Todd Zywicki: But Bob, Jim raises, I think, an interesting question that we hear a lot of, right? Which is that we’ve got so many vehicles. I mean, if we’ve—we’ve experienced what the 16th and 17th Amendment have wrought, and in many ways, the New Deal is—I think you’re exactly right that 1913 is what matters. At that point, the New Deal is just pretty much a mop-up operation, right? As we say in transactional law, it’s a post-closing event. The deal is currently… I mean, the seeds of the New Deal were inevitable. Once you—once you, you know, to pass the 17th Amendment, something like the New Deal was almost certainly going to happen.
Bob Zadek: You can explain that, Todd. You could explain how the New Deal is a direct result of the 17th Amendment when you explain the dynamics of the threatened court-packing and the advice and consent function of the Senate.
Todd Zywicki: Yeah, exactly. What we see is the Supreme Court originally putting up a little bit of a fight and trying to protect the states through the Commerce Clause and that sort of thing. But eventually what ends up happening is that because of the court-packing plan, they backed down. They basically allow this massive expansion of the—the federal government in relation to the states, in this huge overtaking in the national government. And it sort of opens the door then and kind of really becomes this huge spur to the—the special interest takeover of the government, right? And the bargains between the national government and—in special interests.
And so all that is, you know, the—the framers anticipated that, right? They knew that politicians would be tempted to seize upon a crisis, as Rahm Emanuel so famously said, “Don’t let a good crisis go to waste,” right? And that they would use that to try to expand the power of the federal government.
The Constitutional Ecosystem [32:35]
Todd Zywicki: And I think what we’re seeing with, you know, the ideas like Jim has, or even, you know, ideas like campaign finance reform, all these different sorts of things, is we’re trying to treat the symptoms of a government that is too big with too much special interest control without going back and thinking about the causes. We’ve undermined the constitutional structure and damaged the constitutional structure that was designed to keep the federal government in its place and limit the ability of the federal government to just hand out goodies to special interests. And now what we’re doing is sort of frantically running around to try to plug the holes that we’ve created by short-sighted tinkering with the Constitution without anticipating the unintended consequences of what we’re doing.
You know, I also think about—strangely enough, I think about environmentalism when I think about the affecting the balance. And what I mean by that is environmentalists—and I’ll take one tiny example—environmentalists find out that one species, wolves, are attacking deer. So to protect the deer, they get rid of the wolves. Now everybody loves Bambi, and everybody’s little deer; they’re cute and they have little tails that they wag, and it seems like a good idea to protect the Bambis or to protect the wildebeests from the lions. But then when you start messing with this complex ecosystem, you mess with one unit and you have all these unintended consequences.
So in 1913, in order to enhance democracy and have the direct election—after all, democracy is good—you end up with, all of a sudden, the federal government accumulates all the power that the founders desperately feared. They feared this amalgamation of power anywhere. They didn’t want power in the states; they didn’t want power in the people; they didn’t want power in the courts; they didn’t want power anywhere. But when you mess with one small piece without paying attention to the whole ecosystem, you lose control. And the founders hated more than anything else an accumulation of power. That was the word they despised. And as a direct result of the direct election of senators and democracy, in effect, the people lost power because power devolved to special interests.
Bob Zadek: And Todd, I think in one of your pieces, you pointed out an important number. I think it was you. It was 275. That in order for any special interest right now to control the country, they have to control or persuade one president, five Supreme Court judges, 51 senators, and 218 representatives—275 people—and you’ve got the country under your control. 275 people. Whereas with the indirect election, the people cannot vote a senator out of office. Therefore, a senator with indirect election is not beholden to the people. And therefore, you have to, if you are a special interest, you have to control a huge number of state legislatures in order to get to the senator. And that was the brilliant balance the founders designed.
