Know Your Founders? Meet Joe Bristow.

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.

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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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