Revisiting the 17th Amendment

This blog has been a proponent of repealing the 17th Amendment. Mostly this was due to a concern that the balance of power between the States and the Federal Government had shifted too far. But this proposal is more about the ends that we would hope to promote through the means of the amendment's repeal. That is, some mechanism needs to be devised and implemented to give the States direct representation and a systematic say in crafting federal legislation. This was the idea of the Founders' original mode of senatorial selection, and it is this sort of structural rebalancing that provides the only hope of restoring the concept of enumerated, delegated powers at the federal level. A structural fix would provide the flexibility of needed to enact federal responses to problems deemed truly federal, while giving the States a direct responsibility in this formulation.

However, Jon Roland brings up a great point in his article:

Proponents for such repeal argue for the original intent of the election of U.S. senators by state legislatures that it would better serve to protect the reserved powers of the states from encroachment by the central government, and that state legislators would bring more expertise to the selection process.

Unfortunately, that never worked as it was designed. What actually happened was that special interests, such as banking, railroads, oil, and steel, found that they could buy tU.S. senators for a lot less through state legislators than through direct popular election.

Most state legislatures had no strong desire to protect their citizens from the central government. They were more interested in getting federal money. Accepting large donations in exchange for voting for the U.S. Senate candidate of choice of the donor was a matter of almost all upside and little downside.

There is a reason why by 1912 so many state legislatures were holding popular referenda to nominate U.S. senators and then just rubber-stamping the popular choice.

So point taken.

This blog's specific proposal goes beyond just repealing the 17th Amendment. Section 3 empowers State Legislatures to remove its senator, ensuring that a State's senators have its government's desires and interests in mind. Section 4 is designed to address the aspects of the original design and congressional "fix" that led to the deadlock and corruption that Progressives were fighting when they proposed the 17th Amendment.

Jon Roland's specific proposal is to change the nominating process for senators to sortition. His proposed amendment states:

Members of the United States Senate, and houses of state legislatures whose members represent political subdivisions not based on population, shall be selected by a multi-stage nominating process that first randomly selects precinct panels of twenty-four, who then elect a person from each precinct, from among whom are randomly selected twenty-four persons for the next higher jurisdiction or district, and thus by alternating random selection and election to the next level, when they reach the top level, the number of randomly selected candidates shall be five, who shall be the nominees on the ballot for the final election by general voters, except that general voters may write-in other persons. Voters may vote for more than one nominee, using the method of approval voting. There must also be an alternative of "none of the above". The nominee receiving the most votes shall be declared elected, unless "none of the above" wins, in which case the position shall remain vacant.

The concern with this proposal is the quality of candidate a random selection process would produce. Taking the average Joe off the street and sticking him in the Senate would not fill me with much inspiration and hope for the Senate. Nevertheless, one key element of the Constitutionalism article that is absolutely required, assuming that a State Legislature should not choose a State's senator because of the increased chance of corruption, is the use of a different type of election procedure,

"Voters may vote for more than one nominee, using the method of approval voting."

The nominating process in America is badly broken, and this might be a good place to start thinking about how to change it. Perhaps if the random selection could be from the State Legislature itself or from among the leading people of each state's community (business, academia, medical, legal, religious, etc) and the selection from that seeded list could be via sortition, we could get to a process of senatorial selection that could bring the voice of the States back into the structure of the federal government while still minimizing the chance of corruption and deadlock.

Either way, it's heartening to see the interest in exploring this topic spread. At least people are thinking about it.

The morality of fairy-tales

If you really read the fairy-tales, you will observe that one idea runs from one end of them to the other—the idea that peace and happiness can only exist on some condition. This idea, which is the core of ethics, is the core of the nursery-tales. The whole happiness of fairyland hangs upon a thread, upon one thread. Cinderella may have a dress woven on supernatural looms and blazing with unearthly brilliance; but she must be back when the clock strikes twelve. The king may invite fairies to the christening, but he must invite all the fairies or frightful results will follow. Bluebeard's wife may open all doors but one. A promise is broken to a cat, and the whole world goes wrong. A promise is broken to a yellow dwarf, and the whole world goes wrong. A girl may be the bride of the God of Love himself if she never tries to see him; she sees him, and he vanishes away. A girl is given a box on condition she does not open it; she opens it, and all the evils of this world rush out at her. A man and woman are put in a garden on condition that they do not eat one fruit: they eat it, and lose their joy in all the fruits of the earth.