Todd Zywicki: And I think your analogy to an ecosystem is exactly the right one, Bob, which is to think about the way this machine—the checks and balances and the way these things are all working together. If you just look at every system and just say, “Well, judges are not democratic, we need more democratic judges,” or whatever the case may be, if you just look at it in isolation, you’re losing the big picture, which is the way all these things were to work together and against each other in a way so as to frustrate these special interests, these power-hungry politicians. And through this clash or through this interaction of these various pieces, liberty would be protected. It would be protected as a byproduct of these rivalries and that sort of thing. And the framers understood that that was a more secure basis for liberty than to just try to appeal directly to the people or democracy or something like that, because as you said earlier in the show, often the people themselves were the primary threat to liberty. Majorities, you know, looking to take away people’s property and silence people who they don’t like and that sort of thing.
The 16th and 17th Amendments [38:00]
Bob Zadek: We are talking about repeal of the 17th Amendment. I am joined by Professor Todd Zywicki of George Mason University School of Law. Todd has written extensively on the 17th Amendment, and the importance of this amendment cannot be overstated. As Todd pointed out earlier in the show, 1913 was a black year for the Constitution. First, we enacted the 16th Amendment—the power to tax, or we always had the power to tax, but it gave us the right to tax people with a direct tax. So that was the 16th Amendment. The 17th was the power to spend. It removed a crucial check and balance in our federal system by providing for the direct election of senators.
Now, there’s much said these days about—by the way, I should mention this one thing I wanted to mention, Todd. You, of course, as I said, are at George Mason University School of Law. George Mason is in my pantheon of favorite founders. He is making a run for it. He is zooming up; he’s broken into the top five, and he may break his way into the top three. In reading Pauline Maier’s book on ratification, which talked about the ratification of the Constitution, we learned, of course, that George Mason opposed the Constitution in its present form. And it should also be mentioned that one of the promises, one of the items that tempered down the Anti-Federalists—the people who opposed the Constitution, and by the way, that would have been me—the people who opposed the Constitution were somewhat mollified by the fact that the indirect election of senators gave the states a seat at the governmental table. And I dare say the Constitution would not have been adopted—I think this is accurate American history—the Constitution would not have been adopted were it not for the indirect election of senators. So we had, albeit it took a hundred years, there was a bit of bait and switch going on, and none of the founders who drafted or supported the Constitution would support today’s Constitution. Todd, do you agree?
Todd Zywicki: I agree, Bob. And you nailed it right there, which is that when you read the Federalist Papers, what Madison says is—as you said, it was virtually unanimous at the Constitutional Convention to do it this way. And Madison—they hardly even talk about the politics around it in the Federalist Papers. Madison simply says few provisions of the Constitution gained such widespread support as the idea of having senators elected by the states. As you said, the Anti-Federalists liked it, the Federalists liked it. Everybody thought it was a good idea and a necessary idea in order to preserve the federal system and to protect the national government.
Bob Zadek: Exactly. And as you pointed out in Federalist No. 62, Madison said—this is a quote—that this was “an additional impediment against improper acts of legislation.” An additional impediment against improper acts of legislation. Madison knew that if you do away with the indirect election of senators, you will have “improper acts of legislation.” Does that describe Obamacare or what?
Todd Zywicki: Yes, I mean, I think it describes a huge portion of the growth of the federal government in the twentieth century. I mean, the overwhelming amount of it is special interest legislation, transfer programs from one person to another where people are just basically using the power of the government in order to take from A and give to B. And I think that’s exactly what the framers feared would happen if you unleashed the government without these internal checks and balances. And the states right now, who are really being harmed, materially harmed by Medicaid—well, Medicaid is a federal statute that imposes an enormous cost upon the states. Does anybody believe for one second that a senator who is appointed by a state would vote in favor of Medicaid? Why, of course not. He would be recalled.
In the final portion of this episode, the host and guest discuss the long-term impact of the 17th Amendment on the balance of power between state governments and the federal government. They argue that the original constitutional design intended for the Senate to serve as a direct representative of state interests, acting as a check on federal expansion. The conversation explores how the shift to direct election of senators has led to a system where states must often resort to lobbying or litigation to protect their sovereignty from federal mandates and overreach.
The discussion also touches on potential remedies to restore federalism, such as a proposed amendment that would allow a collective of states to repeal federal legislation. They conclude by emphasizing that the current reliance on the Supreme Court as the primary defender of state rights is a departure from the founders’ intent and stress the importance of public education regarding the Constitution’s original structural protections.
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