Legal Commentary

?Democracy? is not a Definitive Argument Agains the 17th Amendment:

By Todd Zywicki

Apparently Glenn Beck?s been thinking about the 17th Amendment too.  A short mention in this video and a mention on his website (was this perhaps the text of a short discussion he had on it).

And Mike Huckabee recently called the 17th Amendment ?one of the dumbest things we did.?

Which brings to mind my observation that those who oppose the repeal of the 17th Amendment think it is a definitive argument that it would be anti-democratic or ?distrustful of the people.?  That?s one argument, but I think it much weaker than those folks believe it is.  Well, yes, of course it is.  But without belaboring the argument, it basically boils down to an argument about how to trade off arguments for democracy against arguments for a constitutional republic.  Those of us who like the original system like the systemic values that it promoted?bicameralism and federalism.  The goal is the preservation of liberty and the frustration of special interest faction, not the maximization of democracy.  Those who have read my articles on this will note that in my view the the original Senate was at least as important in promoting bicameralism and the frustration of interest-group faction as federalism.

Notably, many of the same people who express horror or ridicule the thought of indirect election of Senators would also express horror or ridicule at the idea that we should elect federal judges.  Just goes to show that the argument has to be about constitutional structure and that democracy is not a trump card.  Note also that we don?t have direct election of the President, although it is somewhat more direct than the original Electoral College (notably many states had adopted different amounts of direct election of Senators prior to the 17th Amendment?s enactment).

Repealing the 17th Amendment might be a pipe dream as a political reality.  Or it might be that the the pre-17th Amendment Senate was not actually as powerful as a force for bicameralism and federalism as the Framers? intended.  Or that democratic election furthers other normative goals here, but not in the context of judges.  Or maybe its just not a good idea for some other reason.  But to say it would be anti-democratic is merely the beginning, not the end, of the argument.

For the record, I also oppose direct election of federal judges despite the anti-democratic nature of that opinion as well.

Full post as published by The Volokh Conspiracy on June 14, 2010 (boomark / email).