Walther just published an article titled "The Supreme Court is the real Senate--for now":
First, I appreciate the posting of articles that may stimulate some discussion. So here goes.
The American Constitution is a fossil record. Beneath the rocky soil one finds layer upon layer of strange deposits, atavistic survivors of bygone eras, such as the Electoral College. One of the most curious specimens preserved in the sediment is the United States Senate.
Why does it continue to exist? With the ratification of the 17th amendment, the Senate's raison d'être was eliminated. Bicameralism has always called for a body of common representatives elected by the people and a revising upper chamber of appointed grandees.
Soon after the Constitution ratified by the thirteen states established Senators' election by state legislatures, two predictable problems appeared - legislative corruption and electoral deadlocks. Moneyed interests influenced the choices of Senators. Where both branches of state legislatures were controlled by one party, the appointment of a Senator would be to follow the objectives of that party - not necessarily for the good of the electorate. Because state legislatures were charged with deciding whom to appoint as senators, the system relied on their ability to agree. Some states could not, and thus delayed sending representatives to Congress in some cases for years. Between 1891 and 1905, 46 elections were deadlocked across 20 states
The former, as constitutional theorists have long argued, are prone to enthusiasms that must be checked by the wisdom and prudence of the latter, even — indeed, especially — when doing so might prove unpopular. Having two distinct bodies that are both said to directly represent the will of the same electorate is on its face nonsensical. (This is the argument often made against reforms that would turn the British House of Lords into a purely elected body.) The few powers the Senate continues to enjoy might easily be given to the House — or dispensed with altogether. Indeed, the most important of these, the ability to confirm judicial and other presidential appointments, is becoming purely ceremonial.
The Framers' purpose in having state legislatures pick a Senator was, as a delegate argued, that "commercial & monied interest [would] be more secure in the hands of the State Legislatures, than of the people at large." Since most states had two branches, "one of which is somewhat aristocratic," there would be a "better chance of refinement in the choice" of senators. "the great mercantile interest and of stockholders" would be better represented "if the state legislatures choose the second branch." Madison added that the "Senate ought to come from, & represent, the Wealth of the nation. State legislatures, themselves an elite group, would likely select a senate that looked very much like themselves. Such a propertied body would serve to protect the interests of the commercial and mercantile classes.
Britain, as a country, has never extended beyond its island. By the time the Seventeenth Amendment was ratified, the U.S. was composed of forty-eight states. Forty-one of their legislatures ratified the Amendment. One turned it down. Six more took no action. Has the ratification of any Amendment been more popular among those legislatures whose upper bodies exercise "wisdom and prudence"?
This is not to suggest that we no longer have a de facto upper chamber. The real Senate of the United States meets not in the north wing of the Capitol but just across First Street. I mean, of course, the Supreme Court.
Walther in this article in This Week approaches his point irregardless of the nonsensical foundation. His raison d'être is to target the Supreme Court. With the influx of billions of dollars into the midterm elections, no one is going to argue that the "great mercantile interests" do not have a significant impact on the choices of all Congressional members. Should we have state legislatures appoint Senators, we can only imagine the amount of money at the state level that would buy their chosen candidates. Arguably, the Senate has been neutralized by those monied interests instead of working for the good of the people to check executive power and resultant judicial interpretations when the executive and legislative conflict. Somehow the Seventeenth Amendment is to blame. Our Senate should be like the House of Lords and we are the worse off for it. The direct result is the federal judicial system deciding matters of constitutionality.
Americans like to split their ballots with Senators from one party elected over candidates from the party that controls the state legislatures. Examples,
In the 2018 midterms, all these eight Senators either Democratic or Independent were elected sometimes overwhelming.
Arizona - Dem wins (Synema, 50% v 47%, flip)
Mich - Dem (Stabenow, 52% v 45.8% Rep, Incumb)
Minn - Dem (Klobuchar. 60% v 36% Rep, Incumb)
Mont - Dem (Tester, 50.3% v 46.8% Rep, Incumb)
Ohio - Dem (Sherrod Brown, 53% v 46.6% Rep, Incumb)
Penn - Dem (Casey, 56%v 42.6% Rep, incumb)
Va - Dem (Kaine, 57% v 41.1% Rep, Incumb)
W.Va - Dem (Manchin, 49.6% v 46.3% Rep, Incumb)
Wisc - Dem (Baldwin, 55% v 44.6% Rep, Incumb)
Eight of the nine are incumbents indicating their popularity with voters in their states who elected Republican legislatures. Without the 17th Amendment, the Senate could reasonably be composed of sixty-two Republicans and thirty-six Democrats and two Independents. The conclusion would be that Walther favors such dominance of one party in order that the Senate could prevent what he sees as a usurpation of authority by the Supreme Court.
Why is this not explicitly acknowledged, I wonder? Are the nine not appointed rather than elected? And do they not legislate, at times clarifying, at other points frustrating the will of the two lower chambers? When we read about the outcome of a case before the court we are told how the justices "voted." This should put paid to everything our middle school civics teachers tell us about the separation of powers and the disinterestedness of the judicial process. A perfect illustration of this is NFIB v. Sebelius in 2012, when, after some horse trading between Chief Justice Roberts and his liberal colleagues, the Supreme Court essentially revised the Affordable Care Act. This is exactly what upper bodies are supposed to do in bicameral legislatures.
Walther links an article that discusses "horse-trading" between Justices to reach a decision on the Affordable Care Act. Judges have become America's policymakers. And they're terrible at it.
Of course, that article's title is meant to appeal to a certain audience, too. That author feels the problem with the judicial system began,
This goes all the way back to Marbury v. Madison, the famous 1803 decision that established judicial review — the principle that the courts can invalidate legislation they think violates the Constitution, despite the fact such a power is nowhere mentioned in that document.
He quotes Jefferson's concerns about Marbury, then says
If we review American history, we must conclude Jefferson was absolutely right. The brief period of Warren Court progressivism is an exception from the overall historical pattern. American judicial system has routinely exercised tyrannical and unjust power, from helping to spark the Civil War by declaring all black Americans non-citizens, to protecting KKK terrorist murderers, to overturning civil rights legislation, to enshrining Jim Crow, to breaking strikes and unions, to gutting antitrust law, to declaring all taxes on interests, dividends, and rents unconstitutional, to banning all economic regulation to protect workers instead of business, and on and on.
That author, Ryan Cooper in The Week, concludes:
Instead of policy being written by the legislature to serve the interests of a majority constituency, then implemented by a legible state bureaucracy, in the United States a great deal of legislating happens through an unaccountable legal priesthood, whose very policy aims have be disguised by arcane rhetoric. The results speak for themselves.
Most other developed nations do not have this kind of hypertrophied legal system — in Denmark, for instance, courts have only invalidated a parliamentary law once. Neither conservatives nor social democrats there can get what they want by stuffing the courts with partisan hacks. They've just got to win elections. It might be worth trying someday.
We should be like Denmark? Some of these predate the Seventeenth Amendment. Is Walther's argument that these exercises of "tyrannical and unjust power" by the judicial system would have been avoided if state legislatures appointed Senators whose prudence and wisdom in acting for the good of the people representing the interests of mercantile class like the House of Lords?
I prefer voting for my Senator despite enduring endless ads, phone calls, door knocking, TMs, flyers, etc. for one candidate or another.
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