On this day 230 years ago, 39 delegates replaced the Articles of Confederation with the U.S. Constitution. The Constitutional Convention, which took place from May 25 to September 17, 1787, in Philadelphia, was intended to replace the Articles of Confederation. But the delegates ended up creating a new system of government.
All day, journalists and pundits will pay meaningless lip-service to the founding fathers.
If we truly wanted to honor those who put it all on the line to be free and later to ensure we would be free by codifying inalienable rights for the first time in human history, we should reverse several changes we made to their work of genius. Modern American political leaders aren’t any more “progressive” nor are they any smarter than our founding fathers. Though their hubris has convinced them otherwise, they are in fact more backward and ignorant in their understanding of the nature government.
Many of the changes we’ve made to the U.S. Constitution have eroded, not expanded liberty for the greatest number of citizens.
America was not founded on the principles of democracy, which James Madison lays out in the Federal Papers. A Republic has several major advantages over “pure Democracy,” as James Madison laid out in Federal Paper 10. But for the purpose of this article, we are only going to focus on protection against “factions.”
Factions are what we would describe today as special interest, though they aren’t just big corporations as many erroneously view them to be today. Delegates to the Constitutional Convention meticulously and contentiously debated the methods of electing those who would serve in the U.S. Senate.
To protect against factions and corruption, it was decided members in the upper chamber would be elected by state legislators, who in turn were elected by the people in that particular state. In our not-so infinite wisdom, we amended the U.S. Constitution by passing and ratifying the Seventeenth Amendment.
Progressives argued the need for the amendment was due to the special interest influence on state legislatures, and electoral deadlock. These arguments, which empirical data simply don’t support, were famously made in David Graham Phillips’ 9-part series published in Cosmopolitan entitled, Treason in the Senate.
In fact, neither main arguments had any merit whatsoever and popular senatorial elections led to increased special interest “rent-seeking” behavior and career politicians. From 1915 to 1917, the average tenure in the U.S. Senate was 5.1 years, less than a single term. After the ratification of the Seventeenth Amendment, that number exploded.
Why does increased tenure matter? The answer is simple. It cost too much to keep buying a new senator every 6 years.
George Mason University historian Todd Zywicki, quoted in a chapter of the 2013 book Our Virtuous Republic (OVR), explains:
Empirical tests have demonstrated support for the proposition that the movement from direct elections of senators was an attempt to change the institutional structure in which rent-seeking behavior took place. The Seventeenth Amendment increased the average tenure of senators, thereby making available a greater number of special-interest contracts, as well as increasing their durability and value.
In Munn v. Illinois (1877), the Supreme Court shifted away from previous protections of property rights toward their subservience to the “public interest.” Basically, they gave Congress the power to do regulation through legislation. Through regulation, special interest could now purchase a competitive advantage by supporting a candidate.
The snag, however, was in the lack of durability for purchased legislation. Regulation, as a whole, does not provide special interest groups with a lump-sum return. Therefore, a law’s durability dictates the value of regulatory policy. Absent seniority and incumbency, special interest cannot insulate favored laws from reconsideration in a subsequent Congress.
Via Our Virtuous Republic (OVR), Mr. Zywicki elaborates:
If the effectiveness of a legislative act can be guaranteed only until the next electoral session, the value of legislation to interest groups will decline. As a result, these groups will be unwilling to make substantial investments in purchasing legislation that may be obsolete within a few months or years, or which may require investment of further resources at a later date.
The problem of “trustworthiness” for both senators and special interest is easily alleviated through increased seniority. Senior legislators can be “trusted” to scratch each other’s back because they do not want to sabotage legislation they inevitably will sponsor in the future. If they want their agenda items to be considered and passed, they must be trusted to follow through on the quid pro quo.
The Sixteenth and Seventeenth Amendments, which were passed in a logrolling deal, were sold as mechanisms to further the people’s interest. But they’ve done nothing but concentrated power in and around Washington D.C., and created careerism in the now-derelict and unrepresentative U.S. Senate.
The Sixteenth Amendment gave the federal government a power the founders never wanted it to have–the power to tax individuals directly. It wasn’t a way to “punish the rich,” or “make them pay their fair share,” it was just another way to give special interests a competitive advantage and grow the power of the federal government.
OVR explains how these special interest groups rely upon what is referred to as “rational ignorance.” It’s not that most voters are stupid or incapable of making a rational decision. It’s that they make that decision without having all of or accurate information. Rational ignorance is the product of structural distractions imposed upon the electorate by the powerful to distract, and remove the incentive and ability for We the People to study the issues and vote accordingly.
So, year after year, we keep reelecting the same incompetent, corrupt politicians. I for one have no objection to abolishing direct senatorial elections and returning to the system our founders intended. As it turns out, they were smarter than us, after all.
UPDATED: In a follow-up article, we’ll look at the claims made by proponents of the 17th Amendment, including electoral deadlock and pre-Progressive Era corruption. As you might guess, the data simply don’t support either claim. Of course corruption existed. But the 17th Amendment without question made it far worse.