--G.K. Chesterton, "All Things Considered"

The morality of fairy-tales

If you really read the fairy-tales, you will observe that one idea runs from one end of them to the other—the idea that peace and happiness can only exist on some condition. This idea, which is the core of ethics, is the core of the nursery-tales. The whole happiness of fairyland hangs upon a thread, upon one thread. Cinderella may have a dress woven on supernatural looms and blazing with unearthly brilliance; but she must be back when the clock strikes twelve. The king may invite fairies to the christening, but he must invite all the fairies or frightful results will follow. Bluebeard’s wife may open all doors but one. A promise is broken to a cat, and the whole world goes wrong. A promise is broken to a yellow dwarf, and the whole world goes wrong. A girl may be the bride of the God of Love himself if she never tries to see him; she sees him, and he vanishes away. A girl is given a box on condition she does not open it; she opens it, and all the evils of this world rush out at her. A man and woman are put in a garden on condition that they do not eat one fruit: they eat it, and lose their joy in all the fruits of the earth.

–-G.K. Chesterton, All Things Considered

The plain-ness of it all

There is a series of little articles that G.K. Chesterton wrote bundled in the book All Things Considered. In the article "Patriotism and Sport," Chesterton writes:

But the real historic strength of England, physical and moral, has never had anything to do with this athletic specialism; it has been rather hindered by it. Somebody said that the Battle of Waterloo was won on Eton playing-fields. It was a particularly unfortunate remark, for the English contribution to the victory of Waterloo depended very much more than is common in victories upon the steadiness of the rank and file in an almost desperate situation. The Battle of Waterloo was won by the stubbornness of the common soldier—that is to say, it was won by the man who had never been to Eton. It was absurd to say that Waterloo was won on Eton cricket-fields. But it might have been fairly said that Waterloo was won on the village green, where clumsy boys played a very clumsy cricket. In a word, it was the average of the nation that was strong, and athletic glories do not indicate much about the average of a nation. Waterloo was not won by good cricket-players. But Waterloo was won by bad cricket-players, by a mass of men who had some minimum of athletic instincts and habits.

Chesterton often turns conventional wisdom on its head, and since today's conventional wisdom is typically only the wisdom of his day stretched out and taken to its logical (and oft times illogical) extremes, many of his insights are as insightful today as they were in his own time. It is fashionable today to bemoan the state of America - her politics, her job market, her "lost" liberties, her social inequality, her international reputation, her antiquated institutions, her professionalization of many aspects of society... the list can go on and on. In some ways, we are right to worry about these things, as constant evaluation of where you are helps with the mid-course corrections needed to get to where you are going. I think that, however, we sometimes lose sight of the winding road's long course for fear of the numerous potholes we are swerving to avoid. The state of the United States now looks a lot like Rome in its decline, they say.

For all I know, we might look a lot like Rome in decline. I wouldn't know; I never lived in Rome. But I have studied this country and lived with her people for almost four decades, and that experience does give me the ability to say a few things about the U.S. Americans are a hard-working, innovative people who are very engaged in their families and communities. States and the nation as a whole produce bright, energetic leaders and thinkers who work to make things better for the country. We know how to compromise to avoid extremes, and we have a uniquely American way of doing things. We've been stumbling about for over two hundred years, but somehow we continue to find a way to stumble forward.

By all rights, the United States should not be a great power - we are loosely organized and governed, we are not good at managing complex systems, we have multiple-layers of power and thousands of points of responsibility. Yet we have constantly risen to meet challenges that threaten us. Time and again, we have shown that we can come together and beat the odds. We reinvent ourselves and, somehow, end up on top - or at least among the leaders.

