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The True History of the Seventeenth Amendment: A Reply to Todd Zywicki

November 17, 2010

In a lengthy and caustic post on Volokh Conspiracy, Todd Zywicki responds to my initial critique of his defense of efforts to repeal the Seventeenth Amendment.  Zywicki argues that my post, “The True History of Federalism and the Seventeenth Amendment” relies on a fundamentally mistaken and incorrect version of how the Seventeenth Amendment became a part of our Constitution.  But Zywicki does not, and cannot, dispute the central fact that the States were instrumental in securing the approval and ratification of the Seventeenth Amendment – even though by his lights the Amendment destroyed a critical bulwark of federalism.  In addition, Zywicki does not, and cannot, dispute that the federalism objections he finds so persuasive, and that he claimed in his initial post were never considered by the drafters and ratifiers of the Seventeeth Amendment, were, in fact, made by the opponents of the Amendment, and rejected by the American people.

Instead, Zywicki is reduced to questioning whether  the American people should have been so worried about corruption in the selection of Senators by state legislatures and whether  the constitutional value of democracy is all it is cracked up to be.

On the corruption point, Zywicki recites statistics that suggest corruption may not have been as rampant in state selection of Senators as is commonly recalled.    Even taking these statistics at face value, however, one questions the point.  The framers of the Seventeenth Amendment, time and again, expressed concern about corruption in the selection of Senators, and Zywicki does not suggest otherwise.  And even by today’s standards, some examples of corrupt dealings of the day are nothing short of astounding.   In 1899, the Montana legislature sent William Clark to the U.S. Senate after he personally contributed $140,000 to the legislators of Montana.  A decade later, the Illinois legislature elected William Lorimer – known as the “blond boss” – to the Senate after bribes offered to state legislators helped break a deadlock in the state legislature.  Clark ultimately resigned his seat; Lorimer was expelled by the Senate after the Chicago Tribune unearthed the critical facts.  So was it a mistake to ratify the Seventeenth Amendment if corruption was shocking, but not rampant?

More fundamentally, Zywicki dismisses the constitutional value of democracy, asserting that he is a “constitutional republican,” more concerned with individual liberty than with protecting democracy or the right to vote.  Zywicki, of course, is free to hold these views, but not to pretend they are well supported by our Constitution today.  Democracy is at the core of the Constitution, and the right to vote is the basis of our liberties, the fundamental right “preservative of all rights,” as the Supreme Court put it in Yick Wo. v. Hopkins in 1886. “We the People” have amended the Constitution five times to expand the right to vote or make our system of government more democratic.  The framers of the Seventeenth Amendment correctly recognized that these fundamental constitutional values demanded that U.S. Senators be chosen by the American people, not for them.