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Impearls: Alexis de Tocqueville on the 17th Amendment

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Earthdate 2005-09-19

Alexis de Tocqueville on the 17th Amendment

Glenn Reynolds the Instapundit, in his alternate forum over at MSNBC, has a piece titled “Repeal the seventeenth amendment? How can we build a better Senate?,” whence he writes: 

[T]he Senate hasn't been distinguishing itself in the Roberts hearings.  In fact, I haven't seen anyone — with the exception of some self-congratulation by the Senators on the Judiciary Committee — who's impressed with the job that those Senators are doing.  They talk too much, they listen too little, and they often — despite having had weeks to prepare, and despite, presumably, being the best legal minds in the Senate — get the law wrong.  […]  It's enough to make you lose faith in the institution.  It's even enough to get some people calling for a repeal of the Seventeenth Amendment, which required direct popular election of Senators, whose selection was previously left in the hands of state legislatures.

I don't know what I think of this idea — you want to think that anything would be an improvement over what we've got now, but heck, that's probably what people thought when we ratified the Seventeenth Amendment — but I have heard it proposed more than once recently.  (Some somewhat more serious criticism of the Seventeenth Amendment can be found here.)  And this is surely a bad reflection on the Senate as it exists now.

Reynolds goes on to relate his own somewhat different idea for improving the Senate, which I won't get into here (follow the above link to his article to read about it).  Glenn also points in his piece to others' discussion of the issue, one of which, an article by Bruce Barlett in National Review Online, I've carried through here and the quoted link above.

What I want to bring forward into this amalgam is profound French observer of early American democracy Alexis de Tocqueville's perceptive insights into the matter of the quality of the Senate — writing back in 1838, three-quarters of a century before the 17th Amendment to the Constitution was ratified almost a hundred years ago in 1913.  Tocqueville wrote: 1

There are some laws, democratic in their nature, which nonetheless succeed in partially correcting democracy's dangerous instincts.

When one enters the House of Representatives at Washington, one is struck by the vulgar demeanor of that great assembly.  One can often look in vain for a single famous man.  Almost all the members are obscure people whose names form no picture in one's mind.  They are mostly village lawyers, tradesmen, or even men of the lowest classes.  In a country where education is spread almost universally, it is said that the people's representatives do not always know how to write correctly.

A couple of paces away is the entrance to the Senate, whose narrow precincts contain a large proportion of the famous men of America.  There is scarcely a man to be seen there whose name does not recall some recent claim to fame.  They are eloquent advocates, distinguished generals, wise magistrates, and noted statesmen.  Every word uttered in this assembly would add luster to the greatest parliamentary debates in Europe.

What is the reason for this bizarre contrast?  Why are the elite of the nation in one room and not in the other?  Why does the former assembly attract such vulgar elements, whereas the latter has a monopoly of talents and enlightenment?  Both spring from the people, both are the result of universal suffrage, and as yet no voice has been raised in America declaring that the Senate is hostile to popular interests.  Whence, then, comes this vast difference?  I can can see only one fact to explain it: the election which produces the House of Representatives is direct, whereas the Senate is subject to election in two stages.  All citizens together appoint the legislature of each state, and then the federal Constitution turns each of these legislatures into electoral bodies that return the members of the Senate.  The senators therefore do represent the result, albeit the indirect result, of universal suffrage, for the legislature which appoints the senators is no aristocratic or privileged body deriving its electoral right from itself; it essentially depends on the totality of citizens; it is generally annually elected by them, and they can always control its choice by giving it new members.  But it is enough that the popular will has passed through this elected assembly for it to have become in some sense refined and to come out clothed in nobler and more beautiful shape.  Thus the men elected always represent exactly the ruling majority of the nation, but they represent only the lofty thoughts current there and the generous instincts animating it, not the petty passions which often trouble or the vices that disgrace it.

It is easy to see a time coming when the American republics will be bound to make more frequent use of election in two stages, unless they are to be miserably lost among the shoals of democracy.

I have no objection to avowing that I see this system of election by two stages as the only means of putting the use of political freedom within the reach of all classes of the people.  Those who hope to make it the exclusive weapon of one party, and those who fear it, seem to me to be making equal mistakes.


1 Alexis de Tocqueville, Democracy in America, 12th Edition, 1848, edited by J. P. Mayer, translated by George Lawrence, Anchor Books, Doubleday and Co., Inc., New York, 1969; pp. 200-201.  For more on Tocqueville check out Impearls' previously published “Tocqueville acknowledgments and links.”

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