I attribute this to the grit of the average American. We live passionately and love our families, communities, and country, yet we fight constantly - among ourselves with words and too easily against other peoples with weapons. We believe in who we are, yet we find ways to treat each other as humans to tolerate dissent and conversation. We hate government, yet we continue to find creative ways to channel it to solve societal ills even as we turn around again to constrain and shackle it. We are full of paradox, yet we are guided by an everyday plain-ness, and average-ness, that is really not all that plain or average.

The United States is not perfect as a country. But Americans as a people are not Romans, and history does not repeat itself. At least not in the way most of the Talking Heads mean.

Three reasons why the individual mandate is unconstitutional

The Cato Institute has three well-reasoned arguments for why the individual mandate for health-care insurance is not constitutional.

Who's the conservative now?

Current uses of the words "conservative" and "liberal" have nothing to do with their traditional meaning. Well, that is not exactly true. They have, perhaps, too much to do with their traditional meaning given the fact that they seem to mean the same on the surface, but the animating spirit is completely different. Two hundred years ago, liberals believed in moving beyond personal government, in the form of the monarchy, to impersonal government, typically defined as what was then known as republican government. Conservatives sought to use the power of government to maintain the status quo and prop up existing power structures. There was not, however, any disagreement over the nature of man - that he needs restraint - or the proper role of that good government can play.

Over the course of the past one hundred years or so, these definitions were turned on their heads within the American context. Liberals became those who believed in the fundamental goodness of man for whom government could be used to advance the plight of man, and conservatives were those who, in the best spirit of the old Liberals, believed in the original sin of man who needed boundaries and hedges to keep an ordered society, those in government being no different (hence, separation of powers and checks and balances). The conservative commitment to republican values was, at heart, a commitment to the constitutional values that had made the experience of government a successful one, even if inefficient and unwieldy.

Over the past fifteen years, however, a phenomenal and dangerous blurring has occurred. The conservative paradigm has been petrified to the point that government itself is seen as the root of all problems. Rather than a properly-formed government being seen as a barrier against the more destructive inclinations of men, government of any kind is now seen as the barrier to all the good inclinations of men. It's some strange hibrid of the American-liberal vision in the goodness of men and the danger inherent in the original conservative perspective that the government that governs best is the one that rises the boat of the guilded interests. The rallying cry of the day is "No new taxes!"

On the other hand, the liberal paradigm has petrified to believe that government is the source of all goodness and the only savior of humanity. Because people are not to be trusted to conduct their affairs in honorable and virtuous ways, government regulates every possible area of life. Religion is banished from the public square, conviction is seen as the sign of a fanatic, so we are left with the only moral compass available to a society whose only remaining binding institution is the government: a thing must be deemed constitutional before it can be deemed moral. And since the ever-growing government has crowded out all room for virtue and compassion, welfare and social justice must be the business of federal agencies who, ironically, deliver the exact opposite of social security and medicare. It's some strange hibrid of the American-conservative vision in the evil of men and the danger inherent in the original liberal position that the government that governs best is impersonal. The plaintive cry of the day is "If we just spent more..."

I generally fancy myself a Constitutionalist, in an attempt to identify with the values of the eighteenth-century liberal and the twentieth-century conservative. But this week I am a Democrat as the Senate is taking up financial regulatory reform. I have to wonder if the Republican Party has completely lost its mind with its opposition to the severely anemic bill introduced by Senator Dodd. I can only hope that Senator Lincoln's bill will receive enough support for its main provisions to be adopted in any compromise bill the Senate crafts.

Even the sorriest of attempts to put some rules around the derivative trading and overleverage that led the U.S. economy into the worst recession since the 1930's is met with opposition by the Party that is supposed to believe that man requires boundaries and hedges to prevent him from doing his worst. Rather, we see the Republican lack of trust in government extending to functions that once received near unanimous agreement as fundamentally governmental. I see this as somewhat ironic, since the Bush Administration's (apparent) trust in government extended to functions that once received near unanimous agreement as fundamentally off-limits to government.

The world indeed has been turned on its head.

