Tuesday, February 24, 2009

Will started something, by George

I was pleased that my effort yesterday regarding Sunday's George Will column was referenced at hotair.com. Ed Morrissey also took issue with Will, for slightly different reasons. What is really interesting to me, however, if you look at the comments posted, is how many people agree with Will that the Seventeenth Amendment ought to be banished to Siberia and the selection of senators given back to the state legislatures.

As I normally do, I made my case from a historical perspective, pointing out the problems before 1913 that led to the amendment's adoption. What occurred to me later was that I should go back all the way to the debates at the Constitutional Convention of 1787 to see if there was a lot of disagreement over mode of selection of senators when this great land was just getting organized.

The significant discussion took place on June 7. The delegates were just getting underway when John Dickinson moved "that the members of the 2d. branch ought to be chosen by the individual Legislatures." His motion was promptly seconded, whereupon Dickinson elaborated why he was in favor of such a means of selection:

"1. because the sense of the States would be better collected through their Governments; than immediately from the people at large; 2. because he wished the Senate to consist of the most distinguished characters, distinguished for their rank in life and their weight of property, and bearing as strong a likeness to the British House of Lords as possible; and he thought such characters more likely to be selected by the State Legislatures, than in any other mode."

Anybody besides me get a bit of a giggle over reason 2? I mean, when I look at Georgia's two senators--Saxby Chambliss and Johnny Isakson--the last thing I think is that they bear a strong likeness to members of the House of Lords. I'll bet neither one even owns a powdered wig.

James Wilson, populist that he was, disagreed with Dickinson; he thought the voters should choose representatives in both houses. He made a motion to postpone Dickinson's motion--isn't parliamentary procedure a bit odd--so that popular election could be considered. That motion was seconded, but not another one offered by George Read to have senators selected by the president from a list of candidates provided by the state legislatures.

Nobody seconded Read's odd idea, but it's worth pointing out for one reason: to remind ourselves that there were more than just two options here. We tend to think of there being only a pair--selection by state legislators or popular election--because those are the two we've had in our history. But Elbridge Gerry summarized four options, not including Read's:

"4 modes of appointing the Senate have been mentioned.
1. by the 1st. branch of the National Legislature[i.e. the House of Representatives]. This would create a dependence contrary to the end proposed.
2. by the National Executive. This is a stride towards monarchy that few will think of.
3. by the people. The people have two great interests, the landed interest, and the commercial including the stockholders. To draw both branches from the people will leave no security to the latter interest; the people being chiefly composed of the landed interest, and erroneously supposing, that the other interests are adverse to it.
4 by the Individual Legislatures. The elections being carried thro' this refinement, will be most likely to provide some check in favor of the commercial interest agst. the landed; without which oppression will take place, and no free Govt. can last long where that is the case. He was therefore in favor of this last."

Notice that the support Gerry gives selection of senators by the state legislative bodies doesn't seem wholly enthusiastic; it's more that he thinks the other three methods are bad. It's maybe his version of Churchill's point about democracy being the worst form of government except for all the others. Having giggled over the idea of our Senate as a House of Lords, I must admit I chuckled even harder at the second plan on Gerry's list. Can you imagine if during George W. Bush's eight years in office he'd been able to select senators? Who's head would explode first, Michael Moore's or Sean Penn's?

Well before they adjourned for the day on June 7, the delegates took a vote. And here it is:

"On Mr. DICKINSON's motion for an appointment of the Senate by the State — Legislatures.
Mass. ay. Ct. ay. N. Y. ay. Pa. ay Del. ay. Md. ay. Va. ay N. C. ay. S. C. ay. Geo. ay."

Unanimous. Ten to nothing. Maybe if James Wilson and Robert Morris--the delegate who seconded Wilson's stand for popular election--had been the only two representatives from Pennsylvania it would have been nine to one, but the Constitution was signed by eight men from the Keystone State, so they could easily be out polled in their own delegation.

The chief point here, of course, is that while there was a bit of debate, the motion to have state legislators pick the senate passed as easily as it could have. By contrast, the vote on June 26 to have senators serve six year terms, staggered so that a third of the seats would be contested every two years, passed only seven to four. It just wasn't a very controversial move in 1787, letting states, rather than voters, choose the upper house.

In fact, it was so non-controversial a mode of selection that it also gets very short shrift in The Federalist Papers. Here, in number 62, is all that is said on the matter:

"It is equally unnecessary to dilate on the appointment of senators by the State legislatures. Among the various modes which might have been devised for constituting this branch of the government, that which has been proposed by the convention is probably the most congenial with the public opinion. It is recommended by the double advantage of favoring a select appointment, and of giving to the State governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems."

It's uncertain whether that was Hamilton or Madison writing, but that isn't important. What is significant here is the brevity and the tone. Notice the first sentence assumes this to be a matter of such little disagreement that it needn't even be elaborated on. Michael Myerson of the University of Baltimore has recently written a very fine book on appreciation of The Federalist, he nevertheless concedes that "some of these papers are a bit ponderous and repetitious," see Liberty's Blueprint, 2008, p. x. But the discussion of how senators are chosen is shorter than a two year old's attention span. By contrast, there is a whole paper--number 68--defending and explaining the method in which the president is elected.

Lots of things were bones of contention when the Constitution was being formulated. The powers of the president. The dreaded three-fifths clause. Whether the president would have a veto and then whether Congress could override it and if so how many had to vote to override it.

Letting the men in the state houses choose U.S. senators instead of the voters wasn't one of them.

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