Liberty Forum on Originalism and the Good Constitution

I wanted to remind readers of this past month’s Liberty Forum on the new book by John McGinnis and me, Originalism and the Good Constitution.

The first essay by McGinnis and me set forth the basic claims of the book.

Richard Epstein then wrote a critique here.  Unfortunately, Epstein misunderstood our argument — assuming that we believe supermajority enactment rules always lead to good results, even if a class of voters, such as blacks, is excluded from the electorate.  But as we stated in our original essay and pointed out in our response here, our argument is that only appropriate supermajority enactment rules lead to good results and such rules need to include all portions of the country.  Still, Epstein’s piece did help to clarify certain aspects of our project.

Ralph Rossum also wrote a response here.  While Rossum praised portions of the essay, he wondered about the desirability of the 16th and 17th Amendments, which he regarded as normatively questionable.  We responded here, noting various problems with the pre-16th and 17th Amendment Constitution and reasons why these amendments reflected the values of a large portion of populace.

We want to thank both Epstein and Rossum for their comments and the Liberty Fund for providing a forum that allowed a productive exchange of views on our new book.

Reader Discussion

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on December 05, 2013 at 13:03:49 pm

In your response to Rossum and Epstein re: the 16th / 17th Amendments at LLB on 11/27 13, you say:
"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."

I am not certain that the second point you make has the validity that you would assert. Greve is citing actions of US Senators during the Proggie and New Deal eras. This is after the passage of the 17th Amendment (or at least primarily after), if one takes the start of the Proggie era as Wilson's Administration. Also, I thought the point of Greve's book was the predilection of states to engage in, or propose, anti-competitive schemes (as opposed to States and their Senators advancing individual state aims) aided by an "evolving" commerce clause interpretation by the Black Robes. So i am not clear as to whether your "support" (limited as it is) of the 17th Amendment is quite valid.

With respect to the nation becoming more democratic and the effect that had on voting expectations, you are, of course, quite right - and I suspect that ultimately, we would have ended up where we are now with direct election of US Senators. The concern of many is that with that method of election, the focus of US Senators is no longer their home State but, rather, a more national view - and with it, comes national fundraising, national donors, etc.
I am not certain that given the above, one can make a substantive case that the 17th was not a regression in Federalism and its structure.
Why not just admit, that it was a bad "consequence" and recognize that even a good constitution will, from time to time, experience this.

All that being said, I suppose I will have to add to my ever growing reading list and get your book. Yipes, i will be blind by spring!!!

take care

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