On Paradoxes: freedom that leads to bondage

If there is one thing that is sure about Western society, and American culture in particular as personified by the worst of Hollywood caricatures, it is that it is full of paradoxes. Chesterton pointed out a number of these that have only blossomed into full-orbed mind-benders since his day. To sample from the endless supply:

• Despite our conventional wisdom, man is the homemaker and woman is the ruler of the home, even if she is not its titular head.


• The modern matyr is discounted because their supposed sacrifices for their cause are nothing more than mere inconvenience that drunks take upon themselves for fun.


• Nothing is allowed to remain in secrecy except for those things that are too obvious to be named and those things that really are too important to bear telling.


• We look to our doctor for which well to pull water, rather than simply for the effects of drinking water to begin with.

I could go on and on, for Chesterton's essays in All Things Considered are treasure troves of insight and whit. But for this day, I want to look at a more recent paradox that has started to form on the dark horizon, one more recent (at least in its more malevolent form) than Mr. Chesterton's day. Namely, that our worship of human rights and freedom leads to debased and dehumanized bondage.

The Supreme Court yesterday in its case United States v. Stevens overturned a ten year old congressional statute that outlawed videos depicting animal cruelty. This continues a general trajectory that is at least fifty years old to analyze the morality (or, to use the terminology of our modern Republic, constitutionality) of a thing based on the most extreme case imaginable (which is usually in a different category of case anyway). Whether it really would ever happen that hunting videos would be prosecuted in Washington, D.C., where hunting is illegal, I do not have the foggiest of notions. To even ponder the scenario in the context of this case shows how far we've drifted from the vision of federalism, localism, and juries employed by the Founding Fathers. But I do have a clear notion that many pit bull and cock-fighting rings suddenly have new streams of legal revenue opened to them by virtue of this ruling.

In all our concern over whether the government ought to be able to tell someone whether they can record this or do that, we have lost all ability to know whether this or that should even be done in the first place. We protect the right of the pornographer to distribute his videos without even thinking of the dehumanization and objectification of the women he used to make the video. We concede control over to a woman to the point where a baby in the womb is not a human, but a fetus or, more sinister, a mistake. We have freed people married to each other from the "contract" of marriage in the name of privacy and they proceed to privately rip apart the lives of their children, leaving the public to help the kids pick up the pieces to their lives.

The seeds of analysis of this paradox are picked up in this excellent article by Weekend Fisher: The missing superego: removing religion from the public square. She writes:

So what happens when cultural expectations for ethical behavior are largely removed? What happens when a number of leading voices say that the ideas of "right" and "wrong" are meaningless or even destructive? What happens when prevailing voices say that morality is solely a private matter? In terms of our inner struggles, it means that the person can no longer enlist the help of the culture in taming his lower instincts. It means that the person develops a less-controlled animal side than would have developed otherwise. It leads to a stunted conscience.

The part of us that makes us communal or relational creatures - the superego, to use the Freudian term employed by Weekend Fisher - does not have the boundaries once erected by society, so we easily wander off into areas that are not safe for us. All men and women are slaves to something - jealousy, greed, passion, righteousness, demons, God. It is not an accident that we call a dastardly thing that disturbs us (even when we are not quite sure of the source of the disturbance) everything except what it truly is - wrong. In our commitment to be free, we do not recognize the shackles in which freedom binds us. Nor the binders that blind us.

For centuries, mankind struggled to overcome the license of tyranny that kings and emperors and governments claimed in order to wield arbitrary power over people. That's why the American Revolution was fought and why the Bill of Rights added to the Constitution. But never knowing when to stop, we have exchanged the license of tyranny for the tyranny of license. The sin of rulers in the distant past was their arbitrary application of power. At least they moved with purpose. In the name of freedom from control and power, we wander about aimlessly, content to have power (which abhors a vacuum afterall) applied to us arbitrarily.

Price of peace and union

"Just as the price of peace and union in 1789 was a bill of rights against the center, so the price of peace and (re)union in 1866 was a bill of rights against the periphery."
--Akhil Reed Amar, Bill of Rights