Monday, February 23, 2009

The all or nothing Constitution of George Will

In his column yesterday, George Will called for a repeal of the Seventeenth Amendment, which provides for the direct election of U.S. Senators:

"The Framers established election of senators by state legislators, under which system the nation got the Great Triumvirate (Henry Clay, Daniel Webster and John Calhoun) and thrived. In 1913, progressives, believing that more, and more direct, democracy is always wonderful, got the 17th Amendment ratified. It stipulates popular election of senators, under which system Wisconsin has elected, among others, Joe McCarthy as well as Feingold...

"Furthermore, grounding the Senate in state legislatures served the structure of federalism. Giving the states an important role in determining the composition of the federal government gave the states power to resist what has happened since 1913 -- the progressive (in two senses) reduction of the states to administrative extensions of the federal government."

Years ago I saw Sam Donaldson on a television program declare that George Will was perhaps the smartest person he'd ever met. Donaldson then chuckled and admitted he didn't have a very good answer when someone hearing such praise responded "Well then why don't you agree with Will more often?"

So let me emulate Donaldson, chuckle a bit, acknowledge George Will is a very learned fellow, and then blast him for this column, which is not a model of intellectual rigor. It suffers from two obvious logical fallacies.

First, he uses anecdotal evidence to suggest senators were better before popular vote, and very mere anecdote at that. Will mentions three "great" senators from the nineteenth century (Clay, Webster, and Calhoun) and one scourge from the twentieth century, Joe McCarthy (or two scourges, if you think his shot at Feingold is serious, which I doubt).

Yes, popular vote put Joe McCarthy in the Senate. It also put Harry Truman, Lyndon Johnson, Hubert Humphrey, and John McCain there. I'd say we've gotten some pretty fair Senators out of the deal.

But more to the point, back in Will's good old days when Senators were selected by the state legislatures, we got in the upper house men like Chipman, Clayton, Foster, Goodhue, Greene, Hillhouse, Latimer, Laurance, Livermore, Lloyd, Martin, North, Paine, Read, Rutherford, Sedgwick, Stockton, and Tracy. Who were they? They were the eighteen senators who on July 4, 1798, voted in favor of the Sedition Act, making it illegal to write or publish any "inflammatory declarations" about the United States or any of its officials (see page 599 of the link). It's a bit ironic that Will props up Joe McCarthy as an example of what you can get with common folks selecting senators since McCarthyism has often been compared to the dark days of 1798 (see Stone, Perilous Times: Free Speech in Wartime, 2004, p. 37). It's even more ironic given that in this same column Will blasts McCain-Feingold as an abridgement of free speech. (A digression: I agree with Will about that.)

I'd also argue it's something of a reach dropping John Calhoun's name as a great nineteenth century senator, especially given the contrast Will makes between "great" senators and McCarthy. McCarthy's philosophy may be summed up as "everybody is a commie." Calhoun's philosophy may be summed up as "every Negro should be a slave." Bad as McCarthy's thesis was, it didn't do as much long term damage to this country as Calhoun's notion did. The Red Scare didn't curse us with a Gettysburg.

Then there's the second problem with Will's call for repeal of the Seventeenth Amendment. He's fallen into what I call the "All or Nothing Constitutional Trap." The trap is set like this: the Constitution is amended in year x to change policy y. As the years pass, and the reasons for the amendment fall out of memory of most of the living, people start to think--usually erroneously--that before the amendment every state was doing what the amendment set out to change.

Here are some examples of the All or Nothing Trap. Have you ever heard it said or seen it written that before the Nineteenth Amendment was ratified in 1920, women couldn't vote? That's absolutely untrue. Lots of women voted before 1920, because fifteen states had fully enfranchised them prior to that date (Keyssar, The Right to Vote, 2000, p. 402.) Four states even let the ladies cast ballots before the nineteenth century came to a close.

Ever hear or read that African Americans couldn't vote before ratification of the Fifteenth Amendment following the Civil War? Not so, before the Civil War blacks could vote in five New England states (Goldman, Reconstruction & Black Suffrage, 2001, p. 10.)

Ah yes, and there's Prohibition. This country did not suddenly go dry upon ratification of the Eighteenth Amendment in 1919. Seven states got rid of booze by 1900; others followed in the nearly two decades before liquor was banned nationwide (Friedman, American Law in the 20th Century, 2002, p. 102).

When the Twenty-fourth Amendment, banning poll taxes, came into force in 1964, there were only five states left that still had the practice (Amar, America's Constitution: A Biography, 2005, p. 443). Now I've never heard anybody say that before the Twenty-fourth Amendment we had poll taxes everywhere, but that's probably because there are still so many alive who remember 1964. I'll bet you anything that in another hundred years there will be people who believe that this country had poll taxes everywhere, and then suddenly in 1964 we had them nowhere. (I won't be around for you to collect, so it's an easy bet for me to make.) That's the nature of the All or Nothing Trap, folks think that a process which was halting and incremental was sudden.

