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Originally posted by lifesaver
Understood, and agreed, especially on the interdependence thing, but I come from the traditionalist viewpoint that we live in a representative democracy, not a direct one.
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This is true as a simple matter of fact; however, I do not think that the ideas behind representative democracy are overly impaired by having direct election of Senators, while numerous important policy goals would be impaired by returning to election of senators by the state legislatures.
Direct election of Senators is still representative democracy. It is no less so than direct election of Represenatives is.
The bicameral nature of the legislature is still important under the current system, because one house has propotional representation while the other does not. The proportional representation in the House of Representatives gives approximately one-fifth of the votes in the House to California. But in the Senate, California has only one-fiftieth of the votes. The rules of the Senate are also set up to encourage slower deliberation and action than those of the House. Because of the makeup of the Senate, it would be much more difficult for California (for example) to push through California-centric legislation, or for large states alone or as a coalition to push through legislation that favors only them.
Now, the same functions would exist with a Senate elected by state legislatures (See U.S. Const., Art. 1 Sec. 3, repealed). But the motivations of the Senators would be different. After all, their constituency would be rather different. State legislatures cannot be viewed as truly representative of the people who elect them, for they have a special interest in government as people who themselves govern. The Framers surely saw this as a benefit to the system they designed; I haven't read the Federalist papers lately, but as you said, they hoped that the state legislatures would be better educated about the needs of the state and would be better able to select and, of course, direct the Senators. As the author of the column pointed out, this has a secondary effect of limiting the power of the federal Legislature.
What he doesn't explain is just how that works. That's where my theory comes in. State legislators have an interest in retaining decisionmaking power for themselves. They do not like the Supremacy Clause of the U.S. Constitution. Fn1. What is more, they have an interest in making laws that favor their own states, disregarding the interests of others. To a certain extent, standing Constitutional doctrine prevents discriminatory lawmaking. The Equal Protection Clause of the 14th Amendment forbids states from making laws that very clearly discriminate against other states in favor of their own. The Commerce Clause of Article I, Section 8 is said to prevent states from making laws that interfere in certain ways with interstate and international commerce, which fall within the domain of Congress.
I do not think that the "negative" or "dormant" Commerce Clause and the Equal Protection clause are adequate to remedy the problems that repealing the 17th Amendment would create. I think that it is a
problem that state legislatures, seeking to legislate for themselves, could impair federal legislation on matters of national interest.
So a big part of the question, then as now, is how much we trust state legislatures. As you can tell, I do not, especially when the question is how much we trust them in their involvement with federal lawmaking.
I'm even more certain of that, though, because of how much has changed since the 17th Amendment went into effect. The nation is more interdependent. But economic interdependence has never stopped a government from taking economically detrimental protective action. See, e.g.,
my notes here, and the problems will be amplified if the States, while not taking action themselves, prevent the federal government from doing so.
Don't get me wrong. I don't look at the federal legislature with rose-colored glasses. But as a matter of constitutional structure, I think giving power to state legislatures to control the Senate is worse policy than what we've got today, and worse policy than simply narrowly construing the Commerce Clause and other Article I powers.
It's also not simply a matter of preferring the slow nature of judicial review to the abrupt nature of constitutional amendment. There's an additional problem about what would happen to judicial review once the amendment went into place. Should the Supreme Court see such an amendment as a reason to back off on strict, narrow interpretation of the affirmative powers of the legislature? I am sure that they would not treat it that way. They would treat it either as neutral with regard to Article I Section 8, or they would treat it as an affirmative statement of constitutional intent to restrict the power of the Congress. Either way, the amendment would not shift the way Court decisions are made as the author of the original commentary suggests it would.
In any event, the question is not entirely one of direct versus representative democracy. We have no direct democracy in the United States except when a state or a municpality (which, as a constitutional matter, is merely a subdivision of state power) runs a binding referendum. The question is who has the power to elect Senators, and therefore who exactly the Senators represent. I think there are enough power politics in Washington without bringing State legislators' desire for power into the mix. An overactive Federal government is a problem, but in this day and age, a crippled one is far, far worse.
(1) The Supremacy Clause reads, "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const., Art. VI, cl. 2