Five Necessary Amendments, Part One

With the cap-and-trade bill passing the House, Obama’s health care plan gaining heft (at least in pages, if not in votes), and our nation’s balance sheet spurting more red ink than a B-grade horror movie, it’s time to ponder how fundamentally our system has failed us.

Since the advent of the New Deal and the attendant evisceration of most constitutional limitations on Congressional authority by the Supreme Court, we have proven incapable of reducing the size or improving the performance of government — even when majorities of the public have expressed their will to do so.  That is largely because public officials’ interests are at odds with taxpayers’ interests.  Politicians must justify their existence and want to expand their power; citizens want to pay less for government while having it do more for them.

The result has been a shift in the tax burden to an ever-shrinking share of the electorate, so that politicians can play with the most money while incurring the wrath of the fewest voters.  Similarly, voters have often vacillated between candidates who say they will accomplish big things and those who say they will spend less of their money.  Those candidates lose when either the costs or the incompetence become too obvious to ignore.  Thus, politicians hide the costs and the failures in ever-more-byzantine bureaucracies and budgetary schemes, many of which are now becoming painfully apparent.

While none of us were alive to remember it, there was a time when voters and their public servants did not dance to this discordant tune.  Candidates simply understood that the federal government was incapable of acting in certain ways, no matter how much its participants might want to do it.  The elimination of these structural (i.e., constitutional) limitations on government power meant voters were the only thing standing between the politicians and their desire for power was the people.  Ergo, politicians set to snookering the people.  The results have been consistently favorable for the politicians in terms of power-accumulation over the long-term.

This trend has given rise to an unmistakable frustration within the electorate — that “something” isn’t right, and that no matter what they do at the polls, things seem to go wrong (for them, anyway).  This unarticulated discontent, in my view, would best be satisfied by restoring (or creating) structural and constitutional barriers to power-seeking among politicians that would passively protect the public from abuse by government.  In short, voters would agree to limit their (and their representatives’) freedom to choose for protection against abuse of that freedom.

Limitations on freedom, you say?  Surely this cannot be conservative.  But every limitation in the Constitution is a limitation on the freedom of either the electorate, its government, or both, to take certain actions the Founders believed to be inappropriate.  For example, the Founders chose to prevent the states from raising armies or entering into foreign treaties.  That limitation, by its very terms, prevents the voters of Vermont from demanding that their officials enter into a treaty with Iran, or the governor of Texas from raising an army and going to war with North Korea.  But the Founders designed the system to limit those powers, because they had seen them fail in the Articles of Confederation and knew that the federal government must be the nation’s only face to the world.  No one today bemoans South Carolina’s lack of a foreign policy, but these limitations were controversial within ten years of the ratification of the Constitution.  Similarly, we limit the freedom of individuals to vote for the same person for President three times; we limit the freedom of states to impose poll taxes; and we limit the freedom of government to take individuals’ property without compensation.  One can justify the exercise of each of these freedoms in certain circumstances (a great President; a means of paying for an extraordinary election; an urgent need for food by a cash-strapped government in time of war), but we the people have chosen to ignore those circumstances and establish the general rule, because on balance it is more conducive to good government.

In this spirit, I propose five new amendments, intended to make our government run more effectively.  Although my personal principles run to the right, I don’t think these rules would necessarily result in a more Republican government — just one more capable of being run as a republic.  The first of these is detailed below, but more will follow in subsequent posts.

1.  Repeal of the Seventeenth Amendment

The Seventeenth Amendment abandoned the practice of the election of Senators by the legislatures of the several states and provided for the direct election of Senators by the public.  This has perverted the federal system in two significant ways.

First, it has eliminated from the federal government any formal voice of the state governments.  Sure, members of Congress tend to help out their states, but they answer to the people, not state officials.  Without this voice, Congress has repeatedly imposed new and expensive unfunded mandates on the states, ranging from Medicaid (now roughly 20 percent of state expenditures) to school regulation (No Child Left Behind; ADEA).  While one might argue that the people of the states would likely share the same sentiments as their state elected officials, it isn’t that simple in practice.  The ever-growing bureaucracy at both the state and federal level have made it virtually impossible for the average voter to comprehend all of the policy interests of the states, and campaigns are never run to lower the state contribution share to Medicaid or increase the gas tax reimbursement from the transportation trust fund.  Indeed, just as the government became big enough to make the state-Senator relationship particularly important, it was severed.  In fact, I would argue that states would have fought against that very growth through their Senators, had they had the chance.

Second, the loss of senatorial selection has, in many states, served to marginalize and isolate the state governments in general.  With the ever more national focus of the media and the expansion of the federal agenda into what had previously been state prerogatives, the personalities, policies, and unique predilections of states and their officers have become increasingly irrelevant.  The loss of local newspapers, often the most reliable source for such information in small communities, will only hasten this trend.

How much more would one pay attention to state legislative elections if the state’s Senator would be chosen by that body?  If a Senator’s six-year term was to be up, might he be more responsive to his state legislature’s wishes?  As public policy writers themselves, state legislatures are far more capable of policing a Senator’s myriad decisions and holding her accountable for them than the average voter, and the more frequent elections of those legislators would provide a Senator with a more immediate barometer of public opinion than their six-year term often provides.  It would end the multi-million dollar campaigns for Senate currently favoring the super-rich over the highly-qualified (although I have no illusions about the purity of legislative selections).  It would also make less likely the enduring octogenarians of the Senate, whose charm are often outweighed by their eccentricity.

One further benefit would be a greater distinction between the House and Senate, both in their roles and their outlook.  Since the Seventeenth Amendment, the Senate’s makeup has largely mimicked that of the House, just with older members.  As the Senate became popularly-elected, so its Senators became more populist (and partisan) than their predecessors.  But the House is intended to be more vigorously partisan, and for this reason it is selected by the smallest (and most homogeneous) groups of voters for federal elections.  When Senators are merely elected by the aggregate of House voters in a state, the moderating effect is mild in all but the most “purple” states.  Senators, when chosen by state legislatures, would be inclined to be far less partisan.  In many cases (in 2009, the number would be 9), a Senator would be chosen by a legislature with two chambers controlled by different parties or a single non-partisan chamber.  True, a state legislature with total control by a single party would be inclined to select a partisan Senator, but most likely this state would send a partisan Senator to Washington through a popular election, as well.  The filter of a legislative selection will also most likely ensure that the Senator is a senior and well-seasoned politician, rather than someone outside the system.  This focus on experience in lawmaking and the art of compromise, rather than populist zeal or years of business leadership, is more likely to result in a politically-moderate and temperamentally-mild Senate.

Thus, I propose we go back to the future and reinstitute Senatorial selection by the states.  By signing over their right to directly elect the upper house of Congress, the public would gain a less partisan and more professional Senate, more attuned to the interests of their state and disinclined to hide the costs of federal priorities in state coffers.