And that's where George Will trips in this column. One would get the impression, were one to use it as his only source on the subject, that all of a sudden in 1913, we went from state legislatures selecting senators to election of senators by popular vote. That's far from accurate. Let me quote the annotation of the Seventeenth Amendment from the official annotated Constitution maintained by the U.S. government:

"Prior to ratification... many States had perfected arrangements calculated to afford the voters more effective control over the selection of Senators. State laws were amended so as to enable voters participating in primary elections to designate their preference for one of several party candidates for a senatorial seat, and nominations unofficially effected thereby were transmitted to the legislature. Although their action rested upon no stronger foundation than common understanding, the legislatures generally elected the winning candidate of the majority, and, indeed, in two States, candidates for legislative seats were required to promise to support, without regard to party ties, the senatorial candidate polling the most votes. As a result of such developments, at least 29 States by 1912, one year before ratification, were nominating Senators on a popular basis..."

Notice that this is quite a contrast from the examples I gave earlier. Some African Americans could vote before adoption of the Fifteenth Amendment, but most couldn't; indeed, many couldn't for a hundred years before we figured out no discrimination on the basis means what it says. Some women could vote before 1920, but many couldn't. But in the case of popular election of senators, we see that in twenty-nine states--better than sixty percent of them--the change that George Will decries was well underway before the Constitution was amended.

And here is maybe the key point: as Professor Amar notes in the book I've cited above, since the Seventeenth Amendment had to be ratified by three-quarters of the state legislatures, those elected officials were consciously reducing their own influence, taking a power they had and giving it to the electorate (p. 412). Amar goes on to illustrate the problems of senate selection by the legislatures:

"As a result of intense partisanship, state-law quorum rules, and clever parliamentary maneuvering, state legislatures had often deadlocked when balloting for the Senate. These deadlocks--nearly fifty between 1891 and 1905--had routinely meant that for months a state had only one senator (and in the case of Delaware during one especially contentious two-year period, no senator) in the federal upper chamber. Meanwhile, the Senate tussles had often distracted state governments from attending to other pressing business. Direct election promised to solve these problems."

Fifty deadlocks in fourteen years. Imagine the Coleman-Frankin debacle in Minnesota fifty times over; that's what they had in the "gay nineties." I'd rather not go back to that.

And here's the funny thing: Will doesn't seem to fathom that even assuming you could somehow repeal the Seventeenth Amendment, we wouldn't go back to that. If, in a moment of madness enough legislators in thirty-eight states voted to take back selection of senators, what do you think the people would do? They'd express outrage, that's what. Candidates for office would take advantage of the disgust and promise that if they were elected never mind what just happened nationally, here in the great state of Georgia, or Illinois, or New York, or wherever, we want the people to choose their senators and if you elect me I'll vote that way. Or, grassroots movements would lead to state constitutions being expressly amended to provide for popular vote. The point is, unless you amended the Constitution to specifically say that the states can't have popular elections for Senate--and Will doesn't appear to be advocating that--it would be surprising in our nearly universal suffrage America if even one state chose to go back to the days of senators selected by the few instead of by the many.

Let me close this article by commenting on a historical election for the Senate that I'll wager Will and I agree went the wrong way. We saw that the process of the people having at least some say in selecting senators began well before 1913. A major milestone in that regard was the 1858 race for one of the Illinois U.S. Senate seats, the famed Lincoln-Douglas encounter. Up to that point in Illinois as elsewhere, the state legislatures would select a Senator after they got elected; it wasn't typically a campaign issue. But in 1858 the format changed: the Republicans announced Abraham Lincoln as their man and most of the Democrats touted Stephen Douglas before the state election (Amar, p. 410). In essence, the 1858 Illinois election was made a referendum on who would represent the Prairie State in the upper house in Washington. Vote for us, the Republicans announced, and Honest Abe will get the job. Cast your ballots for us, countered the Democrats, and we'll keep Douglas there.

So it was a movement towards popular election, but not a true popular election in the modern sense. And do you know what happened? On November 2, 1858, there were approximately 125,000 votes cast for Lincoln Republicans--four thousand more than the candidates pledged to Douglas received (Potter, The Impending Crisis, 1976, p. 354). If it had been a true beauty contest, Lincoln would have gone to the Senate.

Alas, it didn't quite go that way, because the voting was considered by district rather than by statewide tally. As a result, forty-six Democratic legislatures were chosen and only forty-one Republicans, plus eight of thirteen representatives held over from a previous election were Democrats (Potter, pp. 354-55). So even though Lincoln would likely have won if the 1858 contest had been a straightforward, popular vote, Douglas prevailed because of the same type of legislative meanderings the Seventeenth Amendment was designed to short-circuit.

Apparently George Will wants to bring back those legislative meanderings. Well, I'm against Will in his efforts to take America back to the early days before senators were popularly elected.

Of course, if he wants to take America back to the early days when the Cubs were World Champions I'll go along.

Edited to add: welcome, hotair readers! Feel free to look around and pet the goats.

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