In 2001, Professor Rossum published a book titled, Federalism, the Supreme Court and the Seventeenth Amendment: The Irony of Constitutional Democracy. The book argued that the current 17th Amendment is against the spirit of safeguarding the rights of states that the founders established when they authored the Constitution. Here's how Bruce Bartlett describes the problems with the 17th Amendment in National Review.
The purpose was to provide the states — as states — an institutional role in the federal government. In effect, senators were to function as ambassadors from the states, which were expected to retain a large degree of sovereignty even after ratification of the Constitution, thereby ensuring that their rights would be protected in a federal system.It's that provision of states "instructing" their senators that led the progressives to pass the 17th Amendment with predictably awful results for those of us who like limited government.
The role of senators as representatives of the states was assured by a procedure, now forgotten, whereby states would “instruct” their senators how to vote on particular issues. Such instructions were not conveyed to members of the House of Representatives because they have always been popularly elected and are not expected to speak for their states, but only for their constituents.
The reason I mention all of this is that a CMC alum, David Dreier CMC '75 has come around to supporting something else that is dangerous in light of the controversies surrounding the gubernatorial appointment of senatorial replacements that were exposed in the ongoing Roland Burris-Rod Blagojevich scandal. Congressman Dreier wants to "perfect" the 17th Amendment and has thrown his support behind a proposal that would amend the Constitution so that the people elect the replacement senator in a special election.
Is that a good idea? Not so fast, argues Heritage Foundation scholar, Matthew Spalding, CMC '83, who testified against the amendment yesterday. Dr. Spaulding's arguments are well worth reading, but beyond the scope of this blog post.
Apparently, Spalding spoke with Rossum before Spaulding testified. I asked Rossum, who is my advisor, about the proposal. Here is what he wrote to me,
Briefly, the reasons against:If a senator needs to be replaced without six months of the next general election, there is not time to elect a senator, but there certainly is time for the governor to appoint a senator and ensure full representation of the state during the crucial budget season -- or for any other critical vote.If there were a terrorist attack on the Capitol killing enough senators to deprive the body of a quorum, the ability of governors to fill quickly the Senate's ranks would be essential.If any state wants to do what Feingold wants them to do, the current language of the 17th Amendment permits them to adoptly legislatively exactly what he wants to impose on all constitutionally.