But it appears I can access this "new post" page, so I'm just going to post my response to Rawjer's comment about repealing the the 17th Amendment here. My apologies.(though, as you can tell by the length of the post, I find it fascinating). Rawjer's post is in the post about "What I believe." (By the way, for you non-law students, and I guess even you law students, has the crap I've been talking about been unbearable to read, and you just sorta skip over it?)
And now back to my response to Super Jewboy:
Actually, I was referring to your use of the phrase "vox populi" which made it sound like you thought the 17th Amendment made things LESS populist, when in fact it makes things much MORE populist and nationalist, rather than federal. That was all I was saying...didn't you basically say something to the effect that the 17th Amendment makes gov't less responsive to the will of the people?
I think I'll begin with the argument about the "distinct advantage" in electing Senators differently, first by laying groundwork, and then making the point.
There's a dramatic difference from Madisonian conception of the system of checks and balances and the actual system which evolved. Madison viewed the separation of powers and checks and balances from an institutional standpoint, whereby the branches check each other through self-interest and pursuit of power and aggrandizement for their respective branches, that is, their interests lie in their institutional power. Thus, Congress has interest in Congressional power, and the Executive has interest in Executive power. The analogy or shift was from British mixed regime theory, whereby the King, the Lords, and the Commons, by the very nature of their composition of their constituencies, had inherent interests that checked each other. Lords have different interests than Kings, and Kings different interests from Commons etc, so each group naturally had its own interests that were embedded into English society, and thus served as a good framework for channeling self-interest.
America didn't have Lords and Commons and a King. They didn't have embedded societal interests that could be so fortuitously blended into a mixed regime. So Madison conceived of a system where the
institutions themselves give rise to institutional interests which will check each other. It doesn't matter what your background is if you're the President...as your interest will be assumed to be in making the Presidency more powerful...which will cause you to check the Congress. This is not how things are today. This Madisonian approach, while still alive and actively debated today, was vastly cut back and diminished by the introduction of the Supremacy Clause and Judicial Review (which the debates show only 2 of 55 convention delegates rejected), which allowed the court to adjudicate the divisions of power between the branches, that is, relegated what Madison saw as a distinctly political power struggle, into a system guided by the rule of law administered by the Judiciary. Rule of Law, not political struggle. This is most clearly illustrated by the Convention's outright rejection(four times!) of Madison's attempt to institute a co-executive/judiciary mode of political judicial review, which was ultimately replaced by judiciary judicial review.
The point of all of that nonsense? Madison's system is not the one that survived. In fact, the system of Framer's intent is not the system that emerged and we cannot view our current situation solely through their eyes. The mutation? Political parties. The system we see has to be re-understood in light of the emergence of such an enormously significant political development, and not from a long-past perspective. The existence of political parties is not accounted for in the original system, and thus we have to view the Constitutional system in its evolution to accomodate political parties, not in its pre-political party condition. (I guarantee you're thinking of Madison's "faction" analysis from Federalist 10 and Federalist 51 as a discussion of political parties, but it is not. His analysis of factions is a retrospective look at the excesses of majoritarian democracy, not prospective views on political parties. (If you want, I can go into a much deeper discussion about what he means by faction.) Madison is referring to precisely the same problem Gerry is referring to in the quotation you noted about the people being led astray, that is, the excesses of democracy.) The Framers created a much better system than they had intended, not because they foresaw all of the problems, but because the system was able to adapt to massive shocks and revisions.
More relevant to your analysis is that Madison's (and yours) conception of bicameralism is not relevant in an era of political parties. Besides the fact that Madison's institutional view of political power struggle is far less applicable in reality than in theory, political parties kill the utility of an internal legislative check. In both houses, it is clear that it does not matter how they are elected, it matters more which party they are affiliated with. Thus, changing the composition of the electorate makes absolutely no difference in checks and balances. In the past 6 years, had the Senate been elected by states as a republican majority, the results would have been the same.
In addition, in regards to campaign finance, I believe that with the decline in campaign finance there would be an increase of corruption. I believe it is easier to corrupt 51% of 300 state legislators with promises, gifts, money, and favors than it is to corrupt an electorate of 30 million. If you are concerned about special interests infecting campaign finance, I believe special interests will have a much more direct route to office. More specifically, I think it would be quite easy for the most powerful and influential people in any state to have an easy ticket to DC. That is, the Senate would be even
more aristocratic than it already is. To drive this point home, making the Senate more aristocratic, more elite, and more distant from the voting population was one of the specific rationales given for electing the Senate from state legislatures. The Framers WANTED an aristocratic Senate. Do we?
Also, I believe the Senate is by no means a clone of the House. The KEY aspect of bicameralism, unanimously agreed upon in the Convention, is a difference in the sizes of the house. Larger houses are more prone to demagoguery and the passions of the mob, while smaller houses are better for deliberation, but more open to corruption. These conclusions are relevant today, as the House is much much more lock-step and non-deliberative, while the Senate is more deliberative and manageable with 335 less people. But more importantly, both houses are dominated by backroom wheeling, dealing, negotiations, and party affiliations. NOT by actual deliberation. So why bother with repealing the 17th Amendment? What can be achieved in changing the composition of the two houses that cannot be accomplished by the fact that the HR is elected out of districts and the Senate by the whole state?
The utility of federalism is a wholly different issue that I don't think I'm going to tackle here. I do believe that there is great benefit and great necessity for federalism. But I also am acutely aware that federalism was the powder keg ignited by Lincoln's election which precipitated into the Civil War.
Jew. Apparently.
Jew. Easily.
