States don't have legitimate interests, people do

Intellectuals playing around with the idea of going back to indirectly electing senators don't get it

By Jonathan Bernstein

Published May 17, 2010 3:18PM (EDT)

Conservative intellectual Bruce Bartlett has been making suggestions for constitutional reform lately. In addition to advocating for a Big House (of Representatives), Bartlett is also questioning the wisdom of the 17th Amendment, which provides for direct election of senators. 

I was trying to start a post on the probable consequences of that reform, but I just can't seem to get over how improbable that particular reform would be. Obviously, constitutional amendments are hard.  Beyond that -- well, it's a bit tricky. On the one hand, there is a story we tell ourselves about a constantly expanding electorate (after beginning with a lot of restrictions, first it expands to all white men, then to women, then eventually to African Americans, then to younger voters...). That story is as much myth as fact. (We've had plenty of disenfranchisement in American history.) But I do think it's true that the kinds of indirect voting envisioned in the original Constitution for the Senate and for the president is widely seen as undemocratic, and it's very hard to imagine this particular reform succeeding. It's hard to imagine the consequences of a reform if it's hard to imagine the changes that would have to take place in order for that reform to pass.

What I'll do instead is to comment briefly on Bartlett's claims about states, which I strongly disagree with.  Of indirect voting for Senators, Bartlett says:

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...When senators represented states as states, rather than just being super House members as they are now, they zealously protected states' rights. This term became discredited during the civil rights struggle of the 1960s as a code word for racism -- allowing Southern states to resist national pressure to abolish racial segregation. But clearly the states have interests that may conflict with federal priorities on a wide variety of issues that defy easy ideological classification.

I think that's wrong on the history (states' rights was always about white Southerners and race). More to the point, I think that it gets wrong something that is well worth getting right.  Bartlett is wrong that states have "interests," or at least ones that should be protected by the political system. People and groups have rights and interests, and there is far too much diversity within states to talk about the people who live in a state as a meaningful political group.

But I don't see any reason that states should not be strong and meaningful political units, even without rights or interests of their own. Because what one can argue did get wrongly discredited by white Southerners' bigotry over time are the values of local control and variation.  Federalism is in my view an excellent Madisonian device for avoiding the tyranny of majorities and thus strengthening the Republic, even if it's one that Madison himself didn't really like all that much.  And I like multiplying avenues for political activism, and I also like the whole laboratories of democracy thing.  Of course, those arguments apply to local governments as well as state governments.

Now, in the world of practical politics, where one stands on local control is generally determined by where one sits, and in particular partisan considerations.  Republicans support state self-determination when Democrats have unified control of the national government, and vice versa.  I don't recall reading a good recent discussion of which things ought to be controlled locally and which nationally, but I would like to see one. I don't think that conceptualizing states as having interests, much less rights, gets us there, however.

Jonathan Bernstein

Jonathan Bernstein writes at a Plain Blog About Politics. Follow him at @jbplainblog

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