Know Your Founders? Meet Joe Bristow.

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To channel Glenn Beck, how well do you know the men who wrote our Constitution?  Washington, check. Madison, check. Hamilton, check.

How about Joe Bristow?

If you blinked at the name, don't feel bad. Kansas Republican Sen. Joe Bristow was the moving force behind the Seventeenth Amendment, adopted in 1913. It provides that "The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof." He's a Framer, though, and worthy of respect fully as much as the first three.

The Seventeenth Amendment has come in for some abuse lately. The critics' arguments fall into two general classes.The first is historical: the Seventeenth Amendment "wrecks" the system of checks and balances designed by the Founders.The second comes from political theory: A federal system would run better if the state governments are given representation to further their own interests in the Senate. I don't agree with the second; the people who advance it, however, are intellectually serious. Their arguments will be the subject of a later post.

The first argument is, well, bilge.

Back to Beck, a self-proclaimed authority on the Founders. In a June 12 broadcast, he said that "Madison explained that the House of Representatives would always be regarded as the "national" institution because its members were elected directly by the people. But the Senate, on the other hand, would derive its powers from the states." 

In fact, Madison's not a good authority for the greatness of the Senate as guardian of the states. Like all the Framers, Madison knew that there were flaws in the document he wrote. He fought tooth and nail for a senate in which Senators would be allotted according to population, as they are in the House of Representatives. In an equally apportioned Senate, he warned presciently, "the minority could negative the will of the majority of the people" and "extort measures by making them a condition of their assent to other necessary measures." Madison also hated the state governments so much that he wanted to give new federal government to an absolute veto on any newly passed state law.

That brings us to the idea that the old Senate was a noble palladium of great men in frock coats, while the new one is a squalid clown show. George Will wrote in a 2009 column that "the Framers established election of senators by state legislators, under which system the nation got the Great Triumvirate (Henry Clay, Daniel Webster and John Calhoun) and thrived."

But, as John Adams said, "facts are stubborn things." Remember how that noble 19th Century republic ended: in a catastrophic Civil War and more than 1 million dead Americans. That war was not a coincidence; it was caused by the flaws in the original Constitution.The free states outstripped the South in voters and population, but the slave states used their equal Senate votes to obstruct any move to restrict slavery. As for the "Great Triumvirate": Calhoun brought us the idea of nullification and the argument that slavery was "a positive good." Webster and Clay between them forged the disastrous Fugitive Slave Law of 1850, an amoral surrender of free-state principle that hastened the Civil War.

When Reconstruction gave way to the Gilded Age, the Senate, still elected by the Legislatures, took on a new function: the firewall of corporate privilege dedicated to blocking any progressive reform, no matter how mild. Beck told his viewers that popular election has ruined the Senate because it "allowed special interests to lobby senators directly, cutting out the middleman of the state legislatures." But by 1890, special interests owned the state legislatures; whenever a Senatorial election occurred, railroad barons, oilmen and monopolists descended on the state capitol and spread their cash like butter across the lawmakers' outstretched palms. As George H. Haynes, the leading historian of the Senate, wrote in 1912, legislative elections of Senators had "led not merely to an occasional assault and to fist-fights of the mob, but to threats of organized attack and resistance, and to the reign of martial law."

When special interests couldn't win election for their stooges, they often simply refused to allow any Senator to be named.  Between 1890 and 1900, no fewer than fourteen Senate seats simply remained vacant because of legislative deadlock.  In Oregon in 1897, the state House was so badly split over the Senate vacancy that it never convened at all.

The Seventeenth Amendment resulted from an extraordinary grass-roots campaign, one of the most sustained and powerful in American history. The first proposal for direct election was offered in 1826, but the movement reached flood stage after 1900. When the Senate refused to approve the amendment in 1910, popular fury led to the defeat of ten of the "no" votes. The next Congress meekly agreed to Bristow's amendment; it was ratified by state legislatures in less than eleven months--one of the fastest ratifications in American history.

The historical truth is that the original Senate was a botched compromise; that it failed in a number of grotesque ways; and that the current system is a result of popular outrage that makes today's Tea Party look like the Esperanto movement. Legislative election, thank God, will never be back. Bad rubbish, etc.

But the popular clamor against it is worth studying. It shows that much of the "constitutionalism" being peddled to the people is highly selective; much of the history that supports it is a combination of wishful thinking and bedtime stories. 

The real reason the Becks and Wills of this world favor repeal is simply this: a legislatively appointed Senate could be relied on to block progressive legislation. As Beck says, without popular election, "Obama's health care bill would never have seen the light of day." 

It sucks to lose a legislative vote. But only a charlatan blames the Constitution for the failure of his ideas. 

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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