Monday, May 23, 2005

Debunking a Myth About the U.S. Senate

On this eve of an apparent showdown in the Senate over the filibusters of federal judicial nominees, an anecdote has been making the rounds that purports to put George Washington on the side of the Senate obstructionists. An ACLJ article relates the story.

What this line of argumentation overlooks is a significant historical point that, to my knowledge, has been forgotten. The plain truth is that the Senate serves a different purpose from what the founders intended due to the 17th amendment to our Constitution that was enacted in 1913. This amendment changed the mode of senatorial elections.

Prior to 1913, the Constitution called for the state legislatures to elect Senators. Because bicameral state legislatures often failed to agree on a candidate, states' Senate seats often stood vacant. The 17th amendment was intended to solve that problem by moving the power to elect Senators to the people directly. This system reputiated the founders' intent as expressed by Alexander Hamilton in Federalist 60:
The House of Representatives being to be elected immediately by the people, the Senate by the State legislatures, the President by electors chosen for that purpose by the people, there would be little probability of a common interest to cement these different branches in a predilection for any particular class of electors.
In other words, George Washington was commenting to Jefferson about a design for the Senate that has been abrogated by the 17th amendment. Now the Senate serves to a far greater degree merely as a mirror image of the House of Representatives. Except, that is, for the filibuster, which until now has been applied to legislation, not judicial nominees.

Ironically, the trend has been towards a higher degree of democratic majority rule, through the expansion of voting rights, the direct election of Senators, and more recently through the movement to abolish the Electoral College for presidential elections. Perhaps this is straining out a gnat, but these revisionistic arguments supporting filibustering judicial nominees based on historical preservationism and alleged Senate traditions are growing tiresome.

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