September 22, 2009
Two Tweaks to the Constitution
By Jon N. Hall
Sometimes, We the People discover that we have made a serious mistake, and we don't want to wait for the next election to correct it. In some states, voters can correct their mistakes with a recall election, such as the 2003 recall of California Governor Gray Davis.
The recall, however, is not available on the federal level. Federal officials are removed from office by either expulsion or impeachment. Congress uses expulsion. So, removal of bad actors in congress is a matter of elected officials ousting other elected officials; the electorate has no say in the matter. But is congress policing itself?
The U.S. Senate has not expelled a member since the Civil War, when 14 senators were expelled for supporting the Confederacy. Other than that, the Senate has expelled only one member in its 220-year history, William Blount in 1797.
Before the 17th Amendment (1913), U.S. senators were chosen by state legislatures. This amendment to directly elect U.S. senators was a very, very bad idea. There have been calls to repeal it, even in the Senate. In a fiery address in April 2004, Georgia Senator Zell Miller, a Democrat, introduced a measure to repeal:
The 17th amendment was the death of the careful balance between State and Federal Government. As designed by that brilliant and very practical group of Founding Fathers, the two governments would be in competition with each other and neither could abuse or threaten the other. The election of Senators by the State legislatures was the lynchpin that guaranteed the interests of the States would be protected.
Since the Senate never voted on Sen. Miller's measure, S.J. Res. 35, let's add a feature to it: the ability of state legislatures to recall and replace their U.S. senators.
Beyond treason and corruption, there are many reasons why a U.S. senator should be recalled. Recently, we've seen a fair amount of illness in the Senate: Sen. Kennedy's malignant glioma (brain cancer), Sen. Johnson's inter-cranial bleeding, Sen. Biden's aneurysms, etc. (Should America have to tolerate brain damage in what's billed as "the world's greatest deliberative body"?) Also, some senators are just too old. Sen. Strom Thurman set the Senate record at 100 years. Sen. Byrd is President pro tem of the Senate, therefore third in the line of succession to the Presidency. Byrd has been in the Senate for 50 years; he'll have his 92nd birthday this November. Our gerontocracy almost resembles those of the Soviets and the Red Chinese.
Because of the 17th Amendment, U.S. senators "own" their jobs. If a senator becomes incapacitated, a state will just have to accept not having representation. Because of the 17th Amendment, Minnesota had only half representation for more than 6 months while the 2008 election was contested, and is now represented by a comedian. Because of the 17th Amendment, Illinois has a U.S. senator chosen by a single man; a governor who was later impeached and removed. Is that a logical way to choose any representative?
At NRO, Bruce Barlett commented on Zell Miller's lonely crusade:
The Constitution originally provided that senators would be chosen by state legislatures. 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...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 [emphasis added].
It's been said that a ham sandwich can be indicted. Likewise, the grounds for recall of a U.S. senator can be unlimited. If the 17th Amendment were repealed, a U.S. senator would be a reflection of the judgment of the state legislature that chose him. If a U.S. senator sullied his office, he would be embarrassing and dishonoring his state legislature. But the main reason for recall would be disobedience; just as with other ambassadors, U.S. senators were never meant to be "free agents."
Polls show that the American electorate holds Congress in contempt. To set the ship of state aright, there is sometimes a desperate need for speed. Even if the electorate had the right to recall U.S. senators, State legislatures could do it far more speedily.
The Founders gave us the best system ever devised, and we destroyed a part of it in1913. Let's correct that mistake with a new amendment that repeals the 17th Amendment, and which gives the entire populace (and state legislatures) the right to recall officials they themselves elect.
Look at Congress, folks, is this the best America can do?
Jon N. Hall is a programmer/analyst from Kansas City.
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