The Good Constitution and The Sixteenth and Seventeeth Amendments: A Reply to Rossum

We are very grateful to Ralph Rossum for his generous response. In particular, he is very kind to note that our “arguments are interesting, powerful, intelligent, and . . . original.” We also appreciate his emphasis on the power of the syllogistic nature of our argument for originalism.

Rossum’s principal concerns center on the adequacy of the supermajoritarian process for constitution making. While he acknowledges its virtues, he observes that it gave rise to two amendments, the Sixteenth and Seventeenth, that he views as problematic. Rossum’s argument is a difficult one for us, because to be frank these are not our favorite parts of the Constitution. But while Rossum does a good job of pointing out their defects, we believe there is a lot more to say for these amendments as being part of a good constitution than he suggests. We argue here that the constitutional provisions these amendments replaced had significant defects and these amendments represented the views of a large portion of the populace – both when they were enacted and today. Thus, there is a reasonable case to be made that these amendments make sense as part of the Constitution, even if they don’t exactly represent our views.

To begin with, the selection of Senators by state legislatures that the Seventeenth Amendment replaced had serious defects. First, due to deadlocks in the state legislatures, this arrangement often led to no selection being made. Second, while in theory state legislative selection might have protected federalism, there is a strong argument – made by Michael Greve – that it did not. Michael argues that the expansion in national regulatory legislation during the Progressive and New Deal eras reflected the desires of the state legislatures, who wanted to be shielded by the federal government from competition between the states. Third, it is not clear how much real difference the Seventeenth Amendment made. At the time, many Senators were already being selected by popular votes that the states would then follow and it seems likely that this movement would have continued to grow. Finally the country had become far more democratic between the Framing and the early 20th Century and therefore it makes sense that the people would have wanted more democratic control over their Senators.

The regime prior to the adoption of the Sixteenth Amendment also had serious problems. The revenue needed to operate the federal government was then largely raised through the tariff, but this source of revenue has very substantial costs. It creates economic inefficiency by preventing Americans from buying goods from the cheapest provider, decreases competition with domestic producers, makes war more likely by decreasing the commercial ties among nations, and may have been regressive. Moreover, the vast expansion of taxes in the 20th Century might have still been allowed without the Sixteenth Amendment because the country could have used VATs to raise revenue, as they do in Europe. And given that every industrial democracy has an income tax, it would seem that the income tax has a certain popularity that also lends it support. It is true that it might have made sense to have adopted some kind of limit on federal revenues from all sources, but that only became clear over time.

Finally, Rossum’s suggestion of requiring a supermajority on the Supreme Court to invalidate a state or federal law is an intriguing one, but it would not promote originalism, just rule by current majorities who might or might not respect the original meaning of the Constitution. Certainly, the New Deal showed how far from originalism the legislature could move. We think the better alternative for restoring our Constitution is to create a culture of originalism, an enterprise that we, like Rossum, believe essential and imperative. Only that culture can revive the power of constitutional government by encouraging each generation of We the People, rather than each generation of We the Judges, to make the needed alterations to our fundamental law.


Obamacaid Revisited

In the pending Obamacare litigation, the plaintiff-states argue that Title II of the Affordable Care Act (“Obamacaid”) unconstitutionally “coerces” them to participate in a grand expansion of Medicaid. I’ve argued here and there that the plaintiffs will and should lose that argument. A terrific amicus brief by Vanderbilt Law School professor James Blumstein makes a powerful case on the other side. Ultimately, Jim’s brief doesn’t fully persuade me. But it comes very, very close on account of its recognition that Obamacaid’s crucial problem has to do with the bilateral risk of opportunistic defection from a pre-existing, quasi-contractual relation (Medicaid), not with some “economic coercion” story about federalism’s “balance” and the poor, pitiful states and their faithful public servants. (For ConLaw dorks: the key cases are Pennhurst and Printz, not South Dakota v. Dole or Steward Machine.) I hope to explain sometime next week; today, a few additional remarks on economic coercion. Read more